vs. ) CASE NO. 88-5720
) CASE NO. 89-0344
Respondent. )
Pursuant to notice, the above-styled matter was heard be fore the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 27, 1989 in St. Petersburg, Florida. The following appearances were entered:
For Petitioner: Bruce P. Taylor, Esquire
For Respondent: Lawrence D. Black, Esquire
This matter began when the Superintendent of Schools for Pinellas County recommended that Respondent be suspended for three days without pay in November of 1988 for gross insubordination and misconduct in office resulting from Respondent's alleged failure to follow administrative directives and his alleged exercise of poor professional judgement in dealing with students, colleagues and administrators.
A subsequent recommendation by the Superintendent as made in December of 1988 for Respondent's suspension for a period of five days without pay. The second recommendation for suspension cited gross insubordination and misconduct by Respondent as the result of Respondent's alleged grabbing, pushing and shoving of students in a punitive manner contrary to directions of school administrators in 1986 and 1988 that Respondent refrain from such conduct.
Respondent requested a formal administrative hearing with regard to both suspensions. Both cases were consolidated for purposes of final hearing and this proceeding ensued. At hearing Petitioner presented the testimony of 15 witnesses and 18 evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, and no evidentiary exhibits. Proposed findings of
fact submitted by Petitioner are addressed in the appendix to this recommended order. Respondent's proposed findings consisted of legal argument and are not addressed in the appendix.
Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:
Respondent is Clarence Davis, holder of teaching certificate number 137897 issued by the State of Florida. Respondent is currently employed by Petitioner as a teacher pursuant to a continuing contract which has been in effect since April 21, 1971. Respondent is presently a teacher at Azalea Middle School.
In September of 1988 or early October 1988, a 12 year old female student, J.B., in Respondent's gym class complained to Respondent that another student was hitting her. Respondent refused to take any action. From his view of the class seating arrangement on the gym bleachers, Respondent felt there was no way that the student accused could have hit the complainant. Respondent told
J.B. to stop crying like a baby. Respondent had been previously requested to use extra sensitivity in dealing with J.B. because she was a recent victim of a violent sex crime. J.B., through her parents, subsequently requested and received a transfer from Respondent's class by the school principal.
At the beginning of the 1988-89 school term, D.W. was a student in Respondent's gym class. D.W. testified that Respondent yelled at him in a rude manner and propelled him into a fence on an out door court yard who he hit a volley ball incorrectly. D.W.'s testimony in this regard is not credited because his version of events was not corroborated by other testimony and is in conflict with testimony of Respondent that the incident did not occur and that D.W.'s class did not participate in any out door volley ball activity. D.W. admitted he "mouthed off" to Respondent on several occasions. When Respondent would give D.W. a directive, D.W.'s response was "no". Such an admission is inconsistent with D.W.'s testimony that he was afraid of Respondent; therefore that portion of D.W.'s testimony also is not credited. The principal of the school transferred D.W. from Respondent's class at the request of D.W.'s parents and because D.W. did not have respect for Respondent.
Due to his absence on the day that volley ball teams were chosen, V.C. was not assigned to a team when he returned to Respondent's gym class on or about October 19, 1988. V.C. was not supposed to be seated in the gym bleachers with other students who were excused from "dressing out." Respondent yelled at
V.C. and told him to get out of the class. V.C. complied and went to the school administrator's office. V.C. was not given a pass or a referral by Respondent in accordance with school policy requirements. V.C. was frightened by Respondent's action. A subsequent parental request to transfer V.C. from Respondent's class was granted by the school principal.
On October 20, 1988, Respondent went to the classroom of a fellow teacher, Ms. Moore, and gestured through the glass portion of the door for her to come out and speak with him. She started her class to work on an assignment and stepped out the door to speak with Respondent. The conversation lasted four to five minutes and dealt primarily with Respondent's concern that he was being harassed by school administrative officials. Petitioner's policy no. 6Gx52-2.08 directs that class interruptions must be made at such times as will not interrupt classroom instruction.
Just prior to the conversation with Ms. Moore, Respondent had spoken with the school principal in the principal's office. At the meeting with the principal, the principal deliberately left his door ajar for Respondent, not wanting to have a closed door meeting with Respondent. Respondent came into the principal's office and shut the door. Respondent was told by the principal that
D.W. would be transferred to another class. Respondent argued with the principal, shook his finger in the principal's face and said "I won't be treated like a child." When the principal reached for the door handle, Respondent held the door shut and continued speaking in a voice loud enough for administrative personnel seated at desks approximately 15 feet outside the door to become concerned. The principal did not ask Respondent to open the door or to remove his hand from the door. Respondent then left the office, walked a short distance toward the exit to the administrative office section, and came back to the door of the principal's office where he again shouted that he wasn't being treated fairly, or words of similar import. Respondent then left the area.
Another 13 year old male student, P.L., was transferred from Respondent's class at the request of his mother after the first grading period of the 1988-89 school year. P.L. received an "F" from Respondent for the first grading period because P.L. refused to dress out for physical education class.
P.L. also witnessed Respondent yell and scream at other students. P.L. did not recall specific incidents and his testimony cannot be credited as corroborative of any particular incident alleged against Respondent.
On or about October 28, 1988, Respondent grabbed D.B., a 14 year old seventh grade student, who was in the process of fighting with another student. As established by Respondent's testimony, D.B. is a "street smart" kid adept at fighting who poses a danger to other students in such a situation. As a result, Respondent held D.B.'s arm and carried him back to his office from the floor of the gym. D.B. is still in Respondent's class. Testimony of D.B. that Respondent intentionally twisted D.B.'s arm is not credited due to the demeanor of the witness while testifying; the lack of corroborative testimony of Respondent's arm twisting conduct by other witnesses; the testimony of another student, L.H., that he observed the incident and did not see D.B.'s arm twisted; and Respondent's denial of such action.
On or about September 5, 1986, the principal of the school where Respondent was then employed, counselled Respondent concerning his aggressive touching of students. Respondent was reprimanded in a memorandum from the principal of Azalea Middle School dated April 18, 1989, for unprofessional conduct.
The Superintendent of Schools for Pinellas County reprimanded Respondent by letter dated June 1, 1988, for failure to meet professional standards relating to personal conduct. Respondent was warned that failure to follow administrative directives and treat colleagues and staff in an appropriate and acceptable manner in the future would result in a recommendation to Petitioner that Respondent be disciplined through suspension or termination of employment.
The Director of Personnel Services for Petitioner was presented at final hearing as an expert in education practices and administration. Based upon his review of Respondent's previous disciplinary record, he opined that disciplinary action was appropriate. While he had met with Respondent to advise him of the disciplinary matters pending against Respondent, the director admitted that he did not discuss with Respondent the alleged incidents involving
students J.B., V.C., D.W., and P.L.; therefore he did not have the benefit of information from Respondent in formulating an opinion regarding the appropriateness of the discipline proposed in this case.
The school principal never consulted Respondent with regard to learning Respondent's version of the incidents involving students J.B. or D.W. The principal heard Respondent's version during the October 20, 1988, meeting with Respondent in the principal's office. Notably, the principal did meet with D.W., his parents and another instructor in a different class to resolve behavioral problems in that class.
As stipulated by the parties, Petitioner bases Respondent's suspension for three days without pay upon Respondent's alleged actions with regard to students J.B., D.W., and V.C.; his confrontation with the school principal on October 20, 1988; his discussion of the matter with fellow teacher, Ms. Moore, on October 20, 1988; and his alleged failure to comply with previous directives to correct deficiencies in his professional behavior as set forth in previous reprimands.
Petitioner's second suspension of Respondent without pay for a period of five days is based upon allegations that Respondent engaged in actions after November 8, 1988, and prior to December 14, 1988, consisting of pushing and shoving students in a punitive manner; that such alleged misconduct by Respondent occurred while the previous suspension action of November 8, 1988, was still pending; and that Respondent had been previously warned in reprimands issued to him in 1986 and 1988 to refrain from such conduct. The basis of the allegation regarding Respondent's pushing and shoving of students, relied upon by Petitioner to support the second suspension, consists of the incident involving student D.B. A second incident involving student M.S., a female in the sixth grade physical education class of Respondent, occurred after the December 14, 1988 date of the charging instrument for the second suspension and is not credited with regard to present charges.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes.
Petitioner bears the burden of showing by a preponderance of the evidence that Respondent committed the actions for which he faces suspension without pay from his employment. Section 231.36(4)(c), Florida Statutes, permits discipline of a teacher on continuing contract provided such discipline is imposed as a result of immorality, misconduct, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
Petitioner has charged Respondent with misconduct in office and gross insubordination or willful neglect of duties. Misconduct is defined in Rule 6B- 4.009(3), Florida Administrative Code, as a violation of the Code of Ethics and the Principles of Professional Conduct as adopted, in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individual teacher's effectiveness in the school system.
Petitioner has failed to establish that conduct by Respondent was so serious as to impair his effectiveness in the school system.
Respondent's action in directing student V.C. to leave class without a pass, as well as his confrontation with the school principal regarding the transfer of student D.W., are certainly not actions to be condoned by school administrative officials. However, such one time occurrences do not rise to the level of violation of standards of professional conduct sufficient to warrant suspension from employment.
Allegations that Respondent's conduct with regard to students J.B. and
D.W. constituted violations of professional conduct standards is not proven by the preponderance of the evidence. Respondent's action with regard to student
J.B. was logical. Without evidence that the other student was seated in a position to hit J.B., her complaint was not sufficiently supported for Respondent to take action against the allegedly offending student. As noted, the testimony of D.W. fails to support his version of the altercation with Respondent.
The fact that Respondent held a discussion with fellow teacher, Ms. Moore, on October 20, 1988, for four to five minutes fails to demonstrate that Ms. Moore's class was disrupted. In the absence of a showing that classroom instruction was interrupted, no violation of Petitioner's policy no. 6Gx52-2.08 is established.
With regard to Petitioner's second suspension of Respondent, it is found that Respondent's action with regard to student D.B. was justifiable under the circumstances of a student fight and the need to control D.B. to prevent harm to another.
Petitioner has not met the burden of proving by a preponderance of the evidence those charges, set forth in Petitioner's letter of December 14, 1988, which are alleged in support of the second suspension of Respondent from his employment.
With regard to the first suspension letter dated November 8, 1988, Petitioner has proven by a preponderance of the evidence that Respondent exercised poor professional judgement in discharging V.C. from the classroom in violation of school policy and that Respondent engaged in unprofessional conduct in his confrontation with the school principal. However, gross insubordination is defined in 6B-4.009(4), Florida Administrative Code, as a "constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Petitioner has not presented a preponderance of direct admissible evidence sufficient to show that Respondent's action meets this definition.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in Division of Administrative
Hearings Case No. 88-5720 and Division of Administrative Hearings Case No. 89-
0344 dismissing the proposed suspensions of Respondent from his employment.
DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-5720 AND 89-0344
Accepted. Finding of Fact, paragraph 1.
Accepted. Finding of Fact, paragraph 1.
Accepted. Finding of Fact, paragraph 2.
Accepted in material part in Finding of Fact, paragraph 2.
Accepted in material part in Finding of Fact, paragraph 2.
Accepted in material part in Finding of Fact, paragraph 2.
Accepted. Finding of Fact, paragraph 3.
Accepted in material part in Finding of Fact, paragraph 4.
Accepted. Finding of Fact, paragraph 3.
Accepted in material part in Finding of Fact paragraph 5.
Rejected as contrary to the weight of the evidence.
However, as to material findings see paragraphs 5, 6, and 7.
Accepted. Finding of Fact, paragraph 5.
Accepted in material part in Finding of Fact, paragraph 6.
Accepted in material part in Finding of Fact, paragraph 6.
Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary.
Paragraph 19 is accepted. Finding of Fact paragraph 6.
Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8.
Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car.
Paragraph 22 is accepted. Finding of Fact paragraph 12.
Bruce P. Taylor, Esquire Post Office Box 4688 1960 East Druid Road
Lawrence D. Black, Esquire
