vs.
Case No. 13-3322TTS
Respondent.
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on November 12, 2013, in Bartow, Florida.
For Petitioner: Donald H. Wilson, Jr., Esquire
Herdman and Sakellarides, P.A. Suite 110
29605 U.S. Highway 19, North
The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
By letter dated July 29, 2013, the superintendent of Polk County Schools notified Respondent of the proposed agency action to terminate her employment on August 13, 2013. Respondent requested an administrative hearing by letter dated August 8, 2013. At its regularly scheduled meeting, Petitioner adopted the recommendation of the superintendent to terminate Respondent's employment and, on September 3, 2013, Petitioner referred the matter to the Division of Administrative Hearings to conduct a hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes.
At the hearing, Petitioner presented the testimony of four witnesses and offered 15 exhibits, which were entered into evidence. Respondent testified on her own behalf and did not offer any exhibits into evidence.
A one-volume Transcript was filed on December 4, 2013.
After the hearing, Petitioner and Respondent filed their proposed findings of fact and conclusions of law on December 13, 2013.
otherwise noted.
Petitioner ("Petitioner" or "School Board") is a
duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Polk
County, Florida, pursuant to article IX, section 4,
subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat.
Rosalinda Morales (Respondent) has been employed by the School Board for nine years and, concerning the matters at issue in this hearing, was a classroom teacher at Inwood Elementary School in Winter Haven, Florida. She was employed pursuant to terms of a collective bargaining agreement.
Inwood Principal Amy Heiser-Meyers (the "Principal") issued a letter of concern to Respondent on September 28, 2011, in which she reminded Respondent of the importance of timely confirming her students' attendance each day.
The Principal provided written confirmation of a verbal warning to Respondent by letter dated June 7, 2012, concerning Respondent's failure to advise the school she would be absent from work.
The Principal provided written confirmation by letter dated November 27, 2012, of a second verbal warning for Respondent's failure to advise the school that she would not be present and for arriving late at work on another occasion.
The Principal issued a written reprimand, following a conference with Respondent, by letter dated February 13, 2013. The written reprimand was the result of Respondent having failed
to follow specific instructions and not properly handling student documentation.
The Principal issued Respondent a second written reprimand by letter dated February 15, 2013, following a conference resulting from Respondent having submitted attendance records indicating that a student was present in class when, in fact, the student was absent.
By letter dated February 28, 2013, the Principal requested that Superintendent John Stewart suspend Respondent without pay for several incidences of ongoing misconduct. These included Respondent's use of inappropriate and disparaging student behavior techniques; Respondent being unaware that two kindergarten students had walked out of her class without permission; and Respondent's repeated use of obscenities and disparaging comments regarding staff members while present at the school. Dennis F. Dunn, the Assistant Superintendent for Human Resources, issued a letter dated March 4, 2013, giving Respondent a three-day suspension without pay as a result of this ongoing misconduct.
On July 10, 2013, the Principal wrote Superintendent Kathryn LeRoy again requesting a suspension without pay for Respondent as the result of Respondent's continued, ongoing misconduct in a number of incidences set forth in that letter involving failure to follow established school protocol, absence
from work, and her lack of knowledge of the whereabouts of young students. Based upon that letter, the assistant superintendent for human resources issued a letter, dated July 18, 2013, suspending Respondent without pay for five days.
Respondent never filed a grievance or any formal complaint contesting the above-described disciplinary actions taken as the result of her behavior.
On May 8, 2013, Respondent was teaching her kindergarten class. She had 18 students in her classroom. She was being assisted in her classroom that day by Ms. Ellistine Smith, a retired principal. Near dismissal time, at approximately 2:30 p.m., D., a student in the classroom, became disruptive. D. had behavior problems throughout the school year.
D. refused to stay in his assigned area and constantly disrupted lessons.
D. is known as a "runner," meaning he would run away from teachers or the campus in general. Respondent regularly had to chase D. to try to catch him. She would never be able to catch him because whenever she got close, he would again run away.
On that day, D. decided not to participate in class.
He removed his shoes and threw them at other students, at the ground, and at Respondent. He took off his shirt and threw it at students.
Respondent directed D. to go to time out, but he refused. Respondent asked Ms. Smith to keep an eye on the class while she removed D. from the classroom. Respondent looked outside the classroom for the paraeducator who normally sits in the hallway, but she was not present at that time. Respondent decided to take D. to the fifth grade building to have him stay with another paraeducator.
D. voluntarily walked with Respondent down the hallway to the fifth grade building. She was holding him by the wrist. When they arrived at the fifth grade building, D. resisted going further and tried to pull away from Respondent. She maintained a stronger grip on his wrist to prevent him from running away. Respondent then opened the door to the fifth grade building, did not see anyone, but heard the copy machine running in the copy room.
Respondent began to lead D. into the ESOL (English for Speakers of Other Languages) room outside the copy room, but he let his body go limp. Respondent lifted him to carry him into the building and towards the copy room, but could not go very far due to her petite stature. She dragged him a short distance to the copy room where Venise Stinfil, a third grade teacher was working.
Respondent left D. with Ms. Stinfil, stating that "[she] can't handle or deal with this at this time, because I'm
being observed." Respondent dropped the student's arm and returned to her classroom. Ms. Stinfil noticed scuff marks on D.'s shirt and that the shirt was very dirty and the student distraught.
Fifth grade teacher Erin Rodgers was also present at the time Respondent brought D. to Ms. Stinfil's room. She saw Respondent holding D. by his arm and dragging him a short distance into Ms. Stinfil's room.
Respondent did not intend to injure D., and he did not appear to have any physical injuries as a result of being brought to Ms. Stinfil's room.
Ms. Stinfil testified that her training would have led her to handle the situation with D. differently. When he went limp and laid on the floor, she would have talked with him to try and get him to stand up to move on to their destination rather than taking him by the wrist and pulling/dragging him along. If the student refused to get up, she would have called someone from administration, who was trained in handling such situations, to help talk the student into compliance or appropriately help him up and move to their destination. She had been trained to never put her hands on students.
Respondent acknowledged that the procedures she used in taking D. from her classroom might not have been the preferred
method in which other teachers had been trained, but it was a choice of handling such matters she had used before.
Respondent received a letter from Mr. Dunn dated July 29, 2013, advising her that Superintendent LeRoy would
recommend her termination from employment at the next meeting of the School Board on August 13, 2013. When Respondent requested a hearing concerning the termination, she was suspended without pay pending the outcome of this matter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 1012.33, Fla. Stat.
The School Board is the duly-constituted governing body of the School District of Polk County. Art. IX, § 4, Fla. Const.; §§ 1001.30 and 1001.33, Fla. Stat. A district school board has the statutory authority to adopt rules governing personnel matters pursuant to sections 1001.42(5), 1012.22(1), and 1012.23.
In Florida, the district superintendent has the authority to make recommendations for dismissal of school board employees, and the school board has the authority to suspend without pay school board instructional staff with professional service contracts for "just cause." §§ 1001.42(5), 1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.
Petitioner bears the burden to prove the charges against Respondent by a preponderance of the evidence. Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990), citing Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990); McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1976); § 120.57(1)(j), Fla. Stat.
The preponderance of the evidence standard requires proof by "the greater weight of the evidence" or evidence that "more likely than not" tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000); see also
Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 446 (6th Cir. 2005)(holding trial court properly defined the preponderance of the evidence standard as "such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true").
Just cause is defined to include misconduct in office.
See § 1012.33(1)(a), Fla. Stat.
Florida Administrative Code Rule 6A-5.056 concerns suspension or dismissal of instructional personnel. The rule provides in pertinent part:
"Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in
Rule 6B-1.001, F.A.C. [this rule has been transferred to rule 6A-10.080];
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C. [this rule has been transferred to 6A-10.081];
A violation of the adopted school board rules. . . .
"As shown by careful reading of Rule 6B-4.009 [this rule has been transferred to rule 6A-5.056], the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule that (2) causes (3) an impairment of the employee's effectiveness in the school system." Miami-Dade
Cnty. Sch. Bd. v. Regueira, Case No. 06-4752 (Fla. DOAH Apr. 11, 2007). For ease of reference, the second and third elements can be stated as one: "resulting [in] ineffectiveness." Id.
Florida Administrative Code Rule 6A-10.081 provides, in part, as follows:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
The facts of this case, as supported by the testimony and evidence at hearing, confirm that Respondent's effectiveness as an educator has been impaired. See Purvis v. Marion Cnty.
Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d DCA 2000); and Summers v.
Sch. Bd. of Marion Cnty., 666 So. 2d 175 (Fla. 5th DCA 1996).
Article 4 of the Collective Bargaining Agreement for Polk County applicable to Petitioner's teachers provides, in part, as follows:
4.4 Just Cause: No teacher will be disciplined, reprimanded, suspended, terminated or otherwise deprived of fringe benefits or contractual rights during the term of his/her contract without just cause. No teacher shall be demoted from continuing contract/professional service contract to Annual Contract nor be deprived of his/her contractual salary for the remainder of the contract year without just cause. No teacher will be relieved from a supplemental position during the term of that supplemental contract without just cause. Refer to 14.4-1 for discipline concerning supplemental positions. Any teacher terminated during the term of his/her contract shall be entitled to a fair hearing based on due process.
4.4-1 Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: (1) verbal warning in a conference with the teacher. (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference;
(3) suspension without pay for up to five days by the Superintendent and (4) termination. "Letters of Concern" are not a form of discipline.
The undisputed facts of this case, as admitted by Respondent, are that she dragged (even if only a short distance) a small child by his wrist or arm across the floor, depositing the child with other teachers she asked to look out for him while she was being evaluated in her classroom. The teachers who observed Respondent's actions were concerned about the welfare of the child and agreed the matter should have been handled other than through the use of physical force on the child.
The three experienced teachers who testified at the hearing agreed that the use of physical force in moving the child from Respondent's classroom to another classroom would never be appropriate. At least one of those testifying had been trained in the appropriate procedures for removing a child from a classroom and moving him to another area, even if the child refuses to cooperate and "goes limp." The teacher should ask someone in administration for assistance in a matter such as this. There are staff members in the school who are specially trained to deal physically with a misbehaving or uncooperative child. Respondent was not trained to perform such duties.
Respondent's actions toward the child in question were inappropriate, placed the child's physical and emotional welfare
at risk, and constitute misconduct by Respondent. While this single act might constitute sufficient misconduct to result in Respondent's termination from employment with the School Board, it follows a long series of prior failures and acts of misconduct by Respondent. Respondent was previously disciplined over a relatively short period of time—about 18 months, during which she faced numerous incidences of failure to follow the adopted rules, inappropriate and disparaging behavior towards students, unexplained absences, and a failure to know the whereabouts of students on more than one occasion.
The progressive discipline process set forth in the Collective Bargaining Agreement requires far less than the numerous acts of discipline afforded Respondent by Petitioner, short of termination. Respondent has been given more than the benefit of the doubt. Petitioner and the Principal gave her more chances to improve her performance than are warranted by the facts and evidence presented at the hearing. A letter of concern, two verbal warnings with written confirmation, two written reprimands following a conference, a three-day suspension without pay, and a five-day suspension without pay, go above and beyond what is required by the Collective Bargaining Agreement concerning progressive discipline.
The final act which led to the proposed termination of Respondent, the removal of the student from her classroom on
May 8, 2013, took all her prior misconduct to another level and clearly justifies the sanction sought to be imposed here by the School Board.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a teacher.
DONE AND ENTERED this 17th day of January, 2014, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2014.
Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP
Herdman and Sakellarides, P.A. Suite 110
29605 U.S. Highway 19, North
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
