The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue Whether actions taken by the Hillsborough County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended. whether budgeting and establishing positions by the School Board is sufficient to meet the test of comparability.
Findings Of Fact The Respondent, through its compensatory education section, has the responsibility of administering the Title I program, as called for in the Elementary and Secondary Education Act of 1965, as amended, and for dispensing federal-funds to the various school districts throughout the state of Florida. Petitioner, Hillsborough County School Board, is a large urban school district of over 100,000 children. It has some 11,000 employees and 6,000 instructional employees. Employees are allocated on the formula of a per pupil basis, and numerous adjustments must be made after the fall opening of the schools because of major shifts of pupils over a summertime. Allocations, in order to comply with Title I, is a task which requires a great deal of attention, particularly in the fall of the school year. The following sequence of events are pertinent: The Hillsborough County Title I application for FY '75 was approved initially on the basis of the assurance which was signed by the District School Superintendent indicating that comparability existed in the Hillsborough County Title I schools and would continue to be maintained throughout the 1974-75 school year. A memorandum dated September 27, 1974, was signed by Halley B. Lewis, Jr., Administrator, Compensatory Education, and was circulated to all local school districts in Florida confirming that the U.S. Commissioner of Education was designating October 1, 1974, as the date for collecting data on which a comparability report for FY '75 would be based. On October 7 and 8, 1974, the Compensatory Education Section in the Florida Department of Education sponsored a statewide meeting of Title I, ESEA personnel in Orlando. One of the sessions was devoted to comparability. On November 7 and 8, 1974, the Compensatory Education Section of the Florida Department of Education called a meeting for District School Superintendents, Finance Officers, Federal Program Directors and ESEA, Title I Coordinators from the eleven (11) most populous counties in Florida at the request of one (1) or more District School Federal Program Directors. One- half of the program--which amounted to one-half day--was devoted to comparability as outlined in Section 116.26 of the regulations as promulgated in the Federal Register, Volume 38, Number 124, for Thursday, June 28, 1973. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT", the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." On November 27, 1974, a letter from the Hillsborough County School District, dated November 26, 1974, and an original comparability report were received by the Compensatory Education Section of the Florida Department of Education. On December 2, 1974, a letter from Hillsborough County School District dated November 27, 1974, and a revised comparability report were received by the Compensatory Education Section in the Florida Department of Education. A letter, dated December 5, 1974, was forwarded to the Hillsborough County School District by the Compensatory Education Section requesting the dates that the personnel authorized by the School Board on November 26, 1974, reported for work. The Hillsborough County School District, in a letter dated December 10, 1974, submitted to the Compensatory Education Section a partial report detailing the beginning employment dates of some of the personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. On December 13, 1974, Ralph D. Turlington, Commissioner of Education, Florida Department of Education, received a telegram from Robert B. wheeler, Acting Deputy Commissioner for School Systems, U.S. Office of Education: "This is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal audit. Your continued cooperation is appreciated." The Hillsborough County School District, in a letter dated December 17, 1974, submitted a final report to the Compensatory Education Section detailing the actual beginning employment dates of personnel authorized by the Hillsborough County District School Board on November 26, 1974, for the purpose of meeting comparability requirements. The Director of the Elementary and Secondary Education Division in the Florida Department of Education notified the Hillsborough County School District that ESEA, Title I funds were being withheld from December 1 through December 16, 1974. A letter from the Compensatory Education Section was sent to the Hillsborough County School District on December 20, 1974, for the primary purpose of reaffirming the necessity to maintain comparability. The Compensatory Education Section of the Florida Department of Education, in a letter dated January 3, 1975, notified the Hillsborough County School District of accounting procedures to be followed for the period of suspension of ESEA, Title I funds from December 1, 1974 through December 16, 1974. The Hillsborough County School District sent a letter dated January 8, 1975, to Commissioner Ralph D. Turlington, Florida Department of Education, along with the documentation they used as a basis for requesting "a special hearing to appeal withholding ESEA, Title I funds for Hillsborough County schools from December 1, 1974 through December 16, 1974." On January 24, 1975, the Commissioner of the Florida Department of Education wrote the district school superintendent in Hillsborough County granting their request for a hearing to appeal the withholding of Title I, ESEA funds. Petitioner, Hillsborough County School Board, applied for and received Title I funds for the school year 1974-75. It became apparent from the memorandum marked "URGENT" from the Department of Education, dated November 20, 1974, that some reallocation was necessary. On November 26, 1974 the Hillsborough County School Board authorized additional positions budgeting funds for the positions and on November 22, 1974 filed its report choosing the option to hire additional people into the Title I schools rather than shifting personnel who were already working in the non-Title I schools. By letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 2 through December 16, 1974, for the reason that the additional personnel required were not hired and all did not report to work until December 16, 1974. Some $63,000 of additional local funds were required to hire the additional personnel. Funds withheld from Petitioner in excess of $153,000 are Involved in this hearing. Petitioner contends: That it acted in good faith. That the Board action on November 26, 1974, budgeting, approving and establishing the additional positions was compliance both with the federal statutes and regulations and with the requirements of the memorandum from Mr. W. J. Darden of the Department of Education dated November 20, 1974. Respondent contends: That comparability is a continuous state of being, that it not only must be achieved, but must be maintained throughout the year; That upon collection of the data on October 1, it is incumbent upon the school board not only to approve and establish the additional positions but also to see that the persons are hired and in place, on the job, on or before the filing of the report on December 1. The Respondent's position is that the last person necessary to achieve comparability was not in place on the job in Hillsborough County until December 16, 1974, and therefore it had no alternative but to withhold the funds during the period December 2, 1974 through and including December 16, 1974. The statute under consideration is 20 USCA Sec. 241(e): "(a) A local educational agency may receive grant under this subchapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish)--... (3) That ... (c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this subchapter: . . . Provided further, That each local educational agency receiving funds under this subchapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; ..." The regulation under consideration which was promulgated to implement the statute is 45 CFR 116.26, a part of which reads: "(a) A State educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payment of title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in schools serving attendance areas not designated as title I project areas. Such approval shall not be given unless the local educational agency also provided the assurances and the additional information required by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with 116.45." 116.26(c) "If any school serving a title I project areas is determined not to be comparable under this paragraph, no further payments of title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient addi- tional resources to title I project areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance..." The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 19th day of June, 2015.
