The Issue The issue in this case is whether Respondent, Jean Berrouet, committed the violations alleged in the Notice of Specific Charges and, if so what disciplinary action should be taken against him.
Findings Of Fact Jean Berrouet (Berrouet) has worked at Lakeview as a teacher from 1992 through October 2006 in Miami-Dade County Florida. He taught Haitian Creole to the ESOL students from Haitian background as well as basic science, social studies, and mathematics to the ESOL Level 1 and 2 Haitian Creole students. On or about June 1, 1998, Berrouet was officially reprimanded for using corporal punishment in disciplining students. He was specifically directed by memorandum "immediately to refrain from using physical means to affect student behavior" by Lakeview Principal, Edith Norniella. Berrouet's licensure was also previously subjected to disciplinary action in Florida. He was reprimanded by the Education Practices Commission for inappropriately disciplining a student in class by hitting a student with a pointer. On or about April 23, 1999, the Education Practices Commission placed Berrouet on two years of probation with the following terms: acceptance of a written reprimand, yearly probation fees of $150.00, completion of a three credit course on classroom management, participation in the recovery network program and prohibition from violating any laws as well as fully complying with all district school board regulations, school rules and State Board of Education Rule 6B-1.006. Prior to starting the 2006-2007 school year, Berrouet attended an in-service meeting at Lakeview where school policies were reviewed including student behavior, the code of conduct, and corporal punishment. Berrouet was also provided a Lakeview Elementary School Staff Handbook that included specific guidelines and procedures for student behavior including discipline. As a School Board employee, Respondent was expected to conduct himself in accordance with School Board rules. Respondent holds professional teaching certificate 677708 issued by the Florida Department of Education (DOE). His certificate is valid through June 30, 2009. Berrouet only teaches Haitain Creole students. Since 1992, he has used a technique to help the Haitian Creole students try to transition into the American culture and focus them on their lesson. The technique included Berrouet touching the students' ears to get their attention and saying "You have two ears, not one. You have one mouth, not two . . . So you should do more listening than talking." No parent ever complained about the technique to Berrouet or the Administration. Additionally, no administrator ever addressed that there was a problem with the technique Berrouet performed. The technique is not a punishment. Berrouet even used the technique at least once in the classroom on a student while being observed by the principal. Berrouet's testimony is more credible than the children because he has been using the focusing technique for 14 years, been observed by an administrator using the technique and it was never brought to his attention that it was inappropriate. On October 9, 2006, during the last period of the day, Berrouet had approximately 30 students in his mathematics tutorial after-school class from 5:00-6:00 p.m. His actual classroom size assignment was 15. However, a teacher had left early for the day and the other teacher's students were in Mr. Berrouet's classroom for him to oversee, even though the additional 15 students were permanently assigned to the teacher's classroom who had left early. An altercation occurred in Berrouet's classroom at approximately 5:45 p.m. between two students from the other class, A.B. and M.L. A.B ran behind Berrouet, who was standing at the door and asked Berrouet to help protect her from M.L. M.L. was running after A.B. Berrouet put his hand up and directed M.L. to go back to her seat. However, M.L. kept chasing after A.B. running toward Berrouet into his outreached arm and hand with her upper body (to the chest, neck or shoulder). A.B. left the room. Berrouet stood between A.B. and M.L. at the doorway to prevent M.L from going after A.B. M.L. continued to try to push through Berrouet trying to get to A.B. The incident took a few seconds. Berrouet did not make any effort to activate the button to call the office about the incident. If he had left the doorway to go across the classroom to push the office button, M.L. would have had access to attack A.B. Berrouet standing in the doorway was the only barrier preventing M.L. from reaching A.B. After Berrouet told M.L. to sit down and she was unable to get pass Berreout to A.B., she went to her seat and cried. M.L. cried because she was upset and couldn't get to A.B. Berrouet kept A.B outside and allowed another student to get her book bag and take it to her so she could leave for the day. Berrouet kept M.L. in the classroom a few minutes after A.B left to ensure that A.B. was gone and no further interaction would occur between the girls. Berrouet was not aware of the earlier kicking incident between M.L. and A.B. He first became aware of a problem between the girls when A.B. ran behind him for help. Berrouet did not write up a Student Case Management Referral Form since he had no knowledge of the kicking incident and because he thought he had diffused the potential altercation by him standing between the students. Berrouet's testimony and that of M.L. is deemed more persuasive then that of the other children witnesses. As the parties were directly involved in the incident, Berrouet and M.L. provided the most competent, credible testimony about the disputed matters. On October 10, 2006, the next morning after the incident, M.L.'s mother showed up with M.L. at Lakeview to meet with Mr. Jeffrey Hernandez, the principal. M.L.'s mother reported that Berrouet had grabbed M.L. by the neck on the previous day. Hernandez completed a Miami-Dade County Public Schools School Operations Incident Report regarding the matter. Berrouet was provided a memorandum dated October 10, 2007, entitled Notification of Allegation. Subsequently, the School Board of Miami-Dade County at a meeting on March 14, 2007, suspended Berrouet without pay and initiated dismissal proceedings. On May 3, 2007, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board policies regarding corporal punishment and responsibilities and duties.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner enter a final order dismissing all charges against Respondent and Miami-Dade County School Board reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 9th day of October, 2007, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2007. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Rudolph F. Crew, Superintendent Dade County School Board 1450 Northeast Second Avenue No. 912 Miami, Florida 33132-1308 Jeanine Blomberg, Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
The Issue The issue for determination in these proceedings is whether the Petitioner, the Department of Insurance and Treasurer, should discipline the Respondent, Warren Scott Jackman, under Section 633.351(2), Fla. Stat. (Supp. 1990), on an Administrative Complaint charging that he has pled nolo contendere to a felony charge.
Findings Of Fact At all times pertinent to this proceeding, the Respondent has been certified as a firefighter, certificate #44701. On or about March 7, 1990, a two-count criminal information was filed against the Respondent in Case No. CF-90-0604 charging the Respondent with two counts of committing a lewd act in the presence of a child. The information alleged that, on two occasions, the Respondent did handle, fondle or make an assault in a lewd, lascivious or indecent manner or knowingly commit a lewd and lascivious act in the presence of a sixteen year old girl in that he did allow, permit or engage her to fondle, touch or rub his penis, but without committing sexual battery. On or about August 24, 1990, the Respondent entered a plea of nolo contendere to the charges. Adjudication was withheld, but the Respondent was sentenced to one year of community control, followed by four years probation for each count, to be served concurrently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order revoking the certification of the Respondent, Warren Scott Jackman, as a firefighter. RECOMMENDED this 11th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1991. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-3. Rejected, as stated, as contrary to facts found and the greater weight of the evidence. (The Respondent, not the Petitioner, was charged and entered the plea.) 4. Accepted and incorporated. COPIES FURNISHED: Lisa S. Santucci, Esquire Department of Insurance and Treasurer Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300 Warren Scott Jackman 1569 Churchill Court Lakeland, Florida 33801 Tom Gallagher State Treasurer, Insurance Commissioner and Fire Marshall The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact The Respondent, Claudia W. Holland, is a teacher employed in the public schools of Broward County, Florida for a period of approximately 31 years and presently holds Florida Teaching Certificate number 13983, Post Graduate, Rank Two. She is presently employed in the public schools in a non-teaching capacity. To substantiate the allegations of the petition filed herein seeking revocation of the Respondent's certificate, the Petitioner called several student witnesses who were either students of the Respondent or were the alleged victims of the "unprofessional, unethical and unauthorized conduct" allegedly engaged in by the Respondent. My careful examination of the testimony of those witnesses revealed glaring inconsistencies in their testimony and for reasons hereinafter stated, cannot provide a basis to support the ultimate penalty of revocation of the Respondent's teaching certificate. This conclusion is based on an examination of the testimony of the numerous student witnesses who testified at the hearing. Without reciting their testimony in detail, I will summarize such testimony and at the outset point out that their testimony was inter alia, contradictory, evasive and generally uncreditable when the testimony is compared to that of other witnesses including that of the Respondent. A summary of pertinent portions of such witnesses' testimony follows. Shirley Smith, a student of the Respondent testified that on the occasion in which Respondent allegedly pushed them into the lockers and struck two students on their legs with a ruler, the incident came about when they (the affected students), admittedly showed up for class after the bell rang. Smith had trouble unlocking her locker and was unable to unlock it until after the bell rang. When the bell rang, she appeared for class along with several other students. Respondent told those students who entered the class after the bell rang to stay outside. It appears that just about the time they were leaving the classroom, an announcement came over the public address system and those late students stayed to hear the announcement. Respondent noticing that they were not leaving the classroom, struck Shirley Smith and Kim Schwab on their legs. (Testimony of Shirley Smith) Smith testified that Respondent often used a yard stick to attract students' attention when they were unruly or were unattentive. Smith testified that when she noticed Kim Schwab's bruise on her leg, it was red. (TR 70) During her testimony, Smith testified that no bruise was left on Kim Schwab's leg. In this respect, her testimony contradicts that of a statement written by her immediately after the occurrence allegedly took place. (See Respondent's Exhibit #2, TR. 71). Likewise, the testimony of Kathryn Smith, also one of Respondent's former students who was allegedly "picked off the classroom floor approximately 18 inches by her neck and thereby scuffed her shoes when she was pushed into a locker by Respondent." Throughout her testimony, Smith testified that she was unsure of the statements to which she was testifying. She testified that approximately one minute after Kim Schwab was struck by Respondent, a black mark had appeared on her leg. In this regard, her testimony also contradicts that contained in a written statement by her given immediately following the incident (See Respondent's Exhibit #1). Kim Schwab, also a student who was struck by Respondent while listening to an intercom message at the doorway of Respondent's classroom, testified that the bruise was all red until she went to the clinic where bactine was administered. Ms. Schwab testified that Respondent would call students "fools" when they would fail to do their class assignments or for example when they lost their work folders. She denied that Respondent engaged in any other name calling. She also corroborated the statements of other student witnesses to the effect that Respondent used the ruler from time to time to attract students' attention. She testified that she was struck after Kathy Smith was pushed. However, she did not see Kathy being pushed into the locker (when she allegedly scuffed her shoes) although she was standing right next to her. On the other hand, the Respondent, a teacher in the school system for approximately 31 years testified openly, frankly and candidly about her duties as a teacher and with respect to the allegations leveled against her. She admitted as charged that she occasionally used the term "nigger" and "cracker." However, she testified that she used cliches as teaching tools and at no time intended such to derogate her students or to cast racial slurs toward them. She told of how she requested her students to engage in a discussion respecting the use of the terms "nigger" and "cracker" by having them turn to the dictionary and reflect on the meaning of such terms as they relate to the races with some reflection on the connotation that such words have traditionally meant in the past. (TR. 284 -286) She also admitted to the use of the term "jackass" on one occasion to criticize a disruptive student. She denied ever calling student "fools" although she admitted to the use of the term "silly" when a student engaged in acts and/or conduct which in her opinion amounted to such. She further denied calling students "crazy" or calling a student a homosexual as alleged. In this regard, she testified that one student called a fellow student a "gay" whereupon she asked that student what he meant. That student replied that he (meaning the other student) was a homosexual. Finally, she denied throwing books, staplers, etc. at students as alleged and the testimony of other student witnesses seem to bear her testimony out in this regard. Respecting the allegation that the Respondent used threatening gestures with a meter and yard stick and a hammer while teaching, the evidence reveals that Respondent used the sticks to tap on her desk to gain disruptive students' attention and that a hammer which had been brought to the classroom to nail decorative posters on the bulletin board was used by her in the classroom one day in a gavel-like fashion. There was no testimony adduced whatsoever to so much as imply that she used the hammer to hurt students. Turning to the allegation that Respondent "administered illegal corporal punishment . . . by pushing, shoving and scratching students," the evidence falls short. Aside from the noted inconsistencies in the testimony of those students who were allegedly the victims of such behavior and/or conduct, the Respondent's version appears much more believable and creditable. For example, it is all but impossible to conclude that Respondent could even lift a student by her neck, let alone lift a student some 18 inches by her neck as testified to by the alleged victim. Moreover, it was noted that those students who were standing in the immediate vicinity of the alleged activity denied that such conduct occurred. We are therefore left with the situation where we have a substantiated allegation that Respondent either in an effort to eject students from her classroom or force them where they belong, struck one student, Kim Schwab. The Respondent does not deny that she might have struck Kim Schwab while trying to get she and other students to either take their seats or leave the classroom after the bell had sounded. In so doing however, there is no testimony indicating that she used more force than was necessary under the circumstances or that in fact her striking the student (Schwab) was intentional. Evidence reveals that after the incident occurred, the matter was called to her attention by the school administrator whereupon the Respondent could not even recall whether or not she in fact hit the student. However, that evening she grappled with the fact that she might have struck the student for several hours in an effort to try and recall all that actually happened. No similar incidences occurred during the remainder of the school year. It was noted as Respondent's counsel points out that Section 232.27, Florida Statutes, entitled "Authority of Teacher" provides, inter alia: . . . each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of students. This statutory pronouncement as interrupted in Williams v. Cotton, 346 So.2d 1039, 1041 (1st DCA, 1977), is that: "this statute, in authorizing - in fact requiring - a teacher to keep 'good order' in his classroom necessarily implies the power to the teacher to use reasonable physical force (not amounting to corporal punishment) to do so. Without such reasonable implied power, the requirement to keep 'good order' would be meaningless". In addition, Section 232.275, F.S., entitled "Liability of Teacher or Principal" provides: Except in case of excessive force or cruel and unusual punishment, a teacher or other member of the instructional staff, a principal or his designated representative, or a bus driver may not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules, regarding the control, discipline, suspension and expulsion of students. This authority seemed to point out that the Respondent at least had the right to use reasonable force to insure the maintenance of a tranquil teaching atmosphere. Additionally, it was noted that on one occasion the Respondent was counselled regarding her teaching methods and when corrective measures were requested of her, she took appropriate action to remedy the situation. (Testimony of Respondent and Warren Smith, Principal). Chapter 231.28(1), Florida Statutes, permits the suspension and revocation of a teaching certificate when the person charged has been found guilty of personal conduct "which seriously reduces her effectiveness as an employee of the school board." Admittedly, there existed problems with respect to the Respondent's teaching practices and for which she should perhaps be reprimanded as provided in the Board's rules. However, the statutory provision upon which revocation is here sought rests on a finding that the conduct engaged in by Respondent is that level of conduct which "seriously reduces her effectiveness as a school board employee." While the evidence is clear that the Respondent, in an effort to eject several late students from her class, struck Kim Schwab, there was no showing by competent and substantial evidence in the record that this in any manner reduced her effectiveness as a teacher. (See for example Boyette v. State, Professional Practices Council, 346 So.2d 598 (1st DCA, 1977). For these reasons, I conclude that the Petitioner failed to meet its quantum of proof in the manner required to warrant suspension of the Respondent's teaching certificate. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the petition filed herein be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of November, 1977. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November. COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1572 Tallahassee, Florida 32302 Mr. Tom Benton Professional Practices Council 319 West Madison Street Tallahassee, Florida 32304 Ronald G. Meyer, Esquire 5401 West Kennedy Boulevard Suite 990, Lincoln Center Tallahassee, Florida 33609 Mr. Edward Kuhn Broward County Courthouse Room 248 201 Southeast 6th Street Ft. Lauderdale, Florida 33301
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of March, 2017.
Findings Of Fact Although Wesley John Baker was born on November 13, 1963, he was only in the seventh grade in January of 1979, at the Dunnellon Middle School. He was one of twenty-five students in mathematics class respondent taught right after lunch hour. One day, after about seventeen of respondents students had assembled for postprandial instruction in mathematics, and after the class bell had rung, young Wesley sauntered into the classroom with both hands atop his head. Respondent stood in front of the class waiting for the stragglers to be seated. As Wesley passed between respondent and his classmates, he let his arms drop to his sides, striking respondent in the fact with his forearm in the process. The other children laughed to see one of their number hit the teacher. Wesley said, I'm sorry." "That's not enough," answered respondent as he struck Wesley with the back of his hand. This also elicited laughter from the young mathematicians. In subsequent conversations with school officials about the incident, respondent explained, "He hit me so I hit him back." When respondent hit Wesley back, the blow landed above Wesleys left eye, breaking the skin. Wesley's eye watered and hurt for the remainder of the day, and he was unable to keep his eye open. When his mother, Mrs. Ernestine Baker, saw him, she asked what had happened and took him to a doctor. No damage was done to the eye tissue, but a faint scar remained above the eye, at the time of the hearing. The school board of Marion County, in which Dunnellon Middle School is located, has written policies regulating corporal punishment. These regulations require that corporal punishment "be administered only after it has been authorized by the principal in writing, designating the person who may administer the punishment, " petitioner's exhibit No.4, and that administration of corporal punishment shall be witnessed by at least one other adult." Id. School Board policy also specifies that "[no other student shall be present during the administration of corporal punishment." Petitioner's exhibit No. 4. These regulations also require that corporal punishment be administered posteriorly by striking the student below the waist and above the knees"; and that corporal punishment "not be administered with malice towards the student nor at a time when the person administering the punishment is angered or impassioned.... Petitioner's exhibit No. 4. Respondent was aware of these regulations but questioned their wisdom. In the Dunnellon Middle School Registration and Information Handbook 1978-79, corporal punishment is defined as "the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules." Petitioner's exhibit No. 2.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Education suspend respondent's teaching certificate for ninety (90) days. DONE and ENTERED this 24th day of December, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Craig R. Wilson, Esq. Professional Practices Council 315 Third Street West Palm Beach, Florida 33401 Mr. Michael J. Cushing 890 St. Rt. 80 Belle Glade, Florida 33430
The Issue Whether Respondent's educator's certification should be sanctioned for alleged gross immorality or an act involving moral turpitude, and other offenses in violation of Section 231.2615(1)(c), (e), (f) and (2), Florida Statutes.
Findings Of Fact Respondent, Daniel Ayers, holds Florida Educator Certificate number 735644, which was valid through June 30, 2005. At all times relevant hereto Respondent was employed as a second grade teacher at Gulfport Elementary School in the Pinellas County School District during the relevant school year. On July 5, 2000, at about 8:15 p.m., Respondent entered the public restroom at Lake Seminole Park, Pinellas County Florida, where he was observed by Deputy James Brueckner of the Pinellas County Sheriff's Office. It is a well-used park, and people were present that evening. It was still light at that time, and Lake Seminole Park was being used by families and children. The playground is close to the northeast corner of the restroom Respondent entered. Respondent approached a urinal, and, after facing it for about 30 seconds, he went to the back wall where it was possible for him to observe, through the openings, anybody approaching the restroom. At that point, Respondent had his penis in his hands and was masturbating by holding his penis and fondling it. He then replaced his penis in his pants through the fly, pulled down his shorts, and began moving his hand up and down on his penis in a rapid motion. Deputy Brueckner, who was inside the restroom, removed his badge and identified himself to Respondent. He told Petitioner that he was a detective and showed him the badge. He told Respondent that he was under arrest, but that he should be calm. They would go out to his vehicle to do the paperwork. Respondent made a move towards the door, as if he was going to run. Deputy Brueckner grabbed him, and Respondent shoved the deputy and fled. Deputy Brueckner pursued Respondent and caught him. Respondent swatted the deputy several times. Two other deputies came to Deputy Brueckner's assistance, and Respondent was subdued. Respondent was charged with indecent exposure of sexual organs (a misdemeanor) and with resisting arrest with violence (a felony). He subsequently entered a plea of No Contest to the charge of indecent exposure of sexual organs and to the reduced charge of resisting arrest without violence in Pinellas County Circuit Court. He was adjudicated guilty on both charges by the court and placed on probation. Respondent admitted to Michael Bessette, an administrator in the office of professional standards, Pinellas County School District, that he was the person arrested and charged as a result of the incident on July 5, 2000. In Bessette's expert opinion, the public would not tolerate the type of behavior exhibited by Respondent on July 5, 2000, at Lake Seminole Park. Respondent's effectiveness as a teacher was seriously reduced to the point where the school district had to remove him from teaching duties. In Bessette's opinion Respondent engaged in conduct that constitutes gross immorality and would not be tolerated under state or local ethical standards. Respondent resigned his teaching position with the Pinellas County School District on April 25, 2001, following his conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Section 231.2615(1)(c), (e), and (f), Florida Statutes. It is further RECOMMENDED that a final order be issued revoking Respondent's teaching certificate for three years, imposing a $1,000 fine for the above violations, and that upon re- application for certification, imposing such conditions as are just and reasonable. DONE AND ENTERED this 14th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2003. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Daniel Ayers 7096 111th Street, North Seminole, Florida 33772 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mary Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue Should Petitioner suspend Respondent without pay for three (3) days for inappropriately physically restraining a student in mid-December, 1996, while Respondent was employed at Tate High School?
Findings Of Fact At all times relevant to the inquiry, Respondent was an instructional employee of the Escambia County School Board. In this capacity he served as a physical education teacher. He also coached football and track. Respondent has been in the teaching profession for more than 21 years. The majority of that service has been in the states of Alabama and Georgia. Respondent has been employed in the Escambia County School District for approximately two years. On March 14, 1996, Respondent received a reprimand from Jim May, Principal of Tate High School. Tate High School is in Gonzalez, Florida, and is part of the Escambia County School District. The letter of reprimand stated: I am writing this letter of reprimand in regards to an incident that occurred at Tate High School on March 12, 1996. It is my findings [sic] that you put your hands on a student and physically forced him in a chair by grabbing him by the elbow. You should never put hands on a student unless to prevent bodily harm to himself or to others. These actions were inappropriate and must not reoccur. Any further actions of this sort on your part will result in serious disciplinary action to you, including possible suspension or termination. In the fall term 1996 Mr. May met with coaches, to include Respondent, and reminded the coaches not to put their hands on students for any reason in relation to involvement between the coaches and student athletes. This meeting was occasioned by an incident between another coach and a student. The policy which prohibits a teacher from putting his or her hands on a student except to prevent harm to the teacher or to others, is a policy that has application throughout the Escambia County School District. When Respondent was reprimanded on March 14, 1996, Carolyn Spooner, the present Principal at Tate High School, told the Respondent, that he should have allowed the student whom he forced into a chair to walk out of the classroom, as opposed to forcing the student into the desk chair. It was the student's intention to leave the classroom before Respondent forced the student into the chair. If the student had been allowed to leave, Respondent was advised by Ms. Spooner, that the Respondent could have sent a referral to the Dean or sent for a Dean to offer assistance. The referral practice, as contrasted with physical restraint, is the policy for the Escambia County School District. While the Student Handbook describing rights and responsibilities for students in the School District of Escambia County in the 1996-97 School Year contemplates possible corporal punishment, the school district does not impose corporal punishment for high school students. In any event the imposition of corporal punishment is not conducted ad hoc through the instructional staff. It may only be conducted through means established by guidelines for administering such punishment, which establish the nature of the punishment to be administered, under what conditions, and by whom. Notwithstanding the admonitions to Respondent to refrain from placing his hands on students other than in the limited circumstances described, Respondent violated those instructions and acted contrary to the school district policy. This incident occurred on December 10, 1996, at Tate High School while Respondent was teaching a physical education class. On that date a student was less than cooperative in his participation in the physical education class. Basically, the student was unwilling to participate. There was some question about the student's ability to participate. This circumstance followed a history of the student not participating and having provided written excuses from his mother relieving him of the responsibility to participate in the physical education class. Nonetheless, on this date, Respondent felt that the student should walk, while other students played softball. At some point during this episode the student sat on some bleachers at the athletic field and refused to walk as he had been instructed to do by the Respondent. Respondent took the student by the elbow and "helped" the student down from the bleachers. They then commenced to walk around the practice field with Respondent holding the student by the arm. The student pulled away from the Respondent and stated words to the effect that he was not going to do anything on the field that he did not want to do. Respondent sent the student to the "office" to be punished, but the Respondent did not write a referral as required by school district policy. As a result of the Respondent placing his hands on the student's arm, the student received bruises on the underside of his left arm that left dark spots. That injury was reported by the student's mother. The marks that were left on the underside of the student's arm were still visible the following day. The incident was investigated by Ms. Spooner and Roy Ikner, Assistant Principal at Tate High School. On December 13, 1996 Ms. Spooner, as Principal for Tate High School, gave notice to Respondent that disciplinary action was being considered for "grabbing the student by the arm." Ms. Spooner met with the Respondent on December 16, 1996. In that meeting Respondent did not, and does not now, deny putting his hands on the student. Eventually Jim May, who had been elected superintendent of schools, gave notice to Respondent on January 22, 1997, that the superintendent was recommending the imposition of a three-day suspension without pay for the incident with the student that took place on December 10, 1996. The nature of the alleged misconduct was inappropriate physical restraint of the student. The facts reveal that Respondent inappropriately physically restrained the student on December 10, 1996, in violation of earlier instructions from his supervisor to refrain from that conduct. Other than the letter of reprimand and the incident at issue in this case, no other proof has been offered concerning prior discipline of the Respondent. The Respondent in his defense presented assessment system evaluations for the school years 1995-96 and 1996-97, in which he has been found to be a satisfactory teacher overall and has exceeded expected performance in parts of the performance evaluations.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which finds Respondent guilty of misconduct by the inappropriate physical contact with a student on December 10, 1996, and suspends Respondent without pay for three days. DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997. COPIES FURNISHED: John L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 John Benavidez 10141 Vixen Place Pensacola, Florida 32514 Jim May, Superintendent School District of Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470
The Issue The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background of this Proceeding This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb." As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force. Alleged Incidents Giving Rise to Charges S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/ S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb." Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit. Respondent's Defenses Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb. Findings of Ultimate Fact Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb." Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 13th day of December, 2012.
