vs.
Case No. 15-6611TTS
Respondent.
Pursuant to notice, a final hearing was conducted on February 25, 2016, before Administrative Law Judge ("ALJ"), Robert L. Kilbride, Division of Administrative Hearings ("DOAH"), via video teleconference, at locations in West Palm Beach and
Tallahassee, Florida.
Law Office of Thomas L. Johnson, P.A.
Whether Petitioner, Palm Beach County School Board ("Petitioner" or "School Board") proved by clear and convincing
evidence that it has just cause to discipline Respondent, Jeffrey Schector, and, if so, what is the appropriate penalty.
On or about November 4, 2015, the School Board voted to approve the superintendent's recommendation that Respondent be terminated from employment following a 15-day unpaid suspension as a teacher. Respondent timely requested a formal administrative hearing to contest Petitioner's disciplinary action.
At the final hearing, Petitioner presented live testimony of Respondent, Sandra Gero (chief, Human Resources), and Cynthia Chiapetta (principal). Petitioner presented the following witness via deposition testimony: A.F. (student), D.O. (student), J.G. (student), and G.P. (student). Respondent testified on his own behalf and did not present any other witnesses. Petitioner's Exhibits numbered 1 through 5, 7, 8, 10,
12, 15, 17 through 21, and 26 through 29 were admitted into evidence. Respondent's Exhibits 2, 3, 4A, 4E, 5A, and 6 through 9 were admitted into evidence.
The Transcript was filed on March 21, 2016, and the parties timely filed their proposed recommended orders ("PROs"). The undersigned has considered the PROs filed by the parties in the preparation of this Recommended Order.
The School Board is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System.
At all times relevant to this case, Respondent was employed as a math teacher at Eagles Landing Middle School in the School District of Palm Beach County, Florida.
A Collective Bargaining Agreement existed, which governed relations between the School Board and certain employees, including Respondent. Resp. Ex. 7. Article II, Section M of the Collective Bargaining Agreement, Discipline of Employees (Progressive Discipline), provided, in relevant part:
Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.
All disciplinary action shall be governed by applicable statutes and provisions of this agreement. Further, an employee shall be provided with a written notice of wrong doing, setting forth the specific charges against that employee prior to taking any action.
* * *
5. Only previous disciplinary actions which are a part of the employee's personnel file
which are a matter of record as provided in paragraph 7 below may be cited.
* * *
7. Except in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows:
Verbal Reprimand With A Written Notation
* * *
Written Reprimand
* * *
Suspension Without Pay
* * *
Dismissal . . . .
Respondent acknowledged receipt of the School Board's Code of Ethics on October 13, 2010. See Pet. Ex. 1.
While teaching at Eagles Landing Middle School, Respondent received a Memorandum of Specific Incident dated January 29, 2013, for a lack of professionalism displayed during interactions with the mathematics team. Pet. Ex. 2.
Written Reprimand on December 2, 2013
Respondent was disciplined and issued a written reprimand on December 2, 2013, for violations of School Board policies regarding Commitment to Student Principles, Code of
Ethics, and state statutes regarding the education professional. He had been found to have engaged in inappropriate horseplay with a student which ended with the student falling to the floor.
Additionally, Respondent tossed a student's crutches from his classroom and referred to the student as a "cripple."
In the reprimand, Respondent was advised to cease and desist from engaging in the same or similar conduct in the future, and, if he did not, he would be subject to further discipline up to and including termination. Pet. Ex. 7.
The evidence during the hearing reflected that Respondent had received several recent performance evaluations during his tenure with the School Board. For the 2013 school year, his performance evaluation was "effective." For an evaluation submitted April 17, 2014, he received "highly effective" marks in instructional practice. For the 2015 school year, he received an annual evaluation of "highly effective" for instructional practice, "effective" for student growth, "highly effective" for deliberate practice, and "highly effective" for evaluation level. Resp. Ex. 4.
Classroom Incident on May 4, 2015
Respondent was teaching math to eighth-grade students in a portable building at Eagles Landing Middle School.
Near the end of the lesson, Respondent became aware that two male students were engaged in horseplay with another student, J.G.1/
One of the two male students grabbed a water bottle from J.G. intent on annoying and/or harassing J.G. This horseplay caused the water bottle top to come off, resulting in water spewing on several of the boys and also dousing several school documents Respondent had on his desk.
Upon seeing the mess that was created, Respondent stood up and screamed "I am fucking tired of this shit and I don't appreciate having my stuff destroyed." The comment was not directed at anyone in particular.
Respondent then took the water bottle, walked to the back door of the classroom, and threw it outside. He then went back to his desk and, as he put it, "was stewing about what had happened."
Sometime later, just before the end of the class period, Respondent noticed that one of the males had dropped his cell phone on the floor by his desk. Respondent walked over, bent down and picked up the phone, and put it in his pocket. Apparently, the student was not aware that Respondent had picked up his phone.
Respondent admitted that he had taken the cell phone for the purpose of teaching the student a lesson and that he
intended to hold on to it until dismissal. As he put it, "it would be nice to watch G.P. [the student who owned the phone] squirm for a little bit."
When the dismissal bell rang, the student started looking frantically for his cell phone. At that point, J.G. went over to G.P. and told him that Respondent had his phone.
This made Respondent angry. He stated that he felt that J.G. "had sabotaged his plans." Respondent raised his voice and began yelling at J.G. claiming that he had "sold him out" and why could he do such "an idiotic thing."
There was conflicting evidence concerning whether or not any profanity was used by Respondent.2/
Respondent then followed J.G. outside the classroom and continued to berate him. Respondent used some other choice words against J.G. including calling him "stupid" and "idiotic."
Respondent admitted that the May 4, 2015, incident was not the first time he used profanity in the classroom and that it was not the first time he ever become angry, or made any harsh comments to a student.
J.G. testified by way of deposition taken on
February 1, 2016. He claimed that when the water bottle incident occurred, Respondent was yelling in general.3/ J.G. testified that the conduct of Respondent shocked him and made him nervous because he had never seen a teacher react like that to anything.
When J.G. told the other student that Respondent had his phone, Respondent started screaming at him and had a "melt down," as he described it.
J.G.'s recollection of the event was fairly detailed and consistent. He said that Respondent called him "stupid," "retarded," and an "idiot." He cursed at J.G. using the F_ _ _ word, the S_ _ _ word, and accused J.G. of being a "F_ _ _ing idiot."
When Respondent cursed at him, it made J.G. feel very shocked and embarrassed, particularly in front of the other students. He acknowledged, however, that this was the first time that Respondent ever got in his face and yelled or cursed at him.
Notably, J.G. admitted that since the May 4, 2015, incident his academic career has been the same and that he is actually doing better this year, than last year.
Also, after the incident on May 4, 2015, J.G. testified that much of the harassment decreased. Apparently, one of the male students involved in the incident received an in-school suspension for the name-calling incident and stayed away from
J.G. The other student, as well, was not making fun of him like he had done previously.
Several students, including the two male students involved, testified by way of their deposition transcripts. Each
recalled the incident on May 4, 2015. The students each had a similar recollection of the basic events.
They confirmed that Respondent got very upset, was screaming, and used some curse words and demeaning language. Several of the students acknowledged, in general, that the incident resulted in the classroom antics and horseplay subsiding. Each provided a written statement which was reviewed by the undersigned.
Following the incident on May 4, 2015, Respondent was removed from the classroom, but was allowed to return to school on May 11, 2015, to begin teaching again. He taught until the end of that school year-–until approximately June 6, 2015.
During the summer of 2015, Respondent received a letter from the principal reappointing him to his teaching position at Eagles Landing Middle School for the 2015-2016 school year.
Approximately 11 days after the new school year began, Respondent was requested to attend a pre-disciplinary hearing relating to the May 4, 2015, incident. After the pre- disciplinary meeting, he was allowed to return to his classroom until October 9, 2015.
In early October 2015, Respondent was directed to attend several Employee Assistance Program meetings. He attended four different sessions through November 4, 2015, when he was terminated.
CONCLUSIONS OF LAW
DOAH has jurisdiction of this matter pursuant to the Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association, as well as sections 120.57(1) and 1012.33(1)(a), Florida Statutes (2015).
The School Board seeks to suspend Respondent for a period of 15 days without pay and to terminate his employment, rather than implement the next step of suspension without pay as set forth in the progressive discipline provision of the Collective Bargaining Agreement between the parties.
To that point, the Collective Bargaining Agreement states that, "except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered."
Generally, the School Board would have the burden of proving its allegation by a preponderance of the evidence. Allen
v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990).
However, pursuant to Article II, Section M of the Collective Bargaining Agreement, the School Board has an enhanced burden of proving its case by clear and convincing evidence. See
Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788–89
(Fla. 5th DCA 1991) (school board may limit or abridge its authority to discipline continuing contract teachers); and Sickon
v. Sch. Bd., 719 So. 2d 360 (Fla. 1st DCA 1998).
Further, if the school board has agreed, through collective bargaining, to a more demanding evidentiary standard, then it is bound in accordance with the applicable contract. See, generally, Chiles v. United Faculty of Fla., 615 So. 2d 671,
672-73 (Fla. 1993); Palm Beach Cnty. Sch. Bd. v. Zedrick Barber, Case No. 15-0047 (Fla. DOAH Aug. 31, 2015; PBCSB Oct. 13, 2015).4/
"Clear and convincing evidence" requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800
(Fla. 4th DCA 1983).
A hearing at DOAH before an ALJ is "de novo" and evidence must be developed and exist in the administrative hearing record to justify the action contemplated by the School Board. See, generally, § 120.57(1)(j) and (k), Fla. Stat. ("All
proceedings conducted under this subsection shall be 'de
novo.'"); and Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778
(Fla. 1st DCA 1981).
Further, a de novo proceeding is intended to formulate final agency action by an agency and is not simply to review action taken earlier or preliminarily. McDonald v. Dep't of
Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977); Beverly Enters.-Fla., Inc. v. Dep't of HRS, 573 So. 2d 19 (Fla. 1st DCA
1990); and Lawnwood Med. Ctr. v. Ag. for Health Care Admin., 678
So. 2d 421 (Fla. 1st DCA 1996).
A formal administrative hearing affords a full opportunity to test the agency's policies. In section 120.57(1) proceedings, the ALJ can "independently serve the public interest by providing a forum to expose, inform and challenge agency policy and discretion." (emphasis added). Gopman v. Dep't of
Educ., 908 So. 2d 1118 (Fla. 1st DCA 2005), citing State ex rel. Dep't of Gen. Servs. v. Willis, 344 So. 2d 580, 591 (Fla. 1st DCA
1977).
As a result, the undersigned concludes that at this juncture of the administrative process, an ALJ making a "de novo" review under section 120.57 is not required to defer to the agency's proposed penalty or discipline--to do so would constitute an abandonment of the ALJ's responsibility and ignores the law obligating the ALJ to undertake an independent review and recommendation.
Based on the evidence presented, the undersigned cannot conclude by clear and convincing evidence that Respondent's conduct clearly constituted a real and immediate danger to the district or that it was so clearly flagrant and purposeful to justify skipping steps of progressive discipline.
More specifically, had Respondent's presence in the classroom "constituted a real and immediate danger to the district," surely the principal would not have returned him to the classroom to complete the 2014-2015 school year. Likewise, the School Board's action in re-appointing him for the next school year (2015-2016) belies any credible argument that he posed a threat to the students or district.
Similarly, based on the evidence credited by the undersigned and considering the context and totality of the circumstances of the May 4, 2015, incident, the undersigned cannot conclude that Respondent's conduct on May 4, 2015, constituted a flagrant and purposeful violation of School Board
rules.
The Merriam Webster dictionary defines flagrant as
"conspicuously offensive" or "so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality."
Respondent's conduct on May 4, 2015, while less than an ideal or mature reaction, was in response to a chronically
disruptive group of male teenage students who were constantly picking on a more sensitive student, J.G. This conduct not only disrupted the teaching environment but adversely affected the learning environment for other students.
Notably, Respondent's actions, by all accounts, resulted in the students beginning to behave in a more respectful manner and the teasing of J.G. significantly subsided.
Under these circumstances, the undersigned does not have a firm conviction or belief, without hesitancy, that the facts warrant skipping a step of progressive discipline.
The outcome of this case hinges primarily on whether the School Board has carried its burden to prove by clear and convincing evidence that it could rely upon an exception, skip progressive discipline, and terminate Respondent.
While the undersigned does not condone Respondent's conduct and believes that Respondent's conduct did occur as alleged and warrants discipline, the undersigned cannot ignore Respondent's right to insist that the discipline in this instance follow the normal steps of progressive discipline and be limited
to a suspension.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board discipline Respondent with an unpaid suspension covering the
period of time Respondent has been suspended from his teaching duties, but immediately reinstate him to his teaching duties. No back pay is recommended. The undersigned also recommends that Respondent be required to attend and successfully complete an anger management class after reinstatement.
DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida.
ROBERT L. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2016.
1/ Respondent had observed these same two male students picking on J.G. on previous occasions in his classroom. Apparently, this type of horseplay and bullying against J.G. by these two male students had been a source of disruption and interference with Respondent's teaching lessons.
2/ Respondent claims that he did not curse or use any profanity at that point, having had some time to reflect on his actions during the water bottle incident.
3/ J.G. did not testify that Respondent cursed during that discourse.
4/ That this is the proper burden of proof for this case does not seem to be a point of dispute.
Law Office of Thomas L. Johnson, P.A.
Jean Marie Middleton, Esquire Palm Beach County School Board Office of General Counsel
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
Dr. Robert Avossa, Superintendent Palm Beach County School Board
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.
