STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3697

) FLORIDA SCHOOL FOR THE DEAF ) AND THE BLIND, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in this case in St. Augustine, Florida on April 12, 1988, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, to determine whether Samuel White (Petitioner) should be dismissed as a dormitory teacher by the Florida School for the Deaf and Blind (Respondent). The parties were represented as follows:

For Petitioner: Samuel White, pro se

94 South Street

St. Augustine, Florida 32082

For Respondent: Barbara Staros Harmon, Esquire

Department of Education Knott Building

Tallahassee, Florida 32399

At the hearing, Petitioner testified on his own behalf. Respondent called eight witnesses and introduced thirteen exhibits. In accordance with Section 90.6063, Florida Statutes, Richard L. White was accepted as a qualified interpreter for deaf persons. No transcript of the hearing was filed. The parties did not file proposed recommended orders, although Petitioner did file a letter presenting closing argument which does not evidence service on counsel for Respondent.

FINDINGS OF FACT

1. Petitioner was employed by Respondent as a dormitory teacher I for approximately four years prior to his dismissal in May, 1987.

   
   

2. The incident which resulted in his dismissal occurred on May 2, 1987, on the second floor of James Hall, a dormitory for deaf students, where he worked as a dormitory teacher. At approximately 11:15 p.m., Petitioner told Tommy Downing, a student at the school and resident of James Hall, to go to bed. Downing was in another student's room at the time and was wearing a fabric vest used as a target for a toy laser gun. The testimony conflicts as to exactly what happened, but from a review of all the evidence and after considering the witnesses' demeanor, it is found that Downing, who was thirteen years old at the time, threw the vest at Petitioner, hitting him in the eye. Petitioner

   sustained no injury. As a result of the surprise of being hit with the vest, Petitioner threw a clip board he was holding in his hand in Downing's direction. Downing and Petitioner were approximately twelve feet apart at the time. The clip board struck Downing just below his elbow causing severe pain and swelling for which he required attention in the school infirmary. Downing became extremely upset as a result of the incident and it took staff some time to calm him down. Petitioner's action was grossly negligent and reckless, and exhibited an extreme disregard for the safety of Downing, as well as another student who was also in close proximity to the incident.

   
   

3. At the time of this incident, Petitioner was rated as "below" standards, with unsatisfactory communication skills and knowledge of his job. Good communication skills are very important when dealing with deaf students, and Petitioner's inabilities in this aspect of his job had been a repeated cause for his poor job performance and evaluations. Petitioner's personnel file reveals that he was placed on ten days administrative leave in December 1986, and was reprimanded in January, 1987 for failure to report to work.

   
   

4. After investigating the incident involving Downing and Petitioner, Respondent dismissed Petitioner from employment on May 30, 1987 "for violation of Article 26 of the Florida School for the Deaf and Blind Standards of Conduct." Article 26 provides a definition of "student abuse" and employee disciplinary standards relating thereto, as follows:

   
   

   Treatment under which a student is deprived, or allowed to be deprived, of necessary treatment, habilitation, care, sustenance, clothing, shelter, supervision, or medical services essential to his well- being; is permitted to live in an environment in which such deprivation or environment causes, or is likely to cause, impairment of physical or emotional health; or is subject to physical or psychological injury.

   1. First occurrence 3-day suspension to Dismissal

   2. Second occurrence Dismissal (Emphasis supplied.)

      
      

5. Respondent does not contest that Petitioner has timely sought a hearing to review the decision to terminate his employment.

   
   

6. According to Respondent's Personnel Director, Sam Visconti, the severest employee disciplinary action of dismissal is taken when an employee's action causes harm to a student, and the consequences or harm are severe. In this case, Petitioner's action did cause harm, with severe pain and swelling to Downing, and showed an extreme disregard for the possible consequences of his action.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes; Emergency Rule 6 DER 87-1, Florida Administrative Code.

8. The facts of this case clearly show that Petitioner acted recklessly and with gross negligence in throwing a clip board approximately twelve feet, whereupon it struck Tommy Downing below the elbow causing great pain and swelling. Petitioner's actions showed a disregard for the safety of Downing, as well as another student in close proximity to the incident. Being hit with a fabric vest thrown by Downing does not justify the extreme action taken by Petitioner. In accordance with Article 26 of Respondent's Standards of Conduct governing employees, dismissal may result for the first occurrence of treatment of a student which results in physical injury. The testimony of Respondent's Personnel Director fully explicated the school's policy for determining when student injury will lead to dismissal, and the facts of this case qualify for the severest employee discipline under the terms of that policy.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner as an employee.

DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988.

COPIES FURNISHED:

Robert T. Dawson, President Florida School for the Deaf

and the Blind

207 North San Marco Avenue St. Augustine, Florida 32084

Barbara Staros Harmon, Esquire Department of Education

Knott Building Tallahassee, Florida 32399

Samuel White

94 South Street

St. Augustine, Florida 32082

Docket for Case No: 87-003697

Orders for Case No: 87-003697