STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 16-1176TTS
DEBRA TURNBULL,
Respondent.
/
RECOMMENDED ORDER
This case was heard by Administrative Law Judge Robert L. Kilbride of the Division of Administrative Hearings, on November 8 through 10, 2016, in Loxahatchee, Florida.
APPEARANCES
For Petitioner: Jean Marie Middleton, Esquire
Palm Beach County School Board Office of General Counsel
3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239
West Palm Beach, Florida 33416-9239
For Respondent: Mark S. Wilensky, Esquire
Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 STATEMENT OF THE ISSUES
Whether it was proven by clear and convincing evidence that Respondent committed the offense(s) charged in Petitioner's Petition; and, if so, what discipline is appropriate.
PRELIMINARY STATEMENT
By letter dated January 6, 2016, Respondent, Debra Turnbull ("Respondent" or "Turnbull"), was notified that the Superintendent had determined that there was just cause, which could be substantiated by clear and convincing evidence, to warrant a five-day suspension from her employment without pay and that he intended to recommend that action to Petitioner, Palm Beach County School Board ("Petitioner" or "School Board"). Pet. Ex. 2.
Respondent timely requested a hearing pursuant to sections
120.569 and 120.57(1), Florida Statutes, and the matter was referred to the Division of Administrative Hearings.
A formal evidentiary hearing was conducted on November 8 through 10, 2016. At the hearing, Petitioner called the following witnesses to testify: Dianna Weinbaum, Z.N. (minor student), J.N. (mother of Z.N.), R.N. (father of Z.N.), A.C. (minor student), G.C. (father of A.C.), Marisa Madzi, Sherrie Dulany, Jacquelyn Smith, Rosa Cabrera, Alyssa Liberati, Tara Levine, Janet Vino, Patricia Lucas, Debra Turnbull, and Susan Groth.
Petitioner offered the following exhibits which were admitted in evidence: Exhibits 1 through 11, 12 (Bates-stamped
page 88 only), 13 through 21, 27 (Bates-stamped page 123 only),
31 (Bates-stamped page 129 only), 32, 35 through 38, 40 through 45, 47, 49, and 50.
Respondent testified on her own behalf and called the following witnesses: E.D. (a student), Janine Brockelbank, Lisa Caprio, Jennifer Eddy, Catherine Burda, Karen Lundgren, Cheryl Barry, and Smyrna Daumec. Respondent's Exhibits 1 through 3, 7, 8, 10 through 12, 15, 16, 24, and 40 were admitted into evidence.
The Transcript was filed with the Division of Administrative Hearings on January 6, 2017. After an extension was granted, both parties timely submitted proposed recommended orders which were considered by the undersigned in preparation of this Recommended Order.
References to the Florida Statutes are to the versions in effect at the time of the incident(s), unless otherwise stated.
FINDINGS OF FACT
The undersigned makes the following findings of relevant and material facts:
Stipulated Facts
During the 2014-15 school year, Respondent was employed as a teacher at Frontier Elementary School ("Frontier").
Respondent is an experienced teacher.
Facts Established at the Hearing
Petitioner is the duly-constituted school board of Palm Beach County, Florida. It is charged with the duty to provide a
public education to the students of Palm Beach County and to establish policies and programs consistent with state law and rules that are necessary for the efficient operation and general improvement of the Palm Beach County district school system.
Respondent was employed by Petitioner as a teacher in the Palm Beach County district school system for 16 years and has been teaching since 1996. At all relevant times, Respondent was employed at Frontier in Palm Beach County, Florida.
Respondent previously taught second grade, third grade, and fifth grade in self-contained class settings. During the events relevant to this action, she was an English Language Learners (ELL) resource teacher to children in grades first through fifth. Her performance evaluations had been positive up until the events which are involved in this matter.
The employment relationship between Petitioner and Respondent is subject to the terms and conditions of a collective bargaining agreement between Petitioner and the Classroom Teachers Association of Palm Beach County ("CTA").
Petitioner has alleged in its Petition that Respondent is guilty of the following violations of statute, School Board policies, or administrative rules:
School Board Policies 0.01(2)(c) and (2)(d) Commitment to the Student, Principle I;
School Board Policy 3.02(4)(a), (4)(d), (4)(e), (4)(f), (4)(h), and (4)(j), Code of Ethics;
School Board Policy 5.002, Anti-Bullying and Harassment, Expectations;
School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff, School Board Policies;
School Board Policy 3.27, Criteria for Suspension & Dismissal and Code of Ethics of the Education Profession in Florida;
Article II, Section M of the CTA Collective Bargaining Agreement;
Rule 6A-5.056, F.A.C., (2) Misconduct in Office;
H. Rule 6A-5.056(4), F.A.C., of [sic]
Ethics of the Education Profession in Florida;
I. Rules 6A-10.081(3)(a) and (3)(e),
F.A.C., Principles of Professional Conduct for the Education Profession in Florida.
The facts underlying these alleged violations are outlined in paragraphs 8 through 12 of the Petition filed by the School Board dated March 2, 2016. See DOAH docket entry and
Petition filed on March 2, 2016. Incident Involving Z.N.
Z.N., a student of Respondent, was called by the School Board. On direct examination, he was unable to remember how he was treated by Turnbull when she was his teacher.
Other than acknowledging that he remembered being pulled out of Petitioner's class, Z.N. articulated no credible, clear, or convincing testimony supporting any of the allegations lodged against Respondent regarding her interaction(s) with him.
Z.N.'s mother, J.N., testified that Turnbull was her son's teacher when he previously attended H.L. Johnson Elementary School ("H.L. Johnson"). Z.N. would come home every day crying and seemed miserable in Respondent's class.
These observations occurred when he was Respondent's student at that elementary school. He was moved to her class at Frontier on September 22, 2013.
There were times when he attended her class at H.L. Johnson that he would come home from school and would be visibly shaking. He would throw up the night before school, and she would have to physically put him in the classroom while he would beg and scream not to stay.
Prior to and after leaving her class, Z.N. did not exhibit those behaviors. She wrote a letter complaining to the principal about Respondent.
His mother also testified that Z.N. has been diagnosed as having attention-deficit/hyperactivity disorder ("ADHD"). The mother observed that on days where he had to attend school with Respondent at H.L. Johnson, she noticed a big difference in his
sleeping and his eating. His demeanor would change, and he became withdrawn.
The mother of Z.N. did not personally observe any interaction between her son and Respondent in the classroom.
The father of Z.N. testified as well. He recounted that his son did not want to attend school while he was previously in Respondent's class at H.L. Johnson. He would become upset, emotional, and withdrawn. His son "threw fits," broke down, and cried when he had to go to school.
To investigate his son's disconcerting response, the father personally "observed" the class three times, from outside the door.1/
During one visit, he observed the class being somewhat reckless, and Respondent was trying to get her class under control. He heard Turnbull slam a book on the desk to get the attention of the class. He heard Petitioner use the "F bomb" on one occasion.2/
When Z.N. transferred out of Turnbull's class, he started doing very well, began to succeed, and started to come out of his shell. He began going to school with less of a problem.
Like the mother, Z.N.'s father did not personally observe or witness any interaction between his son and Respondent.
E.D. was a student in the same class with Z.N. and Respondent at H.L. Johnson. She testified that she found Respondent to be a great teacher, and she learned things in the class with her.
She felt that Turnbull was very nice to other students and her. She never saw Turnbull pick on Z.N., or treat him in a way that she felt was unfair.
On the other hand, E.D. testified that Z.N. was loud and disruptive in class. Z.N. caused problems in the class which prevented the class from moving forward.
E.D. did not recall hearing Respondent yell at any students, other than perhaps once when the class was loud. She never saw or heard Z.N. cry in class. The testimony of E.D. was credible and gained from personal knowledge and actual observation of teacher/student interactions in the classroom.
Turnbull testified about her involvement with Z.N. At some point in time, Z.N. eventually became her class student. He was bright, although he had a diagnosis of ADHD and had been prescribed medication, which he "took infrequently, at best."
He acted out and was disruptive in class virtually every day. He was disruptive in different ways, sometimes calling out and sometimes making funny noises with his mouth. At times, he would bother the other children.
The behavior of Z.N., combined with that of other students, was difficult and disruptive, preventing her class from moving along according to the curriculum. As a result, the class was falling behind the other classes academically.
Respondent did yell at Z.N. but not as a first resort.
She would first talk to him and ask him to stop. She tried different techniques with Z.N., but admitted that there could have been times when her voice got louder when she had to repeat the same thing to Z.N. six or seven times within a short time period. She has a loud voice, which some students can interpret as yelling, but that was not her intent.
Until the time Z.N. left her classroom, she felt that the parents were supportive. The mother sent her emails thanking her partially for what she was doing for her son, including an email thanking her for easing his transition into her class.
She felt compassion for Z.N. and believed that he could not control what he was doing, particularly when he was not regularly taking his prescribed medication.
The more persuasive evidence is that Z.N. presented teaching problems and challenges to Respondent. He disliked going to school after he was assigned to Respondent's classroom, but the undersigned is not convinced that his reaction to school was based on any traumatic treatment by Respondent. Z.N. himself
offered absolutely no evidence regarding any wrongdoing by Respondent.
Based on this record, there was simply a lack of clear and convincing evidence to support the allegation(s) that Respondent violated any statute, policy, or rule regarding her interaction with Z.N.
Incident Involving Student A.C.
A.C. was called by the School Board. He was Turnbull's fifth-grade student at Frontier. A.C. is now 13 years old and in seventh grade. On direct examination, he testified that he liked having Respondent as his teacher.
He also recounted that there was not a time he did not want her to be his teacher or a time he did not want to be taught by her.
Inconsistently, however, he also testified that he talked to his parents about getting him out of Respondent's class because she was rude and he did not want to be in her class.
After he was no longer in her class group, there came a time when Respondent wanted A.C. to return to her group. A.C. testified that Turnbull came to get him and took him outside to talk.
She stood close to him outside in a hallway alcove. He said that he was scared and nervous because he did not like the idea of a teacher talking to him. However, Respondent did
nothing else to make him feel uncomfortable while they were standing in the hall. Respondent was merely talking to him.
A.C. testified that when he spoke with Respondent in the hallway, she told him how much she liked him. She was not yelling or rude to him.
This same hallway discussion between Turnbull and A.C. was apparently observed by Jacquelyn Marie Smith, a ten-year teacher at Frontier. She testified that one day as she was walking down the hallway with a few students, she observed Respondent and A.C. in the alcove of a doorway outside a classroom, standing about eight inches apart. It appeared to her that Respondent was speaking to A.C. and reprimanding him for something. She observed the look on A.C.'s face and could tell that he was very uncomfortable.
However, she did not hear anything said by either Respondent or the student. She assumed the student was being disciplined based on his body stance and facial expressions. She did not observe Respondent place her hands on A.C. in the hallway.
She testified that she observed the situation for "maybe 10 seconds."3/
There was nothing about Respondent's demeanor, posture, or anything else that led her to believe that Respondent was
angry or upset. She never observed A.C. crying during her brief observation of this hallway encounter.
Another teacher, Rosa Cabrera, testified that as she was passing by, she also saw Respondent in the hallway with her finger pointed at "J," a second-grader. Respondent was crouched down in the student's face saying things which Cabrera could not hear.
She had no idea what Respondent was saying to the child. She did not hear anything, although she passed very close to Respondent and the student. The two were talking in a tone lower than a typical conversational tone.
Like Smith, Cabrera found the fact that Respondent was standing so close to the student to be improper.4/
Respondent testified that A.C. was removed from her group for a period of time. She understood that he had gone home one day and expressed to his father that he was upset because he felt that she did not like him or that she had been mean to him and he did not want to go back to her class.
When he was removed from her teaching group, Turnbull became concerned about A.C. not being provided the teaching instructions he needed. It was unrebutted that she exchanged emails with the assistant principal expressing her concern for him and her desire to work with A.C. again.
As a result of her request, she was directed by the assistant principal to work with A.C. again. Respondent decided to speak to A.C. first to be sure that he was comfortable with
her.
She asked A.C. to come out of his class into the
hallway, and they spoke in the hallway alcove. The alcove was the width of the door and perhaps an additional six inches on either side. She did this so that their conversation would not be overheard by classmates, would not embarrass him, and to ensure that A.C.'s privacy would be protected.
She stood close to A.C. because there was little room in the alcove and she could hear his voice. She wanted to speak quietly and gently to him so that she would be more reassuring to him.5/
Respondent told A.C. that she understood that he felt that she was angry at him for some reason. She told him that she wanted to reassure him that she was not angry with him. Respondent told A.C. that there had been some misunderstanding between them and she would like to try to clear it up.
She asked him how he felt about coming back into her class group, and told him that they missed him because he was a great addition to it.
By the time the conversation was over, A.C. was smiling. They shook hands and said that they would see each
other in group later that day. A.C. came to her group later that day and had an excellent session, smiling more than he had before. At no time in her conversation with him was there any scolding, anger, or cross words used.
The evidence from the student, A.C., did not support a finding of any violations by clear and convincing evidence. What he did recall, and testify to, did not amount to infractions by Respondent. Likewise, the fellow teachers' unfavorable conclusions about what they observed in the hallway alcove were based on brief observations and did not constitute clear or convincing evidence of any violations.
Incident Regarding Marisa Madzi
Respondent "pushed in" to the classroom of Marisa Madzi, a third-grade teacher at Frontier.6/
Madzi alleged that Respondent "corrected her" in front of the class, although Madzi could not recall specifically what the correction was about. She recalled that Respondent "chimed in," telling her that she was wrong about a point or topic she had been explaining to her class.
Madzi felt that Respondent acted in an unprofessional manner and that if she had an issue, she thought she should have addressed it afterwards and not in front of the class. However, Respondent's statement in front of the class did not cause her to stop her teaching.
Respondent previously complained to Madzi that Madzi was loud in the classroom when she taught and that it was interrupting Respondent while she was working with her small group.7/
Respondent explained the incident in a different way.
She was working with her students when one of them shared with her his response to Madzi's explanation of the answer. The student explained to Turnbull that he did not understand why his answer was wrong. She looked at the question and could see where his confusion came from.
Either Madzi walked over to her to determine what she was talking to the student about or Respondent gestured for her to come over. She told Madzi that "I explained it to him, but you may want to go further into explaining to him why that's the right answer."
Madzi had a reaction to being called over by Turnbull and said, "Okay, I will take care of it." Madzi had a funny look on her face that made Respondent uncomfortable.
Thinking that Madzi may have been upset by their interaction in class, Respondent sent her an email (Resp.
Ex. 40), saying that she did not intend to step on Madzi's toes. The purpose of the email was to apologize for giving Madzi the impression that she was correcting her.
Turnbull testified that during the entire time that Respondent worked at Frontier, Madzi never spoke to her to suggest that there was anything about her, her teaching style, or her dealings with her students that she was uncomfortable with.
The undersigned finds that there was not clear or convincing evidence to conclude that the incident in Madzi's class constituted a violation of any statute, policy, or rule. Incident Involving Rose Cabrera
Rose Cabrera has been a teacher at Frontier for
12 years. She was driving home from campus one day and felt that Respondent was driving behind her in an aggressive manner.8/
The next day Cabrera approached Respondent on campus and said that she was the one that Respondent was tailgating and yelling at. She claimed that Respondent immediately got upset and started yelling at her and telling her that she was unprofessional. Cabrera then walked away.
The next work day, Respondent stopped Cabrera in the hallway and asked to talk. Cabrera claimed that Respondent told her that "there were two possible reasons why people tailgate; either they are crazy or they have a problem, like something's going on."
Cabrera testified that she walked away; but, that Respondent continued to yell at her, saying that she was unprofessional and pointing her finger at her. No students or
other employees were present at either of these encounters between Respondent and Cabrera, and none were called to testify about them.
Turnbull testified that she recalled the incident. She was running late for an appointment and was driving in a rush. She did not recognize the person driving the car in front of her.
The next day, as she left the mail room, a person whom she did not recognize was blocking her way. The woman began to berate her, stating that Respondent had been tailgating her, that she was crazy on the road, that the woman had recently had an accident and was very nervous on the road, and that Respondent should not have been doing what she did.
Respondent "could not get a word in edgewise." Neither woman was shouting.
Shortly thereafter, Respondent saw Cabrera in the hallway and asked to speak with her. She tried to explain to her that she was sorry if she had upset her on the road. The two were talking over each other, but Respondent tried to explain that if somebody is behind her or beeping or waving or tailgating, she usually just gets out of their way, as obviously they are in a hurry for some reason.
Cabrera said that she did not want to talk to Respondent. She had upset her the other day and was upsetting her again, so she walked away. As Cabrera was walking away,
Respondent told her she was being unprofessional because she was not allowing Respondent to reply to the accusation. They never spoke of the matter again.
The off campus incident on the road and the follow-up discussions on campus do not support a violation of any statute, rule, or policy by clear and convincing evidence. There was no credible evidence presented to suggest that any students or other staff members were affected, and the dispute was in the nature of a personal disagreement between Turnbull and Cabrera. This conduct and personal encounter, while regrettable, did not rise to the level of a violation of a statute, policy, or rule by Respondent.
Incident in Alyssia Liberati's classroom.
Alyssia Liberati worked as a teacher at Frontier for approximately 15 years. Respondent was teaching two students at the back table in her classroom, while Liberati was teaching the main class a social studies lesson.
Liberati asked her students a question and, when some raised their hands, Respondent inexplicably raised her hand as well. The students thought that was funny. Liberati did not find Respondent's action to be appropriate because she was asking the children the question, not Respondent.
Liberati could not remember whether Respondent was working with her students on a separate matter or whether they
were included as part of the social studies lesson. Respondent claims they were coordinating their work, and one of her students wanted to participate in Liberati's question.
Turnbull further testified that when the class was asked this question by Liberati, one of Respondent's own students had the correct answer.
She encouraged the student to raise his hand and answer Liberati's question. When he just smiled, she offered to raise her hand for him, and he agreed.
When she raised her hand, Liberati called on her. When the student would not answer, despite her encouragement, Respondent announced the student's answer and attributed it to
him.
Liberati said nothing to her then or after class and
did not chastise her in any way, then or later. Respondent testified that part of her job was to help the English for Speaker of Other Languages (ESOL) students acquire oral language and the ability to socially interact and participate. She wanted to show the student that he should not be afraid of participating.
Liberati continued on with her class and never suggested to Respondent that by raising her hand and offering her student's answer, she had disturbed her class.
Empty Classroom Incident with Alyssia Liberati
On another occasion, Respondent went to Liberati's classroom to "push in" and found the classroom dark and empty. Respondent waited for approximately ten minutes, thinking that the students may have been out of the room for some reason and would be late getting back.
When the class never appeared, Respondent left. She wrote an email to Liberati, asking that she be notified in the future if the class and teacher were not going to be in the room at her designated arrival time.9/ Pet. Ex. 12.
Liberati testified that she received an email from Respondent that night, which she characterized as requesting that she let Respondent know next time in advance if she was not going to be in the classroom because her time is valuable, that she does not have much time to go from one classroom to the next, and that she had wasted her time trying to find out where her students were.
She responded to the email late that night, explaining about her daughter. She found Respondent's email to be offensive and inappropriate.
The next morning, Respondent read the late night email from Liberati and, for the first time, found out about Liberati's daughter's situation.
She responded immediately to Liberati and explained that at the time that she wrote her email, she had not known that Liberati's absence had been due to a family emergency. She also inquired about the well-being of her daughter. Pet. Ex. 12. Respondent further wrote, "No offense was intended," and "[S]o I hope none was taken."
She followed up by going to Liberati's room in the morning to ask her if she had seen her email from that morning. Liberati replied that she had not yet seen it.
Respondent explained to her that had she known that Liberati's daughter was ill, she would have never sent the email. Respondent told Liberati that her daughter takes priority and that she inquired as to how her daughter was doing.
Liberati testified that she was offended by the email and that Respondent did not have to send it. She felt that Respondent could have asked another teacher where her students were.
Respondent tried to explain to her that she had been instructed not to knock on other teachers' doors for any reason, so she did not-–as she did not want to disturb other classes. Nonetheless, Liberati was very angry with her.
During Respondent's follow-up about the second email the next morning, Liberati felt that Respondent was in her personal space and she felt uncomfortable. She noted that
Respondent's tone was very rude and confrontational and felt Respondent should not be speaking to her like that in front of the children in the hall. However, Liberati acknowledged that Respondent expressed to her in one form or another that no offense was intended.
Liberati's coworker, Tara Levine, saw Respondent come down the hallway the next morning in what she described as a fairly aggressive manner, at a fast pace and with an annoyed look on her face.
Levine observed a conversation between Liberati and Respondent which she felt was "a little heated." However, Levine admitted that she could not remember the conversation or its tone. She felt it was necessary to remove students from the area, which was in the hallway just before school started.
Levine testified that Respondent's finger was in Liberati's face, although she observed that Liberati is much taller than Respondent, who was standing very close to Liberati. Levine never reported the incident to any administrator.
Based on an objective view of the facts involving Liberati's classroom hand-raising incident and their exchange of comments regarding the empty classroom incident, there is no clear and convincing evidence that these events constituted a violation of any statute or rule. Respondent was attempting to coach her student to raise his hand when he had the right answer,
and then modeled the hand-raising for him. Rather than doing something improper, Respondent was serving her student in a manner that caused no problem to Liberati. While Liberati may have been taken back by this technique, it did not constitute a violation of any rule or policy.
Likewise, there was nothing improper about the email written by Respondent, who did not know about the ill child. When she found out, she responded appropriately and with due concern for the child, explaining that she did not know of the circumstances.
Although the undersigned credits the observation by Levine, the hallway confrontation between Liberati and Respondent does not rise to the level of clear and convincing evidence to support a violation of statute, policy, or rule.
Incidents Involving J.B.
Respondent taught in a class of students with Janet Vino, a teacher at Frontier. Vino testified that Respondent was very aggressive toward her student, J.B. Respondent would get "in his face," speaking loudly enough for the rest of the class to hear.
While Vino conceded that there was nothing inappropriate about reprimanding a student who is having behavior issues, Respondent did so in a way that Vino could hear Respondent as she was teaching her lesson off to the side.
Vino described Respondent's demeanor with J.B. as very loud, with her being very close to him and with her fingers pointing in his face. Vino said that Respondent on occasion would ask her in class whether she had issues with him too.
On occasion, J.B. would hide in the bathroom to avoid going with Respondent. When he would come out to go with her, he would be sulking. J.B. was in the midst of a number of family and legal-related problems, and he also had discipline issues.
Vino acknowledged that she was never trained to avoid pointing your finger and shaking it at a student or not to "get too close to a student."
Respondent conceded that she had problems with J.B.
He would not do his work and was disruptive. J.B. would do disruptive things, like crawl under the work table and lift it up with his shoulders, while she was working with the other students.
J.B. spoke to her disrespectfully at times and would hold up the class by taking his time getting started and by not being ready when she would arrive to pick him up. Sometimes he would go in the bathroom and would not come out.
The effect of J.B.'s behavior on her teaching was to limit the time that she had available to teach him and other students in his group. It often took ten minutes to get J.B. to the room and seated at the table, before they could even get
started. His behavior interrupted the lessons that Respondent was trying to teach and interrupted the learning of the other students.
Respondent sought help with J.B. from his teacher, Vino, and Assistant Principal Witt. Respondent sought help from Vino one time in her classroom, calling her to ask if she could come over and help with J.B. because he was refusing to work and instead was writing on the worktable with a crayon.
Vino never complained to Respondent about her request for help but seemed unwilling to help her with J.B. As a result, Respondent did not seek her assistance again.
Turnbull sent emails to the principal and the assistant principal concerning J.B. and his problems at school. Respondent felt that J.B. was a special child who came from a difficult situation and that people at the school should be working to help him. She wanted to keep the administration informed regarding her dealings with him and how he was doing with her. Resp. Exs. 10, 11, 12, 15, and 24.
Respondent made efforts to try to work with and communicate with J.B., notwithstanding his behavioral issues.
She tried speaking to him directly and told him that his behaving was keeping him from learning and preventing the other student from learning.
Respondent testified that she liked J.B., and, as disruptive as he was, she felt a great deal of compassion for him. She understood his bad situation at home and knew that his family was split up among foster homes. She believed that his disruptive behavior was attention-seeking and that he was an angry boy.
The undersigned finds that the more credible and persuasive evidence establishes that Respondent had trouble with J.B., who presented a formidable challenge to teach. This very likely would have been true for any teacher dealing with him. Respondent sought help from his teacher and the administration. The observations and concerns raised by Vino, while understandable, do not rise to the level of providing clear and convincing evidence of a violation of any statute, policy, or rule.
Behavior Observed by Principal Susan Groth
Susan Groth has been the principal at Frontier for six years. She felt that the collegial and helpful climate at her school changed after Respondent came to the school.
While offering no causal or underlying link to Respondent, Groth claimed that teachers became more reserved, no longer left their doors open in the morning, and had fewer interactions with one another.
She claimed that this collegial atmosphere changed with Respondent's arrival.10/
Groth claimed to have personally witnessed that after certain encounters with Respondent, Community Language Facilitator Melady Roque would be shaken and crying.11/
Groth personally encountered combative behavior from Turnbull when she would try to have conversations with her. She also started to receive complaints from other teachers about Turnbull.12/
In response, she offered Respondent different training opportunities, which Respondent attended. Groth provided Respondent with two mentors for advice because she was new to the "push in" and "pull out" class system at Frontier.
Groth was made aware of issues involving Respondent from other teachers within her first three weeks at the school. She received reports about Respondent concerning intimidation, humiliation, interruptions, unprofessionalism, and Respondent being very defensive.13/ However, she did not witness those encounters or behaviors herself. She noted that Respondent was defensive when she would provide constructive feedback to her.
During one of her classroom observations of Respondent at work, a student misread certain sight words. Respondent nonetheless praised his work. Groth addressed the matter with
her. She felt that Respondent's response to her counseling was very defensive.
Subsequently, Groth gave a written observation report to Respondent. Respondent disagreed with several observation points made by Groth. She provided Groth with a written explanation setting forth her rebuttal and verbally defended her position.14/
Despite this, when Groth provided her with helpful resources and training to review, Respondent participated. However, Groth felt that Respondent did not accept her criticism very well.
The issues that Groth had with Respondent were becoming less serious as time went on. It appeared to Groth that by January of Respondent's first year at Frontier, Respondent was beginning to properly adjust to the school environment and personnel.
However, shortly thereafter, during an investigative meeting with Turnbull, Groth confronted Respondent with the names of several teachers that had complained about Respondent's behavior.15/
During the meeting, Turnbull had a pad of paper out and was bearing down hard and writing every time a new name of a witness was disclosed by Groth. At one point, she threw down her pencil on the table in frustration and stated, "This is horse
shit." She did not throw the pencil at any person, nor did Groth think that it was her intent to do so.
Respondent's union representative, at one point, had to calm her down because Respondent's arms were flailing, and she was explosive. Respondent used profanity during the meeting.16/
Despite Turnbull's actions, the process went on to completion. Neither Respondent nor her union representative ever asked for the meeting to be adjourned. Respondent's actions during that meeting were documented.17/ Pet. Ex. 11.
Turnbull provided her version of this investigatory meeting with Groth. She received notification that an incident involving A.C. was being investigated. The notice of the meeting advised her that there was going to be an inquiry into an incident regarding A.C. At the meeting, other matters, unrelated to A.C., were brought up by the principal.
Respondent objected to the other matters being raised.
She felt that she had been "blindsided" and was being treated unfairly by consideration of matters that were not part of the official notice to her. Respondent became upset and started crying because these issues were statements made against her by colleagues, and she did not know so many people were upset with her. She testified that none of her colleagues ever approached her about any of these complaints or issues.
She thought that the meeting was called to discuss one specific incident regarding one specific child. She was overwhelmed when she learned that there were so many complaints against her by teachers who had never said anything to her.
Respondent was completely unaware that the statements from other teachers had even been taken. She admitted she felt betrayed and was extremely upset, stunned, and shocked. She did not threaten any person and did not confront any of the complaining teachers or staff members.
Groth claimed to be worried about the safety and security of her staff and students, because of Respondent's profanity, emotional state, and explosive behavior at the meeting. Groth worried about Respondent "going after" one of the people on the list of witnesses announced at the meeting. After the meeting, Respondent was escorted off the campus without incident.
Groth's belief that the mood at her school changed after Respondent arrived, without her own specific observations of conduct by Respondent, is nonetheless credited. However, her "sense" of an atmospheric change falls short of clear and convincing evidence of a violation of a policy or rule by Respondent.
While Groth had the responsibility to observe and evaluate Respondent's performance, Respondent had the right to
professionally and respectfully defend that performance in the observation conference. The manner of her evaluation performance defense does not violate any statutory policy or rule.
However, the undersigned finds that Respondent's use of profanity and her unrestrained and explosive conduct, at the investigative meeting, were inappropriate and insubordinate. Petitioner provided sufficient and credible evidence to prove a violation of the rules and policies by clear and convincing evidence regarding her actions and conduct during this investigatory meeting with Groth.
Other Relevant Events and Testimony From Respondent
Aside from teachers who claimed difficulties or hostile encounters with Respondent, there were also teachers and colleagues who complimented her work and teaching methods.
Janine Brockelbank has been a "push in" teacher at Frontier since 2003, like Turnbull. When she worked together in the room, she did not observe any problems with Turnbull. She observed Respondent working with Lisa Caprio's students, and the interaction seemed positive and professional to her.
Turnbull often spoke closely and quietly to children in consideration of the privacy of the children and to prevent embarrassment. Brockelbank also stated that Respondent was cooperative and collaborative when they compared lesson plans with one another.
Caprio taught at Frontier since it opened in 2001.
She found Respondent to be on time and was always prepared to work with students. She promptly got started with the students and seemed to be ready to work with them.
Caprio never had any issues with Respondent in her classroom. Caprio stated she did not find any issues with a teacher interrupting her lesson for assistance with a student. In her view, it was appropriate for a "push in" teacher to ask for her help with a student.
Jennifer Eddy taught at Frontier for 13 years. Eddy observed Respondent work with her students. There was nothing that Respondent did while she was teaching in the same room that disturbed her or kept her from doing her job, nor caused her concern for the well-being of Eddy's students while they were taught by Respondent.
Eddy thought that Respondent's one-on-one instruction seemed appropriate, collaborative, positive, helpful, and beneficial to the students.
Catherine Burda is a 14-year veteran teacher at Frontier. She observed Respondent work hard and well with one of her students and felt she learned a lot from Respondent. Respondent had a good relationship with her students and came prepared each day.
Burda wrote a positive and praising email to the principal regarding Respondent's work. Resp. Ex. 16. Burda appreciated that Respondent always spoke honestly and freely with
her.
Karen Lundgren worked with Respondent at H.L. Johnson
and considered her to be a good colleague. Lundgren worked closely with Respondent, who was cooperative, collegial, and friendly. Respondent got along with students and taught them well. She acted professional and caring towards both students and colleagues.
Smyrna Daumec, an 18-year teacher, taught with Respondent at H.L. Johnson. She found Respondent to be a good colleague because Respondent would contribute ideas on how they could work together and they shared lesson plans.
Notably, she witnessed Respondent having professional disagreements with colleagues, but none of those professional disagreements adversely impacted her ability to teach. Respondent knew the material that she was teaching and was a cooperative coworker. Respondent was kind to the students and not belittling or mean.
Parent S.S. had a daughter in Respondent's third- grade, gifted math class at H.L. Johnson. Her child learned and made progress in Respondent's class. Respondent remains her favorite teacher to this day. Her child learned and achieved in
Respondent's class. Respondent consistently kept S.S. updated on her child's progress through email or notes in the agenda.
S.S. never had any problems with Respondent, and her daughter had a good year of school when she was with Turnbull. She observed that Respondent interacted warmly with students and parents and acted very friendly and cheerful.
Parent C.B. knew Respondent as a teacher for her two children at H.L. Johnson. When her children had Respondent as a teacher, they never acted or manifested a desire not to go to school. Respondent kept her updated on her children's progress, and she had open communication with Respondent while she was the teacher for both of her children.
She found Respondent to be volunteering and helpful.
She saw Respondent interact with other children in addition to her own when she was on campus and did not observe anything that was negative in those interactions.
Her children had good years in school when they were in Respondent's class and seemed happy with her as a teacher, despite Respondent being a strict teacher. As a parent, C.B. was very happy with Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause,
pursuant to sections 120.569, 120.57(1), and 1012.33(3), Florida
Statutes (2016).
The burden of proof is on the School Board to establish that the disciplinary action proposed is justified under the facts and circumstances of the case.
Normally, the burden of proof in a teacher discipline case, such as this one, would be to establish the supporting facts by a preponderance of the evidence. Allen v. Sch. Bd. of
Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990);
§ 120.57(1)(j), Fla. Stat.
However, it is undisputed that Article II, Section M of the Collective Bargaining Agreement, between the Palm Beach County School District and the CTA, requires that charges in disciplinary cases be based on "just cause" and proven by a higher standard: "clear and convincing evidence."
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 at issue. In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
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. Id. (quoting with approval Slomowitz v. Walker,
429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
In a disciplinary hearing at the Division of Administrative Hearings, evidence must be developed at the hearing to justify the action contemplated by the agency. See,
generally, § 120.57(1)(k), Fla. Stat.; and Fla. Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
Likewise, once the School Board delineates the charged offense(s) in its charging document or petition, those are the only grounds upon which discipline may be based. See Lusskin v.
Ag. for Health Care Admin., 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st
DCA 1996)(Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act.); Klein v. Dep't of Bus. & Prof'l Reg., 625 So. 2d 1237, 1238-39
(Fla. 2d DCA 1993); Delk v. Dep't of Prof'l Reg., 595 So. 2d 966,
967 (Fla. 5th DCA 1992)("[T]he proof at trial or hearing [must] be that conduct charged in the accusatorial document."); Willner
v. Dep't of Prof'l Reg., Bd. of Med., 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576 So. 2d 295 (Fla. 1991)(Violations
not charged in the administrative complaint cannot be sustained.).18/
It is axiomatic that whether Respondent committed the charged offense(s) is a question of ultimate fact to be decided by the undersigned in the context of each alleged violation. McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Respondent's teaching techniques and personal habits and mannerisms may have been different, unorthodox, or even annoying to other teachers at the school. Nonetheless, the vast majority of her conduct was not proven to be in violation of the rules or illegal. At the end of the day, Respondent's conduct, with one exception, was not shown by either clear or convincing evidence to violate any material statute, rule, or policy.
The undersigned concludes, however, that Respondent's language, actions, and conduct during the investigatory meeting with Groth was uncalled for, inappropriate, and insubordinate. It violated the standards of conduct, policies, or rules charged in the Petition.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order withdrawing the proposed five-day suspension and issuing instead a letter of reprimand to Respondent regarding her conduct during the investigatory interview with her school principal.
DONE AND ENTERED this 9th day of March, 2017, in Tallahassee, Leon County, Florida.
S
ROBERT L. KILBRIDE
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 9th day of March, 2017.
ENDNOTES
1/ It was not clear if this was primarily a visual observation, audible, or both. Further, the father provided no dates, times, or even school locations where his observations occurred.
2/ No details as to when, where, to whom, or why were provided.
3/ This was observed by her briefly as she passed by and glanced over at them, not pausing or stopping.
4/ The undersigned finds Cabrera's conclusion to be unconvincing and not helpful, particularly since "J" (as she described him) is not "A.C.," whose name was different and who was a fifth-grader at the time, not a second-grader. It is not clear that Cabrera observed the same incident as Smith.
5/ During the hearing, the undersigned observed that A.C. was quiet and soft spoken.
6/ "Pushing in" simply meant that Turnbull, who was not assigned a regular class of students, rotated among several classes and came in to the teacher's class on a temporary basis to teach selected students in her area of expertise.
7/ Madzi used a microphone and amplification system in the class room. Madzi felt that the "tone" of Respondent's voice, when she spoke to her, was negative and not professional.
8/ Cabrera did not believe Respondent knew she was the one driving ahead of her due to her tinted windows.
9/ Respondent later learned that Liberati had to leave early because her child's pre-school had called about her daughter running a fever and that she had to pick her up immediately.
10/ While her sense of the change in the environment may have been accurate, concluding that this phenomenon was caused solely by Respondent or constituted a violation of a statute, rule, or policy by Respondent is tenuous, at best, and unsupported.
11/ No details were provided to independently assess these encounters or determine the context, or what was said or done.
12/ These general concerns that were raised are hearsay. They do not, of themselves, provide the basis for any finding of fact or proof of a charged violation.
13/ Again, these hearsay accounts cannot provide a basis for any factual finding by the undersigned.
14/ Groth agreed that teachers were permitted to question and rebut observations by the administration.
15/ Specific details of this meeting were not provided, such as date, time, and location.
16/ No details were provided.
17/ Groth felt she had to document the meeting that afternoon because she was worried for the safety of her staff and students due to Respondent's explosive behavior.
18/ The School Board's Petition (charging document) was scant on any factual allegations to support the rules or policies allegedly violated. For instance, in the section entitled "Facts and Legal Basis for Administrative Charges," paragraph 9 listed one specific incident. It concluded by alleging other "similar reporting," but provided no details or facts. Paragraph 11 included other conclusory claims without including any specific facts. However, the issues tried in the case and the facts
presented were tried by consent as there were no timely objections to the vast majority of testimony presented.
COPIES FURNISHED:
Jean Marie Middleton, Esquire Palm Beach County School Board Office of General Counsel
3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239
West Palm Beach, Florida 33416-9239 (eServed)
Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart, Commissioner of Education Department of Education
Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Dr. Robert Avossa, Superintendent Palm Beach County School Board
3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
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 |
|---|---|---|
| Jul. 26, 2017 | Agency Final Order | |
| Mar. 09, 2017 | Recommended Order | Under the standard required by its CBA, School Board did not prove by clear and convincing evidence charges of misconduct related to Respondent's interactions with students and teachers, but did prove misconduct related to a meeting with her principal. |
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