STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANATEE COUNTY SCHOOL BOARD,
Petitioner,
vs.
SHARON L. HARRISON,
Respondent.
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) Case No. 11-6397TTS
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on May 2, 2012, by video teleconference at sites in Tallahassee and Sarasota, Florida, before Thomas P. Crapps, a designated Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Erin G. Jackson, Esquire
Thompson, Sizemore, Gonzalez, and Hearing, P.A.
Post Office Box 639
201 North Franklin Street, Suite 1600 Tampa, Florida 33602
For Respondent: Melissa C. Mihok, Esquire
Kelly and McKee, P.A.
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33605
STATEMENT OF THE ISSUES
Whether Petitioner, Manatee County School Board (School Board), established "“just cause”" in order to take disciplinary action against Respondent, Sharon Harrison (Ms. Harrison); and if so, what is the appropriate penalty.
PRELIMINARY STATEMENT
On November 10, 2011, Timothy McGonegal, Superintendent of the Manatee County School District (Superintendent McGonegal), issued an Administrative Complaint seeking to take disciplinary action against Ms. Harrison. Ms. Harrison is a teacher with the Manatee County School District (School District). Specifically, Superintendent McGonegal recommended that the School Board suspend Ms. Harrison for 10 days without pay, and to return her to an annual contract. As ground for the disciplinary action, Superintendent McGonegal alleged the following:
On or about Tuesday, August 30, 2011, Harrison placed a second grade autistic student from her class outside of the classroom in an exterior hallway because the student would not wait her turn to participate in a class activity.
The door at the back of Harrison's classroom does not have a window or peephole. There is a window just to the right of the back door; however if the student was standing at the door in the exterior hallway, she would not be visible to someone through the window if this person was located near the door.
Based upon statements made by Harrison and Harrison's Teacher aide, Stephanie Stephan ("Stephan"), who was in the classroom for the entirety of this incident, at the time the student was placed in seclusion, the student was not showing any signs of physical aggression nor were any of her classmates.
The student was left outside of the classroom in an exterior hallway for approximately 2-5 minutes. While outside, the student was screaming and crying and banging on the outside of the classroom door. The student's actions could be heard by Halana Hayes, Teacher Aide, in the classroom located next to Harrison's classroom.
Harrison stated that she stood at the back door and held it ajar and could see the student for the entirety of the time she was placed in seclusion. However, the teacher aide in the classroom, Stephan, not only observed Harrison hold the door securely shut, she heard Harrison open and shut the door approximately three (3) times while informing the student that she would not be allowed to enter the classroom until she calmed down and quit crying and screaming.
Based upon pictures taken of the interior of Harrison's classroom, there are no items that would have obstructed Stephan's view of the backdoor during this incident while Stephan stood near the horseshoe shaped table facing the back door.
Based on the foregoing factual allegations, Superintendent McGonegal charged Ms. Harrison with violating Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-4.009(3).
On December 5, 2011, Ms. Harrison filed a timely request seeking an evidentiary hearing. The School Board sent the hearing request to the Division of Administrative Hearings (DOAH) on December 14, 2011.
Initially, Administrative Law Judge John Newton was assigned the case, and he set the case for a final hearing on March 8, 2012. Based on an Unopposed Motion for Continuance, the final hearing was rescheduled for May 2, 2012. On May 1, 2012, the case was transferred to Administrative Law Judge Thomas Crapps.
At the May 2, 2012, hearing the School Board presented the testimony of Stephanie Stephan (Ms. Stephan), Julie Fazio
(Ms. Fazio), Joshua Bennett (Mr. Bennett), Janet Kennedy
(Ms. Kennedy), and Debra Horne (Ms. Horne). The School Board introduced into evidence Exhibits 2 through 8, and 13.
Ms. Harrison testified on her own behalf, and presented the testimony of Julie Danke (Ms. Danke), Rosetta Gordon
(Ms. Gordon), Evelyn Snoeren (Ms. Snoeren), Cynthia Weaver (Ms. Weaver), and Debra Brown (Ms. Brown). Further,
Ms. Harrison introduced into evidence Exhibits 3 and 6, and the deposition of Cheryl Maddox.
A two-volume transcript of the proceedings was filed with DOAH on May 25, 2012, and the parties submitted proposed recommended orders on June 18, 2012.
FINDINGS OF FACT
Ms. Harrison has been a special education teacher in the School District since August 1992. She has a college education in the field of Special Education, and specialized training for teaching children with varying exceptionalities. The term varying exceptionalities means that a class is composed of students of varying disabilities. For example, a class may include students with autism combined with students who have a learning disability, speech delay, or physical impairment. Since 2007, Ms. Harrison has been a teacher for students with varying exceptionalities at Bashaw Elementary School.
On August 15, 2011, Ms. Harrison began preparations for the new school year. Assigned to Ms. Harrison's class was a new teacher's aide, Ms. Stephan. Prior to August 2011, Ms. Stephan had never worked in a varying exceptionalities class.
Ms. Stephan, however, has an interest in helping children with autism, and is currently earning her college degree in psychology with the hope of becoming a special education teacher.
For the 2011-2012 school year, Ms. Harrison's class consisted of 12 students. Most of these students are children that she has taught for the past four years. One new student, however, was A.R.
At the beginning of the 2011-2012 school year, A.R. was an eight-year-old girl with autism and behavioral issues. Based
on her Individual Education Plan (IEP) team's discussion, A.R. was placed in Ms. Harrison's class. Unfortunately, because of her disabilities, it is undisputed that A.R. has difficulty with transitions. Consequently, A.R. could sometimes be non-compliant with directions. Furthermore, when A.R. became frustrated she had been known to become unpredictable, often screaming or yelling, throwing items, overturning desks, and becoming aggressive with other students. Moreover, because of her autism,
A.R. would use verbal phrases inappropriately and out of context, such as "count to six" or "PBS kids."
The testimony showed that A.R. had difficulty transitioning into Ms. Harrison's class. In the short period of time from the start of school on August 22, 2011, until the incident in question of August 30, 2011, Ms. Harrison and
Ms. Stephan tried different methods to help A.R. with the transition. Sometimes, in order to encourage A.R. to be compliant, Ms. Harrison and Ms. Stephan would allow A.R. to draw butterflies, which A.R. enjoyed doing, or go for "happy walks" with Ms. Stephan outside the classroom. During these "happy walks," A.R. would burrow or nuzzle her head into the side of Ms. Stephan for comfort. Ms. Stephan developed an affinity for A.R, and Ms. Stephan would spend approximately 30 percent of the class time helping A.R.
The events that give rise to this hearing occurred on August 30, 2011. The key factual question presented is whether or not Ms. Harrison had constant visual contact with A.R. once Ms. Harrison removed A.R. from the classroom for disruptive behavior. Resolution depends on the credibility of the only two witnesses who were present in the class on August 30, 2011,
Ms. Harrison and Ms. Stephan.
On August 30, 2011, Ms. Harrison was teaching a class about growing a plant from seeds. The students were first required to draw pictures showing the progression of a seed into a plant. After finishing the drawing, the students would then go to the horseshoe-shaped table for a hands-on lesson where the students would plant seeds in a bag. In the hands-on portion, each student would take turns writing his or her name on a clear ziplock bag with a permanent marker, then fill the bag with soil and a seed, and water the seed.
On August 30, 2011, A.R. was having a "bad day," in that she was not compliant with the school work. As the class finished the drawing assignment, the other students joined
Ms. Harrison at the horseshoe-shaped desk for the hands-on portion of the lesson. A.R. continued to work at her desk on the drawing with Ms. Stephan.
When A.R. finished her drawing, she went to the horseshoe table and pushed herself in front of the other
students. A.R. began screaming to get her bag, soil, and seed. Ms. Harrison told A.R. that she would have to wait her turn.
A.R. continued to yell, and Ms. Stephan, in turn, got A.R. a bag, filled it with soil and wrote A.R.'s name on the bag. Initially,
A.R. stopped yelling once she got her bag, until she saw one of the other students writing his or her name on the bag. A.R. began yelling and demanding that she be given the permanent marker. Again, Ms. Harrison told A.R. that she would have to wait her turn for the marker. Undeterred, A.R. began to scream loudly, demanding that she be given the marker. Ms. Harrison asked A.R. to calm down, but A.R.'s behavior continued to escalate. Ms. Harrison noticed that A.R.'s behavior was distracting her other students. Further, based on Ms. Harrison's past experience with teaching many of these same students, she thought that A.R.'s disruptive behavior might result in one of her other students acting out against A.R.
Ms. Harrison determined that she needed to remove A.R. from the area, so she said something to the effect of "that's enough," took A.R. by the hand, and led her to the door on the opposite side of the classroom. Ms. Harrison directed
Ms. Stephan to watch the other students.
As Ms. Harrison walked to the door with A.R., A.R.'s behavior continued to escalate with her crying and screaming that she wanted the marker.
With one hand holding A.R.'s hand, Ms. Harrison opened the classroom door. The door opened into an outside grassy area adjacent to the classroom. This area was described as containing a picnic table and was sometimes used by the class for different science activities. Photographs show that a short distance from this grassy area is a parking lot with a gated entrance, where school buses and vehicles would park. Further, the area is surrounded by a six-foot chain-link fence on the far side of the parking lot. At the time Ms. Harrison escorted A.R. from the class, at approximately 11:20 a.m., the gate was closed. Consequently, there was no danger of A.R. being injured by an incoming bus or vehicle.
As Ms. Harrison opened the door with A.R. in tow, A.R. attempted to burrow or nuzzle her head into Ms. Harrison's side. Ms. Harrison found this behavior unacceptable because it was reinforcing A.R.’s behavior for acting out. Therefore,
Ms. Harrison separated A.R. from her side. A.R. responded by trying to strike Ms. Harrison and continued her screaming tirade.1/ When A.R. attempted to strike Ms. Harrison, Ms.
Harrison, with her hand, swung the door into a position between herself and A.R. Ms. Harrison, however, kept constant visual contact on A.R. with the door ajar. Ms. Harrison told A.R. repeatedly that she would have to calm down before being allowed
back into the classroom. A.R.'s conduct continued to escalate with A.R. screaming, yelling, and hitting the door.
Ms. Harrison did not lose sight of A.R. and was standing in A.R.'s immediate vicinity. Ms. Harrison credibly testified that she was never more that 12 inches from A.R. at the door. Further, Ms. Harrison was in a position to stop A.R. from running away from the immediate area outside of the classroom, had A.R. attempted to run away from the classroom. There was no testimony, however, that A.R. ever attempted to leave the immediate area outside of the door and Ms. Harrison's supervision.
After a time period of approximately two to three minutes, A.R. calmed down sufficiently to return to the classroom with Ms. Harrison. Upon returning to the classroom, Ms. Harrison found that Ms. Stephan had completed the seed planting with the rest of the class. The students went to "Rainbow," which consists of special classes such as physical education, computers, or music. Ms. Harrison asked Ms. Stephan to accompany the class to Rainbow.
Ms. Stephan's testimony and observation that
Ms. Harrison had closed the door on A.R. was not credible, because the record contains facts showing her sight of the door was obscured and that her attention was diverted.
Ms. Stephan's ability to observe A.R. and Ms. Harrison at the outside door was hindered by the fact that in the classroom she was in the opposite corner away from the door. The testimony showed that as Ms. Harrison escorted A.R. from the classroom, Ms. Stephan continued to help the other students in filling the bags with soil, seeds, and watering the seeds. The pictures from the classroom, taken that day, show the water faucet that was used to water the seeds was in the opposite corner of the room away from the door. In order to fill the bags with water, Ms. Stephan would have had to have her back to the door where Ms. Harrison and A.R. were located. The pictures, further, show that between this faucet and the door was an easel with paper on it, student desks, and a cubbie partially blocking the view. In addition to the physical obstacles, Ms. Stephan was helping the remaining 11 students with the seed planting.
Ms. Stephan even testified that one boy complained that she had "drowned his seed" by putting too much water in his bag.
Moreover, when Ms. Harrison returned with A.R., the seed planting lesson had been completed, and it was time for the students to go to Rainbow. Clearly, Ms. Stephan had helped the students finish the seed planting lesson while Ms. Harrison attempted to calm A.R.
Although Ms. Stephan testified that she did not know if she had put water in the boy's bag before or after the incident
with A.R., other facts show that Ms. Stephan filled the bag while the incident with A.R. was ongoing. It was undisputed that at the beginning of the seed planting, Ms. Stephan was helping A.R. with the drawing assignment. Immediately after finishing the drawing assignment, Ms. Stephan helped A.R. by obtaining a bag, writing A.R.'s name, and adding the soil. It is at this point that A.R. became upset when she saw other students using the marker. The testimony showed that Ms. Harrison removed A.R. from the class as A.R.'s behavior escalated, and that Ms. Stephan remained with the students. Similarly, Ms. Harrison testified that upon returning approximately two to three minutes later, the bags had been filled and watered. Consequently, the facts lead to the finding that Ms. Stephan helped finish the teaching lesson by filling the bags with water during the time that
Ms. Harrison was trying to calm A.R. Therefore, Ms. Stephan was not in a position to see clearly the interaction between
Ms. Harrison and A.R. In any event, on the issue of whether or not Ms. Harrison kept visual contact with A.R. in the time that
A.R. was taken out of the classroom, the undersigned found
Ms. Harrison's testimony credible and the basis for the factual finding, and did not find Ms. Stephan's description of the events credible.
As Ms. Stephan walked the class to Rainbow, she saw another teacher's aide. Ms. Stephan informed the teacher's aide
that Ms. Harrison placed A.R. outside the classroom, without supervision, and that A.R. had cried, yelled, and banged her head against the door pleading to be let into the classroom. This initial report eventually led to the School District's investigation, the subsequent temporary removal of Ms. Harrison from the class, and this disciplinary proceeding.
Mr. Bennett, Bashaw Elementary School's Principal, testified he considered the allegation of Ms. Harrison's conduct serious because he believed that Ms. Harrison had placed A.R. in a dangerous situation.2/ Consequently, he had Ms. Harrison's personnel file examined and reported the incident to the School District.
Mr. Bennett and Ms. Horne testified that Ms. Harrison had a prior disciplinary problem, and had entered a Memorandum of Conference, on March 25, 2008, concerning the expectations and directives in regard to students. Specifically, the Memorandum of Conference addressed "the teacher's observed inappropriate handling of students." Yet, the investigative report, introduced into evidence by the School Board, shows that the claim
Ms. Harrison had used excessive force against a student was unfounded. The School Board failed to show that Ms. Harrison had been disciplined for using excessive force. In fact, the only discipline ever given to Ms. Harrison involved a seven-day
suspension, without pay, for reporting to an IEP team meeting unprepared and allowing the student's IEP to lapse.
The record further shows that A.R. was prone to repeating verbal phrases inappropriately and out of context. This characteristic of using verbal phrases in an inappropriate manner is consistent with A.R.'s disability of autism. Consequently, the undersigned found no significance to testimony showing that in the weeks after August 30, 2011, incident, A.R. would state "Ms. Stephan let me in " during school time. As Ms. Harrison credibly testified, A.R. would use the phrase "let me in" sometimes in the context of asking to join a group.
Therefore, the claim that A.R. used the terms "let me in" as a result of being placed outside the classroom on August 30, 2011, is unfounded. Similarly, there was no competent evidence to support the allegation that A.R. attempted to run from classrooms through the backdoor based on the incident of August 30, 2011.
Following the August 30, 2011, incident, Ms. Fazio, the School District's behavioral specialist, viewed A.R. in the classroom. Prior to the August 30, 2011, incident, A.R. did not have a behavioral plan in place. Further, since the August 30, 2011, incident, A.R.'s IEP team recommended that A.R. be moved from Ms. Harrison's class to a lower cognitive functioning class.
A.R. was transferred to the lower cognitive functioning class, which her teacher Ms. Kennedy described as a "better fit" for
A.R.
Finally, the record showed that Ms. Harrison is a
capable and respected varying exceptionalities teacher. Teachers and teacher aides, who testified, described her as firm with the students, well prepared, organized and patient with her students. There is no evidence that she was neglectful, aggressive, or mistreated her students. Furthermore, the testimony showed the lengths that Ms. Harrison would go to in order to keep visual supervision over her students. For example, When walking her students down a hallway, Ms. Harrison would routinely walk backwards, so that she could keep visual supervision on her students at all times. Consequently, there was no credible evidence that Ms. Harrison took any action that was harmful to A.R., her learning, or that impaired Ms. Harrison's effectiveness as a teacher.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to section 120.65(7), Florida Statutes (2010),3/ and pursuant to sections 120.569, 120.57, and 1012.34(3)(d), Florida Statutes (2011).
Superintendent McGonegal has the authority to recommend to the School Board that an employee be suspended without pay and to return to annual contract. § 1012.27(5), Fla. Stat. (2010).
The School Board has the authority to terminate and/or suspend instructional personnel without pay and benefits.
§§ 1012.22(1)(f) & 1012.40(2)(c), Fla. Stat. The standard for discipline of instructional personnel, like Ms. Harrison, is “just cause.” Policy 6.11, Policies and Procedures Manual, School Board of Manatee County. Consequently, the School Board has the burden of proving by a preponderance of the evidence the allegations showing "“just cause”" that are set forth in the Administrative Complaint. See McNeill v. Pinellas Co. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Co., 569 So. 2d 883 (Fla. 3d DCA 1990).
Pursuant to section 1012.33(1)(1), Florida Statutes, “just cause” includes, but is not limited to, the following instances as defined by rule of the State Board of Educators: immorality, misconduct in office, incompetency, gross subordination, willful neglect of duty or conviction of a crime involving moral turpitude."
As an instructional employee of the School District, Ms. Harrison is subject to the School District's Policies and Procedures Manual and section 1012.33, Florida Statutes.
The Administrative Complaint first charges Ms. Harrison with violating rule 6B-1.006(3)(a), which requires an
"individual to 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 here did not support the allegation that Ms. Harrison violated rule 6B-1.006(3)(a).
The record shows that Ms. Harrison had constant visual contact with A.R. when she removed A.R. from the classroom, and that Ms. Harrison was always within close proximity to A.R. Further, the credible facts showed that Ms. Harrison had the ability to keep A.R. from running away from the exterior area where A.R. had been removed too. Finally, the facts did not show that A.R. was in danger from any bus or vehicle, and that the gate allowing vehicles to access the parking lot was closed. Therefore, the facts do not support a finding that Ms. Harrison violated rule 6B-1.006(3)(a).
Next, the Administrative Complaint charges Ms. Harrison with violating rule 6B-1.006(3)(e), which prohibits a teacher from "intentionally expos[ing] a student to unnecessary embarrassment or disparagement."
The facts do not show that Ms. Harrison intentionally embarrassed or disparaged A.R. Rather, the facts clearly showed that Ms. Harrison attempted to calm A.R. by taking her to an area
immediately outside the classroom. Further, the evidence showed that this area had been used for class school work, and the "happy walks" A.R. would have with Ms. Stephan when trying to calm herself. There is no credible evidence that Ms. Harrison acted out against A.R. out of anger, or intentionally sought to embarrass or disparage A.R.
Finally, the Administrative Complaint charges
Ms. Harrison with violating 6B-4.009(3), which provides that it is a violation of the Code of Ethics of the Education Profession to engage in conduct that is "so serious as to impair the individual's effectiveness in the school system."4/
The evidence shows that Ms. Harrison is a well organized, thoughtful special education teacher. Her peers offered credible testimony that Ms. Harrison is an excellent special education teacher. Ms. Snoeren, a speech pathologist with 31 years experience, and who has worked for the School District since 2007, described Ms. Harrison as a wonderful teacher, patient, organized, experienced, and very insightful about her children. One parent volunteer, Ms. Gordon, has worked with Ms. Harrison for four years during the time that Ms. Gordon's son has been a student in Ms. Harrison's class. Ms. Gordon described Ms. Harrison as a very good teacher, patient, never aggressive or neglectful of her students. The
evidence clearly shows that Ms. Harrison is very effective in her position as a varying exceptionalities teacher.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order dismissing the Administrative Complaint against Ms. Harrison, as not supported by the facts.
DONE AND ENTERED this 28th day of June, 2012, in Tallahassee, Leon County, Florida.
S
THOMAS P. CRAPPS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2012.
ENDNOTES
1/ The undersigned recognizes that the record shows that
Ms. Harrison did not tell Ms. Horne in the initial investigation that A.R. attempted to strike her. Ms. Harrison's explanation for why she did not tell Ms. Horne about A.R. attempting to strike her was that because A.R. did not touch her, she did not think the information was pertinent. Ms. Harrison's description of A.R. attempting to strike her is credible based on the undisputed facts showing A.R.'s escalating behavior of screaming, lashing out, and hitting the door. While
Ms. Harrison should have been more forthcoming with Ms. Horner,
the undersigned did not find that Ms. Harrison's omission of the fact diminished her credibility.
2/ The testimony indicates that A.R.'s parents have never been informed about the incident. Principal Bennett stated that he did not inform the parents because he did not want to interfere with the School District's investigation. Ms. Harrison testified that she believed that no one had ever informed A.R.'s parents.
One would hope that if an administrator believed that a student had been put in a dangerous situation, the student's parents would be fully informed.
3/ References to Florida Statutes shall be the 2010 version of the Statutes unless otherwise referenced.
4/ The School Board argues that Ms. Harrison's effectiveness is impaired because A.R. did not return to school the next day following the incident, and that A.R. would repeatedly state "Let me come in, Ms. Stephan," and had the tendency to run out of the classroom through the backdoor whenever frustrated.
The credible evidence does not support the School Board's argument. While it is true that A.R. did not return to school the next day, there was no testimony showing that her absence was tied to the incident of August 30, 2011. In fact, the only testimony showing a potential reason for the absence was
Ms. Harrison's explanation that A.R. had missed school because of severe allegories. Similarly, there was no evidence showing that A.R.'s verbal phrasing or trying to leave a classroom through the backdoor are tied to the August 30, 2011, incident.
COPIES FURNISHED:
Melissa C. Mihok, Esquire Kelly and McKee, P.A.
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
Thomas Martin Gonzalez, Esquire Thompson, Sizemore, Gonzalez
and Hearing, P.A. Suite 1600
201 North Franklin Street Tampa, Florida 33602
Tim McGonegal, ED.D., Superintendent Manatee County School Board
215 Manatee Avenue, West Bradenton, Florida 34205-9069
Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Gerard Robinson, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 07, 2012 | Agency Final Order | |
| Jun. 28, 2012 | Recommended Order | School Board failded to show "just cause" to discipline Respondent's employment. |
