The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 August, 1995.
The Issue The issue for determination is whether the School Board has proven the allegations set forth in the Notices of Specific Charges dated April 3, 2001, and, if so, what penalty should be imposed.
Findings Of Fact The incident giving rise to this case occurred on November 14, 2000. At that time, Respondents Gregory Adams (Adams) and Brett T. Scanlon (Scanlon) were employed as teachers by the School Board and assigned to William Chapman Elementary School (Chapman). Adams has been employed by the School Board since August 1996, and has taught at Chapman since 1998. Scanlon has been employed by the School Board at Chapman since October 1999. Adams and Scanlon shared a second grade classroom during Scanlon's first year at Chapman, and Adams became a mentor to him. At the start of the 2000/2001 school year, Scanlon was assigned to teach third grade, while Adams continued to teach second grade. The complaining witness against Adams and Scanlon, Miguel Suarez (Miguel), was nine years old at the time of the incident. Like many of the teachers and administrators at Chapman, Miguel is of Hispanic origin. English is his second language. Miguel's academic functioning is quite low. In terms of expressing himself, he functions at a four or five-year-old level. His memory functions no better than that of a five- year-old. He was not sure, for example, what school he had attended last year. Miguel is unable to reliably sequence events. He is eager to please and, at least in the presence of the undersigned, attempted to ascertain what adult authority figures wanted and to give it to them. Miguel's learning disabilities are not the first thing one notices about Miguel. Indeed, Miguel began the 2000/2001 school year as a second grade student in a regular education class. It was not until mid-October that the professional educators who worked with him daily mustered sufficient evidence to identify his learning disabilities and appropriately place him into a learning disabilities (LD) program for part of the day. Miguel's family is not adept at communicating effectively with school teachers and administrators. Miguel's mother, Silvia Gomez (Gomez), does not strive for a united front between home and school. In addition to his mother, Miguel resides with her live-in boyfriend. Both are irregularly employed. Sometime prior to the incident on November 14, 2000, Miguel's father had committed suicide. Miguel was aware that his father had died, but had never received counseling directed to this loss. Adams is an African-American from an impoverished, hardscrabble background. Out of seven siblings, he and one other have achieved a college education. Adams feels an obligation to encourage children of similar background. Scanlon is a white male, who previously served in the armed forces. His professional bearing is reminiscent of what official Miami used to look like. He too is committed to teaching. At the time of the final hearing, Chapman’s racial and ethnic composition, as well as the mix of English and Spanish spoken as first languages, typifies the rich diversity of Miami-Dade County in the 21st century. But it also provided fertile ground for misunderstanding, miscommunication, and mixed signals. Compounding the potential for trouble at Chapman, at the time of the incident, some teachers employed a practice called ”time-out” to deal with students with whom they were having a problem at a moment when they were not able or willing to deal with the problem themselves. Time-out, though not part of the officially approved discipline program at Chapman, was widely known in the school. The practice was discontinued after and as a direct result of this incident. At the time of the incident, Adams and Scanlon had a good faith belief that it was a form of professional courtesy within the school, and not an act which would place one’s career in jeopardy. Time-out was initiated by the teacher having difficulty with a particular student. She would take or send the disruptive student to a fellow teacher who would use his own discretion in returning the child to a compliant mode. Sometimes, the mere act of sending the child to another teacher was sufficient to inspire contrition. Sometimes it wasn't. Sometimes a child would join the time-out teacher's classroom. Sometimes the child would be taken to a private area and given a stern lecture. Miguel, due to his learning disabilities and in particular his extremely poor communication skills, was not a good candidate to respond positively to a stern lecture. Rather, it was frightening to him, particularly when delivered by two adult male teachers previously unknown to him. Adams, on the other hand, had good results in the past with students referred to him for time-out. Adams was experienced in administering time-outs for fellow teachers, and the record reflects no complaints about either Respondent's techniques with reference to their handling of time-outs. Adams and Scanlon had no knowledge of Miguel’s limitations and special circumstances on November 14, 2000, when one of Miguel’s teachers, Leah Gilliard (Gilliard), was angry at Miguel for “helping” to collect books without permission. Gilliard delivered Miguel to Adams, who in turn sought the assistance of his colleague Scanlon. Miguel’s time-out ended in a student bathroom, where Respondents used language and metaphors which may have been effective with a third grader of average communication skills, but which served only to frighten Miguel. In particular, Scanlon asked Miguel why he wanted to throw his life away and if he wanted to flush everything down the toilet. Asked by Scanlon questions to the effect of why he was throwing his education away like he was flushing it down the toilet, Miguel started laughing. It may well be that Miguel laughed out of fear, or confusion, but Scanlon and Adams perceived disrespect. Rather than switch metaphors, Adams took Miguel to a child-size toilet stall and said “This is your life going down the drain if you don't get serious about education.” As he said this, he flushed the toilet with his foot. Miguel was sufficiently chastened to obey Adams' direction to apologize to Scanlon for having been (in Respondents' perception) rude. Miguel did not cry or exhibit other signs of distress to Respondents as they escorted him from the bathroom. Scanlon returned to his own classroom and Adams returned Miguel to Gilliard. At Adams' direction, Miguel apologized to Gilliard and the time-out ended. Miguel said nothing of the incident until later that night. At bedtime, Miguel told Gomez that “a brown man and a white man” had “put his head in the toilet.” Gomez did not take the claim seriously, and Miguel was not agitated or upset. Gomez told Miguel to go to sleep and he did so. The next morning, however, Miguel said he did not want to go to school, so his mother went to school with him. In the presence of Miguel, she first met with Gilliard, and next with teacher Millie Johnson (Johnson). Johnson, on hearing the toilet story, said to Miguel in a loud and “forceful” voice, “They didn't really do that, did they?” Miguel answered, “They almost.” Adams was summoned, and admitted to having had Miguel in his custody for time-out, but not to any type of physical abuse. By this time, Miguel had told at least three adults, his mother, Gilliard, and Johnson, that he, Adams, Scanlon, and a flushing toilet were all in proximity to one another while Miguel was being sternly double-teamed on the subject of his behavior—-a fact which Adams and Scanlon do not dispute. Dissatisfied with Adams’ explanation, an angry Gomez left an upset Miguel behind at school to be cared for by teachers, administrators, and counselors who were busy with their regular work. As the day progressed, Miguel was required to tell his story to no fewer than four more teachers and administrators. Miguel began to add substantially and horrifically to the story he had told his mother the night before. Meanwhile, Adams and Scanlon were immediately transferred out of Chapman and assigned to a district office. At different times and places, Miguel has claimed that Adams kicked walls and slammed doors; that Scanlon threatened to cut off his tongue and his fingers; that Adams threatened to cut out his tongue and teeth; and that Adams pushed his head just inside the rim of the toilet seat, near the water, and asked, “Do you want to drown?” In addition, Miguel has claimed that both teachers took him to a stairwell where Adams told Miguel that he would drop him down the stairs, pull out his teeth, and do "something" to him if he told his mother. Miguel's story has grown to include allegations that one or both teachers made him stand on one foot and pretended to push him down the stairs. It is also alleged that Adams made him run up and down the stairs chasing an unidentified boy that they had picked up on their way to the stairs. For reasons not reflected in the record, a couple of days after the incident, Miguel's mother's live-in companion came to the school office screaming, “How could teachers do this!” For several days following his mother's visit to Chapman, Miguel was agitated and did not want to go to his homeroom. The record is unclear as to whether his agitation was the product of the November 14th incident, or adult reaction to it as horrific details were added, or being simply overwhelmed by the attention. Soon after the incident, Miguel was administratively promoted to a third grade homeroom. He continues to be enrolled at Chapman. Gomez retained an attorney to pursue a civil action on Miguel's behalf. At the time of the final hearing in this case, the incident which occurred on November 14 is in active litigation and requires a significant amount of Miguel's time. He is fearful of failing this year because he is missing a lot of school due to the legal proceedings. Gomez and her lawyer sought and received publicity for their claims against Petitioner. In seeking media coverage they knowingly and voluntarily made Miguel's identity a matter of public notoriety for purposes of influencing the outcome of the litigation. Because Petitioner's case rests entirely upon Miguel's claims that he was subjected to criminal conduct far beyond the time-out described by Adams and Scanlon, the undersigned paid careful attention to his demeanor under oath. Miguel attended a significant portion of the final hearing accompanied by his mother and his lawyer, and listened again to teachers' accounts of what he had allegedly told them about the incident. Miguel's time on the witness stand was prolonged because he had significant difficulty understanding questions and even more difficulty in recalling and recounting facts crucial to the allegations against Respondents. On several occasions his attempted answers were simply unintelligible. Miguel's family, by virtue of its lawsuit against Petitioner, had an obvious financial stake in telling as horrifying a tale as possible. Similarly, Adams and Scanlon, whose careers and livelihoods are at stake, are motivated to downplay the extent of their efforts to intimidate Miguel into improving his behavior. The undersigned, therefore, carefully observed Respondents' demeanor as they testified. The testimony of the Respondents and of Miguel, when evaluated in the context of the entire record, reveals that Petitioner has failed to establish that Miguel was abused in the manner described in the Notice of Specific Charges. Rather, the version of the incident recounted by Adams and Scanlon is far closer to the truth. The Petitioner's allegations are utterly inconsistent with any evidence presented about the character and professional career of Adams and Scanlon. In addition, they are so horrific that one would expect that a child who had suffered such treatment would be far more traumatized than the cheerful, if intimidated, little boy who testified at the final hearing. The undersigned attaches particular significance to Gomez' claim at the final hearing that on the night of the incident, Miguel reported to her most, if not all, of the abuse allegations against Adams and Scanlon. Yet, all of Petitioner's witnesses agree that when Gomez confronted Adams and school authorities the following day, she said nothing of the alleged threats of violence and death made against her son. Gomez claims she did not mention the abuse allegations the next day because she deemed them unimportant when measured against the fact that--taking the evidence in the light most favorable to the Petitioner--Miguel's head had been placed near, but not in, the toilet water. The undersigned rejects Gomez' testimony that Miguel in fact claimed, on the night of November 14th, that he had been subjected to violence, physical abuse, and death threats. Not only did Gomez fail to mention these most serious charges to any of the teachers or administrators, she never mentioned them to school police. It is also significant that the day after the incident, Miguel did not suggest to anyone that any other children were present on the stairs. It was not until his deposition was taken in May 2001, that Miguel stated that another little boy was on the stairs and that the “Brown man” pulled the little boy from class and made both of them run up and down stairs. There is no corroborating evidence that this child exists, or this incident took place on November 14th nor at any other time. Neither is there any corroboration of any kind for Miguel's testimony that several children were in the bathroom at one time or other during the course of the incident and each of these children was ordered out by Adams or Scanlon. Such witnesses, if they existed, would be of obvious value in providing disinterested testimony as to, at a minimum, the demeanor of the Respondents during the incident. Being kicked out of a bathroom by a teacher is not a daily occurrence. Had multiple children been subjected to this unusual behavior by two teachers who were preparing to or were in the process of abusing a second grader, it should not have been difficult to identify them 24 hours later. Petitioner attempted to corroborate Miguel's testimony through a school psychologist, Diane Cotter (Cotter). She opined that the alleged abuse actually occurred. Cotter has no personal knowledge of the incident, does not treat Miguel, and has no credentials in forensic psychology. With deference to the witness, the undersigned disagrees with her opinion as to Miguel's reliability. The record as a whole establishes that Miguel's story grew in direct response to the attention and reinforcement he was receiving as the flushing toilet story was embellished with allegations of criminal child abuse. Petitioner, at its duly-noticed meeting of March 14, 2001, took action to suspend Adams and Scanlon without pay and to initiate dismissal proceedings against them pursuant to Sections 230.23(5)(f) and 231.36(6)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board issue a final order reinstating Gregory Adams and Brett T. Scanlon with back pay. DONE AND ORDERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ FLORENCE SNYDER RIVAS 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 26th day of October, 2001.
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 3rd day of June, 2014.
Findings Of Fact Since August 16, 1972, and at all times material to this case, Alfred Gorton (Respondent) was employed as a member of the Lee County School District instructional staff by a continuing contract with the Lee County School Board. In February, 1993, the Respondent was teaching a Social Studies class during third period at Dunbar Middle School. The Respondent had recently been moved into the classroom and much of his instructional material remained boxed. While his students were working on an assignment, the Respondent began to search for a book in his possession which had been requested by another teacher. He intended to deliver the book upon its discovery. As he went from box to box, he chanted, "ennie meenie miny moe...ennie meenie miny moe." Upon opening a box and locating the book, he exited the classroom and completed his "ennie meenie miny moe" chant while standing just outside the classroom door by saying "catch a nigger by the toe." Immediately upon making the statement, he realized his error. He delivered the book to the teacher and returned to his classroom. Upon entering his classroom, he was confronted by some of his students who had heard the remark. Some of the students took offense at the statement and the connotation of disrespect towards black persons. At that time, the Respondent engaged the class in a brief discussion during which he attempted to explain his statement. He stated that, in his opinion, the word "nigger" could be applied to white or black person, apparently believing that no one should be offended. The Respondent testified, and there is no evidence to the contrary, that he had not previously used the term "nigger" in the classroom other than as to the history of slavery. He further testified that he did not intend to offend anyone. He stated that the rhyme was one he learned as a child, and that he was reciting it apparently absentmindedly while searching through the boxes. One student took specific offense at the remark. Several days after the incident, the Respondent discussed the matter with both the student and his father and apologized for his statement. The student's father suggested that the Respondent should also apologize to the entire classroom. The Respondent discussed the matter with the school's principal. Because of the lapse of time since the incident, the principal thought it better to let the matter rest and directed the Respondent to refrain from further classroom discussions regarding the statement. The school principal testified that he does not condone the use of the word "nigger" and does not believe the Respondent's behavior was appropriate. In discussions with the school board officials, the principal recommended that the Respondent receive a written reprimand for his behavior. On April 13, 1993, the school board suspended the Respondent without pay and benefits for twenty (20) working days.,
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order rescinding the suspension of Alfred Gorton and providing for back pay and benefits for the 20 day period of suspension. DONE and RECOMMENDED this 10th day of January, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2936 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-8, 10-12, 20-23, 25-26. Rejected, subordinate, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 8. Rejected, subordinate. COPIES FURNISHED: Dr. James A. Adams, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 John M. Hament, Esquire Kunkel & Hament Suite 785, 1800 Second Street Sarasota, Florida 34236 Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902
The Issue The issue in this case is whether a schoolteacher physically assaulted three third-graders in his music class, thereby giving his employer, the district school board, just cause to terminate his employment.
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. At all times relevant to this case, Respondent Manuel Brenes ("Brenes") was a music teacher at Little River Elementary School ("Little River"), which is within the Miami-Dade County Public School System. The alleged events giving rise to this case allegedly occurred on November 18, 2005. The School Board alleges that on that date, Brenes lost his temper in the classroom and physically assaulted three students, each of whom was in the third grade at the time and about nine or 10 years old. More particularly, it is alleged that Brenes poked a boy named K. C. in the head several times; choked, slapped, and/or picked up and dropped another boy, K. M.; and threw a chair at a third boy, whose name is C. P. For his part, Brenes denies these charges, claiming that his interventions were neither assaultive nor potentially harmful, but rather were reasonably necessary either to protect students from harm or to maintain order. There is no question that an incident occurred in Brenes's classroom on November 18, 2005, and that the students K. C., K. M., and C. P. were involved. The evidence adduced at hearing, however, is conflicting, confusing, and often incredible, affording the fact-finder little more than a fuzzy picture, at best, of what actually happened. Five eyewitnesses to the disputed incident testified. These were four student-accusers (comprising the three alleged victims and one of their classmates, a girl named "Kate"1) plus the accused teacher himself. In addition, Pamela C. ("Ms. C."), who is the mother of K. C. and also a teacher at Little River, testified regarding her observations and impressions as the "first responder" to arrive on the scene after the disputed incident had taken place. (To be clear, Ms. C. did not see Brenes commit any wrongful act; she has maintained——and testified——that Brenes made incriminating admissions to her in the immediate aftermath of the events at issue.) None of these witnesses impressed the undersigned as wholly reliable; rather, each had credibility problems that have caused the undersigned to discount his or her testimony to some degree. For example, every eyewitness who testified at hearing had made at least one prior statement about the incident that differed in some unexpected way from his or her subsequent testimony. Moreover, to the extent sense can be made of any given eyewitness account, there exist material discrepancies between the witnesses' respective stories. The upshot is that the undersigned does not have much persuasive, coherent, consistent evidence upon which to make findings of fact. Given the generally poor quality of the evidence, which ultimately precludes the undersigned from making detailed findings of historical fact, a brief summary of the key witnesses' testimonies about the controversial event will next be provided. These summaries, it is believed, give context to the limited findings of historical fact that then follow; they also should help explain the determinations of ultimate fact derived from the findings. It is important to note, however, that the summaries below merely report what each witness said occurred; they do not necessarily, or even generally, correspond to the undersigned's findings about what likely took place in Brenes's classroom on November 18, 2005. K. C. K. C. testified that the incident began when one of the boys told a joke that made "the whole class" laugh. Brenes was teaching a lesson at the time, writing on the board. Whenever Brenes faced the board, this particular boy would make "funny faces behind ["Brenes's] back," and when Brenes turned around, the boy would sit down. One student, C. P., continued to laugh, and Brenes made him stand in the corner. Undeterred, C. P. kept laughing. Brenes grabbed the two front legs of a chair, lifted it over his head, and threw the chair at C. P., who "ducked to the ground" to avoid being hit. After that, C. P. was frightened and remained on the ground "for like five minutes." Brenes told the students to put their heads down. He walked over to K. C. and poked the boy in the head three times, apparently for no reason. Then Brenes grasped K. M. by the throat and lifted the student, with one arm, off the ground and over his (Brenes's) head. While holding K. M. in the air by his throat, Brenes shook and slapped the boy before using two arms to set him down. A short while later, Ms. C. entered the classroom, having been summoned by Brenes. K. C. told his mother what had just occurred. Their conversation, as Ms. C. remembers it, will be recounted below. Angered and upset by what her son had reported, Ms. C. removed K. C. from Brenes's classroom and took him back to her own room. There, on November 18, 2005, K. C. wrote the first of two statements about the incident. K. C.'s second statement, dated November 23, 2005, was written in his mother's classroom as well. The most noteworthy discrepancy between K. C.'s prior written statements and his testimony at hearing is the absence of any mention in the prior statements about Brenes having poked him in the head.2 Asked at hearing about this omission, K. C. testified that he had "forg[o]t[ten] that part" because Ms. Castillo (the principal) rushed him to complete his statements.3 K. M. K. M. testified that "everybody was laughing" because the classroom smelled bad. Brenes put C. P. in the corner and then threw a chair at him. C. P. moved or ducked, however, and hence he was not struck by the chair. Brenes hit K. C. on the head. Then Brenes caught K. M. laughing at him (Brenes). Consequently, Brenes grabbed K. M. by the throat with both hands, lifted him out of his seat, and held him in midair, so that his feet were off the ground. Brenes held K. M. at arm's length, with his arms straight out from his body, for about one "second" before setting the boy down. Brenes did not shake or slap K. M., who was able to breathe while Brenes held him by the neck, suspended off the ground; indeed, K. M. never felt as though he were choking, even as he was practically being hanged. Shortly thereafter, K. M. wrote a statement about the incident, which is dated November 22, 2005. In the statement, K. M. made no mention of Brenes's having thrown a chair, nor did he report that Brenes had hit K. C. in the head, as he would testify at hearing. C. P. According to C. P., the trouble began when K. M. made C. P. laugh, which was sufficiently disruptive that Brenes told C. P. to stand in the corner. This discipline proved to be ineffective, for C. P. continued to laugh. C. P.'s ongoing laughter caused Brenes to grab a chair and walk quickly ("a little bit running") towards C. P. The boy ducked, and the chair, which remained in Brenes's hands and was not thrown, struck the wall. C. P. was unable to give consistent testimony at hearing concerning the distance between his body and the spot where the chair hit the wall. In different answers he indicated that the chair struck as near to him as two or three feet, and as far away as 20 feet. Brenes put the chair down, nowhere close to any students, and told the children to put their heads down. C. P. finally stopped laughing. In a discovery deposition taken before hearing, C. P. had testified that he thought Brenes's use of the chair as a disciplinary tool was funny. At hearing, however, he claimed that he had "just made that up" and given false testimony at the deposition. C. P. testified that Brenes had swung him by the arm, but he could not keep straight when this had occurred. At first, C. P. said that Brenes had taken his arm and swung him after sending him (C. P.) to the corner, because C. P. had kept on laughing despite the mild punishment. Then, because C. P. "was still laughing," even after having been swung by the arm, Brenes had rushed at him with a chair, ultimately causing the boy to quit laughing. Later in the hearing, however, C. P. changed his story and explained that Brenes had grabbed his arm and swung him around after the "chair affair"——when C. P. was no longer laughing——for the purpose of leading him back to his seat. Yet another version of the "arm swinging" episode appears in a prior statement dated November 21, 2005, wherein C. P. wrote that after Brenes had threatened him with a chair, he (C. P.) "was still laughing so [Brenes] took my arm and he [swung] me." Testifying about what Brenes did to K. M., C. P. stated that the teacher had taken K. M. by the neck and shaken him, lifting the boy up from his chair and then putting him back down, all because K. M. had been laughing. This testimony corresponded fairly closely to C. P.'s statement of November 21, 2005. Interestingly, however, on December 13, 2005, C. P. had told the detective who was investigating the charges against Brenes that Brenes merely had grabbed K. M. by the shirt and placed him back on his chair because K. M. was "playing around." C. P. also informed the detective that "the class [had been] laughing and playing, and Mr. Brenes was trying to stop them." C. P. said nothing at hearing about Brenes's allegedly having struck K. C. on the head. Likewise, he did not mention, in his written statement of November 21, 2005, the alleged attack on K. C. However, C. P. did tell the detective on December 13, 2005, that he had seen Brenes "tap" K. C. on the head. Kate Kate was in the classroom when the disruption occurred, although she did not see "all of it, really." She testified that, at the beginning of class on November 18, 2005, while Brenes was calling the roll, some boys were talking and laughing, and they kept on laughing even after Brenes had instructed them to stop. C. P. was one of the laughers. Brenes made him stand in the corner. The laughter continued, so Brenes got up and threw the chair on which he had been sitting toward the wall where C. P. was standing. The chair flew across the room, in the air, and hit the wall. C. P. ducked and was not harmed. Meantime, K. M. was laughing. Brenes "grabbed him up" and talked to him. K. M. started to cry, and Brenes let him go. Kate did not see anything untoward happen to K. C. Rather, Brenes "just talk[ed] to him, because he was laughing, too." After the incident, Kate prepared a written statement, which is dated November 21, 2005. As far as it went, her hearing testimony was essentially consistent with her prior statement. The prior statement, however, contains an additional detail about which she said nothing at hearing. In her statement, Kate wrote that, after throwing a chair in C. P.'s direction, Brenes took a table and hit a desk with it, causing the desk to hit the wall. Ms. C. Ms. C. was at lunch on the day in question when two students approached her with a request from Brenes that she come to his classroom, where her son was presently supposed to be having a music lesson. Ms. C. told the students that she would be there in about five minutes. When Ms. C. arrived, Brenes's students were well- behaved and "sitting very quietly." Brenes informed Ms. C. that her son, K. C., had been disrespectful to him, in particular by laughing at Brenes as though he were "a stupid person." Upon learning of her son's misbehavior, Ms. C. was neither perturbed nor nonplussed, but skeptical; she immediately demanded an explanation from Brenes: "How do you know when someone is laughing at you as though you're a stupid person?" After being persuaded that her son had behaved badly, Ms. C. reprimanded him in front of the class. Brenes thanked Ms. C. for coming, and she turned to leave. Before taking his seat, K. C. said, "But mommy, that's not all that happened." "What happened?" she asked. "Mr. Brenes poked me in the head," replied K. C. Ms. C. asked Brenes if this were true, and Brenes admitted that he had "tapped" K. C., but not hard enough to cause pain. Ms. C. started to leave, but K. C. stopped her again: "But mommy, that's not all." Thereupon, an exchange ensued much like the one just described, except this time, K. C. reported that Brenes had thrown a chair at C. P. "Mr. Brenes, did you throw the chair?" Ms. C. asked. Again, Brenes admitted that the accusation was true, but denied endangering the children. Before Ms. C. could leave, K. C. stopped her for the third time, saying, once again, "But mommy, that's not it." This initiated the now-familiar pattern of dialogue. K. C. accused Brenes of having picked up K. M. and dropped the boy "hard." Ms. C. asked Brenes if he had done that. Brenes conceded that he had, yet he assured Ms. C. that the children had never been in danger. Ms. C. had heard enough. She instructed K. C. to leave the classroom with her, which he did. The two of them proceeded directly to the principal's office. Ms. C. reported the incident to the principal. After listening to Ms. C. and her son, the principal decided to have Brenes removed from his class, and she called the school police. (Evidently, it was not thought necessary to hear from Brenes before taking these actions.) Brenes was kept out his class for a day or two but then was allowed to return to his regular duties. This upset Ms. C., who felt that "nothing was being done." As a result, Ms. C. "took it upon [her]self" to call the School Board's "Region Office" and lodge a complaint in her capacity as parent. Ms. C. was told to prepare an "incident report," which she did, on November 22, 2005. She submitted the incident report the following day. Shortly thereafter, Brenes was removed from Little River and administratively reassigned to the Region Office pending the outcome of the investigation. Brenes On November 18, 2005, Brenes met a class of third- graders at the cafeteria and took the students to his music room for a lesson. At the time, his music classes were being held in a portable classroom because Brenes's regular room had been damaged in a hurricane. Brenes's temporary classroom had an unpleasant odor. The room's bad smell caused the children to go "berserk" upon arrival; many began running around and misbehaving. One of the boys, C. P., pushed another student to the floor. The tables in the room were on wheels, and some of the children were pushing a table toward the boy on the ground. Brenes pushed the table out of the way, so that the student would not be hurt.4 Meantime, K. M. was engaging in horseplay, throwing himself off his seat and landing on the floor. Brenes viewed this misbehavior as not just disruptive, but potentially dangerous, so he took hold of the naughty child at the waist, lifted him up off the floor, and placed him back on his seat where he belonged.5 The students continued to be disruptive, so Brenes tossed a chair toward the wall, away from all the students, to grab their attention and stop the rowdy behavior.6 This quieted the students down——except for K. M., who started running for the door, where C. P. was standing with his arm outstretched, blocking K. M.'s path. Brenes rushed over and pulled C. P. away from the door to prevent a dangerous collision.7 Brenes's disjointed testimony fails to give a cogent explanation for why C. P. had been standing next to the door in the first place.8 In a prior statement, however, Brenes reportedly had told the detective that, before having tossed the chair, he had taken C. P., who was misbehaving, by the arm and led him to the corner, where the student was to remain until he had calmed down. This prior statement finds ample corroboration in the students' respective accounts. While the commotion continued, K. C. was laughing at the situation. Walking past the student's desk, Brenes tapped K. C. gently on the head and told him to quit laughing. About this time, the students calmed down and became quiet. Brenes commenced teaching his lesson for the day, and thereafter the class paid attention and stayed on task. Near the end of the period, Ms. C. appeared in the classroom, having been summoned by Brenes earlier when her son (among others) was misbehaving. Brenes was not asked at hearing to recount the particulars of his conversation with Ms. C. Whatever was said, however, resulted in Ms. C.’s yelling at Brenes in front of the whole class. Brenes, trying to defuse this awkward situation, became apologetic and attempted to explain what had happened, but to no avail. Ms. C.——who took her little boy's word against Brenes's——would not let Brenes tell his side of the story. Resolutions of Evidential Conflict Regarding the Disputed Event 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; for dismissal to be warranted, in other words, no more (or less) must be shown than that there is a slightly better than 50 percent chance, at least, that the historical event in dispute actually happened as alleged. As the fact-finder, the undersigned therefore must consider how likely it is, based on the evidence presented, that the incident took place as alleged in the School Board's Notice of Specific Charges. Having carefully evaluated the conflicting accounts of the disputed event, the undersigned makes the following findings concerning what happened in Brenes's classroom on November 18, 2005. It is highly likely, and the undersigned finds with confidence, that the incident stemmed from the misbehavior of students who were cutting up in class and generally being disruptive. There were, however, neither allegations, nor proof, that Brenes was in any way responsible for this misbehavior. Rather, it is likely, and the undersigned finds, that the children became boisterous in consequence of the classroom's foul odor. The students K. C., K. M., and C. P. were the ringleaders of the rowdy students, and, in the course of the event, Brenes was compelled to redirect each of them. More likely than not, C. P. was the worst behaved of the three main offenders. Because C. P. was clowning around, Brenes placed him in the corner. It is likely that when he did this, Brenes took C. P. by the arm and led him to the spot where he was to stand. The evidence is insufficient to persuade the undersigned that Brenes touched C. P. in a manner that was intended, or reasonably would be expected, to cause harm or discomfort; it is possible that this occurred——the odds, on this record, being roughly in the range of 25 to 40 percent——but not likely. As for what exactly happened with K. M., the undersigned can only speculate. The undersigned believes that the likelier of the possibilities presented is that the boy was rolling off his chair and flopping to the ground, more or less as Brenes described K. M.'s disruptive activity (although Brenes probably exaggerated the risk of danger, if any, this misbehavior posed to the child). The likelier of the scenarios presented (having a probability somewhere in the neighborhood of 35 to 50 percent) is that Brenes physically returned the boy to his chair, picking him up in a reasonable, nonpunitive fashion and similarly setting him back down.9 The possibility that Brenes strangled the boy, as charged, is relatively low——between 15 and 30 percent——but nevertheless nontrivial and hence bothersome, given the seriousness of the accusation. That said, however, the undersigned is unable to find that any of the possibilities presented is more likely than not true. Therefore, the School Board's proof fails as a matter of fact on the allegation that Brenes choked, slapped, or otherwise assaulted K. M. Brenes admits having tossed a chair, a point that is corroborated (to some degree) by all of the eyewitnesses except, ironically, C. P., the student toward whom the chair was allegedly thrown. Brenes, however, denies having tossed a chair at any student, and the undersigned credits his denial. More likely than not, it is found, Brenes tossed a chair away from the students, as he initially claimed, to focus the students' attention on something other than the rambunctious boys who were creating a disturbance. (The undersigned doubts that the chair was tossed to prevent injury, as Brenes asserted at hearing.) Brenes also admits that he tapped K. C. on the head while urging the boy to be quiet. It is likely——and indeed Brenes effectively has admitted——that this was done as a disciplinary measure. Brenes denies, however, that he tapped the child in a manner intended, or as reasonably would be expected, to cause harm or discomfort. The undersigned credits Brenes's denial in this regard and therefore rejects as unproven by a preponderance of the evidence the charge that the teacher forcefully "poked" K. C. in or about the temple. Other Material Facts The evidence is undisputed that after Brenes had gotten the three rowdiest boys under control——which seems to have taken but a few minutes——the rest of the class fell in line and behaved for the balance of the period. It is reasonable to infer, and the undersigned does find, that whatever actions Brenes took were effective in restoring order to the class. That is to say, Brenes's conduct did not create chaos, but quelled a disturbance that, from every description, could have gotten out of hand. Such efficacy would not justify improper means, of course, but the results Brenes obtained counsel against any easy inference that his alleged misconduct impaired his effectiveness in the classroom. Continuing on the subject of Brenes's alleged ineffectiveness in consequence of his alleged misconduct, the undersigned is struck by the undisputed fact that, notwithstanding the accusations that had been lodged against Brenes, the principal of Little River allowed the teacher to return to his classroom after spending one day in the library. Thereafter, he taught his music classes, as usual, for five or six days before being administratively assigned to the Region Office effective on or about December 5, 2005. The significance of this fact (Brenes's post-incident return to the classroom) lies in the opportunity it afforded the School Board to observe whether Brenes's alleged misconduct actually had, in fact, impaired his effectiveness as a teacher. As the fact-finder, the undersigned cannot help but wonder: What happened in Brenes's classroom in the next two weeks after the incident? The School Board did not provide an answer. Instead, it presented the conclusory opinions of administrators who declared that Brenes could no longer be effective, which opinions were based on the assumption that all the factual allegations against Brenes were true. Because that underlying assumption was not validated by the evidence adduced in this proceeding, however, these opinions lacked an adequate factual foundation. Moreover, the undersigned infers from the absence of any direct proof of actual impairment that Brenes's effectiveness stayed the same after November 18, 2005.10 While Brenes was spending time at the Region Office pending the outcome of the investigation, another teacher who also was awaiting the results of an investigation began to pick on Brenes, ultimately provoking Brenes into an argument on a couple of occasions. During one of these arguments, Brenes responded to his antagonist by saying, "fuck you." While this profanity might have been overheard by other adults nearby (the evidence is inconclusive about that), it is clear that no students were around. Brenes was the only witness with personal knowledge of these arguments who testified at hearing; in lieu of firsthand evidence, the School Board offered mostly hearsay that failed to impress the fact-finder. In light of Brenes's uncontroverted testimony that the other man had been badgering him "for the longest time," the fact that Brenes lost his temper and used vulgar language, while unadmirable, is at least understandable. The bottom line is, this was a private dispute between adults, one of whom——the one not accused of wrongdoing as a result——was actually more at fault as the provocateur. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Brenes is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Brenes 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 Brenes of all charges brought against him in this proceeding; (b) providing that Brenes be reinstated to the position from which he was suspended without pay; and (c) awarding Brenes back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 27th day of February, 2007, 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 27th day of February, 2007.
The Issue Whether Respondent's teaching certificate should be revoked, or otherwise disciplined, on grounds that he is guilty of engaging in grossly immoral conduct, as alleged.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: The COUNCIL alleges that, on or about April 3, 1979, PAGE engaged in a lewd, lascivious, immoral, and indecent act in the men's restroom of the St. Johns Marina, Jacksonville, Florida, by touching Officer Michael Legan in an unnatural manner; PAGE denies it. (Pre-trial Stipulation, Petition for Revocation, Testimony of Page.) The men's bathroom where the alleged incident took place is adjacent to the St. Johns Marina. The marina is adjacent to the St. Johns River, and across the street from the Alexander Breast Planetarium. A park area nearby is used by groups of children and other visitors to the planetarium. Prior to the time of the incident in question, the Jacksonville Sheriff's Office had received complaints from people at the planetarium, and nearby park visitors, concerning indecent exposure-type incidents occurring in the Marina's bathroom and surrounding area. (Testimony of Legan.) On April 3, 1979, because of this history of reported indecent exposure incidents, Officer Michael Legan, attached to the Morals Squad of the Jacksonville Sheriff's Office, had the Marina's men's bathroom under surveillance for possible homosexual or indecent exposure-type criminal violations. He was accompanied by his partner, Detective Sam Durden, who remained outside the bathroom. At approximately 3:30 or 4:00 p.m., in the afternoon, Officer Legan was wearing civilian clothes and standing inside the bathroom, alongside the wall directly across from a partition which separates the toilets from the urinals. At the time, he was trying to determine whether an unidentified individual using the toilet was there "for a legitimate purpose or whether or not he was attempting to expose himself." (Tr.20) 2/ Shortly thereafter, PAGE entered the bathroom and walked directly to the urinal closest to the door, located across from where Officer Legan was standing. At the same time, Officer Legan moved toward the door, and stopped alongside the wall almost directly behind PAGE. While standing at the urinal, PAGE made what appeared to be a rubbing motion with his hands in his genital area, and glanced over his shoulder in the direction of Officer Legan. This activity continued for about 30 seconds; then PAGE turned 90 degrees to his left, towards the toilet area and away from the bathroom door, held his penis in his hand and rubbed it with a masturbating-type motion. PAGE continued this activity for approximately 20 seconds, while he looked at Officer Legan, then looked down. While Officer Legan observed this activity at a distance of from seven to eight feet, no conversation took place. PAGE then replaced his penis in his pants, started to walk toward the door, and made a motion with his head which Officer Legan understood as a request to follow. In response to what he discerned as PAGE's nonverbal request, Officer Legan followed PAGE toward the door, with the intent to place him under arrest after exiting the bathroom, where Dective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, which separates an inner bathroom door from another bathroom door leading to the outside. As Officer Legan followed PAGE out of the inner bathroom door into the foyer area, PAGE stopped and said, "How are you doing?" Legan answered "Okay," and started to reach into his pocket for his badge. Simultaneously, PAGE grabbed and squeezed Legan in the groin area, and said, "It looks like you're okay." Officer Legan then identified himself as a police officer, placed PAGE under arrest, searched him, gave him the Miranda warnings, and took him to jail for booking. The findings indicated in paragraphs 4(a) through (c) above are, in the main, determined from the testimony of Officer Legan. Respondent PAGE denied, under oath, engaging in the activity described by Officer Legan. It is concluded that Officer Legan's testimony is more worthy of belief and should be accorded greater weight than the conflicting testimony of PAGE. Officer Legan testified with the detached, unbiased manner of a professional law enforcement officer; his narrative testimony was clear, positive, logical, and internally consistent. His prior testimony, by deposition, introduced into evidence by PAGE, is also consistent with and supports his testimony given at final hearing. No significant defects were shown in his capacity, ability, or opportunity to observe, remember, or recount the matters about which he testified. In comparison, PAGE is a teacher accused of grossly immoral conduct justifying suspension or revocation of his teacher's license. As the accused, he has an obvious bias and interest which affects his credibility. Officer Legan's lack of any discernible bias of interest, coupled with the failure to impeach him or discredit his testimony in any significant way, renders his testimony persuasive. (Testimony of PAGE, Legan; R.E. 3.) All Court and Sheriff's Office records pertaining to PAGE's arrest for the above-described conduct were expunged on August 28, 1979, by order of the County Court of Duval County, Florida. In order to qualify for such statutory expungent, the Court necessarily determined that PAGE had never been convicted of a criminal offense or municipal ordinance violation. The effect of expungent is to restore the accused, in the contemplation of the law, to the status he occupied before the arrest. (R.E. 1.) PAGE'S PERFORMANCE AS A TEACHER PAGE has been a competent and effective elementary school teacher in the Duval County School System since 1972. His area of particular expertise has been teaching disadvantaged children reading skills through structured, federally sponsored, reading programs. He has consistently been rated by his supervisors as a "satisfactory" teacher--the highest rating possible. Principals of the schools where he has taught have commended him for his knowledge and performance in teaching remedial reading, good rapport with students, and his ability to understand deficiencies of disadvantaged children and enhance their self-concept. Because of his skills, he was selected to operate the Hoffman Laboratory, a structured reading program for disadvantaged children, at Oceanway Elementary School, Jacksonville. Under his leadership, the Laboratory has been so effective that teachers from other counties have visited to observe and learn. (Testimony of Baker, Sandberg; R.E. 3,7.) PAGE'S CHARACTER PAGE, honorably discharged from the U.S. Marine Corps in 1960, has been an active and responsible ember of his community and the Baptist religion for many years. His church pastors know him as a moral, honest, and religious man, a person of flawless reputation and integrity. He has been married for 32 years, led a normal family life, and successfully raised three children. The charges against him are not in keeping with his wife's view of his character. (Testimony of Evelyn Page; R.E. 4,5.) The policy of the Duval County School Board is to ensure that teachers accused of sexual misconduct are not left in a position where they have contact with children. The Board perceives that such action, on its parts, is necessary in order to provide assurances to parents that their children will be safe. The ability of PAGE to effectively continue to teach at Oceanway Elementary School has been reduced, due to the expected reaction of parents and staff members to the charges against him. (Testimony of Gary Simmons, Sandberg.) To the extent that proposed findings of fact submitted by the parties have not been incorporated herein, they are rejected as being irrelevant to the decision reached, or unsupported by the evidence.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's teacher's Certificate No. 137251, be SUSPENDED for two (2) years commencing upon entry of the Final Order in this case. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Frank T. Brogan, as the Commissioner of Education, is the state official charged with investigating complaints against teachers and, upon a finding of probable cause, with filing formal administrative complaints against teachers' certificates. Section 231.262, Fla. Stat. The Education Practices Commission is the state agency charged with the responsibility for issuing final orders and imposing penalties. Id. At all times material to this case, Loretta L. Young held Florida Educator's Certificate 591375, covering the area of biology. Ms. Young currently holds this certificate, which is valid through June 30, 1999. During the 1993-1994 school year, Ms. Young was employed as a science teacher at North Dade Middle School in Dade County, Florida. During that school year, she taught a seventh-grade science class which consisted mostly of African-American children. A male student named C. M. was a member of this class. This seventh-grade science class was large, and the students were very unruly. Ms. Young had a very difficult time controlling the class, and she often became irritated with the students. In addition, the students used to ignore her when she told them to be quiet, and they would "pick at her" and make derogatory comments about her to one another in voices pitched loud enough for her to hear. On March 14, 1994, C. M. was in the back of the classroom playing cards and gambling with several other students. Ms. Young told C. M. to stop gambling. C. M., who was described as a bad student who was consistently disrespectful to Ms. Young and generally disruptive in her classroom, reacted to this order with anger. He walked to the front of the classroom and tapped her on the shoulder. She turned around quickly and struck C. M. in the stomach with her elbow. C. M. loudly accused her of hitting him and threatened to go to the office and tell what she had done. Ms. Young sent a student to summon security, and C. M. was removed from the classroom. Ms. Young consistently referred to the students in her class as "niggers." One of the students who testified at the hearing gave the following as an example of the remarks Ms. Young often made: "Ya'll niggers, ya'll niggers don't know how to act, ya'll don't have no home training." Although children sometimes refer to each other as "niggers," the use of such an epithet by a teacher when addressing students is unprofessional; it causes students to feel uncomfortable in the teacher's classroom, thereby diminishing the teacher's effectiveness. Even Ms. Young admitted that the term "nigger" is derogatory and degrading. It is not acceptable for a teacher to hit a student. Not only does such an act expose the student to physical harm, it diminishes the teacher's effectiveness in the classroom and is in violation of school board policy. There is, however, no violation of school board policy when a teacher inadvertently touches or bumps into a student. The evidence presented by the Commissioner is sufficient to establish that Ms. Young often addressed the students in the seventh-grade science class identified herein as "niggers." The evidence presented by the Commissioner is not, however, sufficient to establish that Ms. Young intentionally hit C. M. in the stomach with her elbow. The greater weight of the evidence presented by eyewitnesses to the event involving C. M. establishes that C. M. startled Ms. Young when he approached her from behind and tapped her on the shoulder, causing her to turn quickly and inadvertently strike him in the stomach.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding that Loretta L. Young violated section 231.28((1)(i), Florida Statutes, and rule 6B-1.006(3)(e), Florida Administrative Code, and placing Ms. Young on probation for a period of three years, subject to such conditions as the Commission deems appropriate. DONE AND ENTERED this 5th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 5th day of May, 1997.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 15 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a social studies teacher at Palmetto Middle School (“Palmetto”), a public school in Miami-Dade County, Florida. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement (“CBA”) between the School Board and the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred on March 18, 2014, during the 2013-2014 school year. On March 18, 2014, Respondent was co-teaching a seventh grade social studies class with Vivian Taylor. Ms. Taylor is another social studies teacher at Palmetto. K.W. was a female student in the class. At that time, K.W. was approximately five feet tall and weighed ninety pounds. Prior to March 18, 2014, K.W. sat in an assigned seat in the back of the classroom of the social studies class co- taught by Respondent and Ms. Taylor. On March 17, 2014, K.W. displayed disruptive behavior in the classroom. On March 18, 2014, as the bell rang to signal that class was about to begin, K.W. and other students entered Respondent’s and Ms. Taylor’s classroom. When K.W. entered the classroom on March 18, 2014, Respondent instructed K.W. that she could not sit at her seat in the back of the classroom, and that she needed to sit at a desk in the front of the classroom. Instead of walking toward her newly assigned seat in the front of the classroom, K.W. disregarded Respondent’s instructions and attempted to walk in the opposite direction toward her prior assigned seat in the back of the classroom. Respondent then stood in the aisle, stepped in front of K.W., and “blocked” her “path” toward the seat in the back of the classroom. Respondent blocked K.W.’s path in an attempt to re-direct her to her newly assigned seat in the front of the classroom. In his effort to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom, Respondent and K.W. made very slight physical contact with each other. The physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. At hearing, Respondent denied that he ever made physical contact with K.W. Ms. Taylor, the only other purported eye-witness to the incident, who testified at the hearing on behalf of the School Board, was asked by the School Board’s counsel to describe whether Respondent and K.W. ever made physical contact. In response, Ms. Taylor testified: It was just their chest, just the top body, because Mr. Chandra-Das is a bit taller than her, so when he stepped up, that’s what touched. Ms. Taylor described the physical contact between Respondent and K.W. as very slight--“it was just a touch,” it lasted “[a] second, half a second.” After Respondent blocked K.W.’s path, K.W. stepped back and put her head down. Ms. Taylor testified that K.W. was visibly upset and crying. Ms. Taylor immediately told K.W. to leave the room and go directly to the assistant principal’s office. Respondent’s supervisor, Principal Lux, acknowledged at the final hearing that there is no written directive or School Board policy which forbids a teacher from blocking the path of a student. Principal Lux further testified that he has never “disciplined a teacher in the past for blocking the path of students and not letting the student go wherever they want,” and that he is unaware of any circumstance in his 15 years with the School Board in which the School Board has disciplined an employee for blocking the path of a student. The persuasive and credible evidence adduced at hearing demonstrates that there was, at most, very slight physical contact between K.W. and Respondent as Respondent attempted to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom. Respondent did not intend to make physical contact with K.W., and the physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. The evidence does not establish that Respondent pressed his body against K.W., as alleged in the Notice of Specific Charges.2/ At no time did Respondent grab, push, shove, punch or place his hands on K.W. in any way. Respondent was justified and acted in an appropriate manner in blocking K.W.’s path in the manner that he did, which was in an effort to re-direct K.W. to her newly assigned seat. On March 20, 2014, Respondent was advised of an investigation with regard to the March 18, 2014, incident involving K.W. On that date, Respondent was specifically advised by his supervisor, Principal Lux, in a letter: You are prohibited from contacting any complainant(s) and/or witness(es), with the intent to interfere with the investigation of the above listed allegation(s). Subsequent to Respondent’s receipt of this directive, Respondent contacted Ms. Taylor and advised her that he was the subject of an investigation regarding the March 18, 2014, incident involving K.W. Respondent showed Ms. Taylor the letter, but he did not attempt to influence her in any way. Respondent did not violate the directive of Principal Lux, because Respondent did not contact Ms. Taylor “with the intent to interfere with the investigation.” In sum, the evidence at hearing failed to show that Respondent’s conduct with regard to the incident in the classroom on March 18, 2014, involving K.W. constitutes misconduct in office, gross insubordination, or a violation of School Board policies. In sum, the evidence at hearing failed to show that Respondent violated Principal Lux’s directive not to contact any witnesses “with the intent to interfere with the investigation.” Accordingly, the School Board failed to prove that Respondent’s communications with Ms. Taylor constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the 15-day suspension of Respondent with back pay. DONE AND ENTERED this 17th day of November, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 17th day of November, 2014.
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled “Notice of Termination of Employment Contract and Immediate Suspension Without Pay” (the “Notice”) from Superintendent of Schools Nikolai P. Vitti to Respondent dated August 30, 2013.
Findings Of Fact Respondent Michael Green has been employed by the School Board as a teacher since 2004. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, chapter 21197, Laws of Florida (1941), as amended (“Tenure Act”) and the Collective Bargaining Agreement (“CBA”) between Duval Teachers United and the School Board for 2008- 2011. At the time of the events at issue in this proceeding, Mr. Green was assigned to Butler Middle School as a health and physical education teacher and athletic director. At the time of the incident in question, which was at the beginning of the 2013-2014 school year, S.J. was a 14-year- old girl who was a student at Butler Middle School. She was starting her second year in the seventh grade. Based on the security video that was admitted into evidence, S.J. was very large for her age, nearly the size of Mr. Green. Principal Maurice Nesmith knew S.J. and characterized her as one of the worst of the 588 students at Butler Middle School. S.J. had a documented history of disciplinary problems for threats and acts of violence and for verbal and physical aggression toward other students, staff, teachers, and even administrators at Butler Middle School. Mr. Nesmith frequently received complaints from teachers, administrators and staff that S.J. was rude, disrespectful, defiant, and resistant to instruction. School security guard Javonne Johnson testified that he was familiar with S.J. and frequently had to deal with her because she would be outside of her assigned classroom without permission. Mr. Johnson stated that it was hard to make S.J. calm down when she was agitated. On January 30, 2013, S.J. caused what Mr. Nesmith’s Discipline Incident report termed “a major disruption” in the Butler Middle School cafeteria. S.J. was angered when a smaller male student snitched on her for throwing food. She commenced hitting the child in the head. She punched him several times before a security guard and assistant principal could intervene. S.J. then proceeded to fight the adults until they managed to corral her into Mr. Nesmith’s office. According to Mr. Nesmith’s report, S.J. stated to him that “she didn’t give a fuck, she don’t care about this shit.” Officer Frederick Robinson of the DCPSPD submitted a written statement confirming that S.J. told the adults, “I don’t give a fuck about nobody, I don’t give a fuck about the police,” and “No one is going to tell me what the fuck to do or say.” As a result of this incident, and many before it, Mr. Nesmith referred S.J. to an alternative school for the remainder of the 2012-2013 school year. Mr. Nesmith testified that when S.J. returned to Butler Middle School for the 2013-2014 school year there was no change in her behavior. Though she was not disciplined for her role in the incident with Mr. Green, S.J.’s return to Butler Middle School was nonetheless short-lived. By early October 2013, S.J. had again been referred to an alternative school because of repeated incidents, including one in which she threatened to kill another student (“I got bullets for your ass”). The School Board placed into evidence video taken by security cameras in the gym and in the hallway outside the gym. There is no sound on the videos. Visual aspects of the findings as to events in the gym and in the hallway on the morning of August 28, 2013, are mostly based on the security video. Findings as to what was said in the gym and in the hallway that morning are based on the credible testimony of witnesses. Brittany Knadle is a first-year physical education teacher assigned to Butler Middle School. On August 28, 2013, she taught a large physical education class of approximately 60 students during first period in the school’s gymnasium. S.J. was enrolled in Ms. Knadle’s first period class. Although it was only the second week of school, Ms. Knadle was already having problems with S.J.’s truculence and had complained to Mr. Nesmith about S.J.’s behavior in her class. On August 28, 2013, S.J. was disrupting Ms. Knadle’s class, wandering through the lines of students who in the security video appear to be lackadaisically performing calisthenics on the gym floor. Mr. Green entered the gymnasium in his capacity as athletic director to ask Ms. Knadle about coaching a sport. Ms. Knadle agreed to coach softball. Mr. Green testified that Ms. Knadle told him that she was having problems with S.J.’s refusal to follow directions. Mr. Green advised her to make S.J. stand against the wall and to give her a grade of zero for the day for nonparticipation in the class activity. Mr. Green stated that he had never met S.J. prior to August 28, 2013, but that he had heard about her physical assault on an administrator and had heard she was rude, disruptive, and disrespectful to authority figures. Mr. Green left the gym but returned a short time later with a form for Ms. Knadle to sign regarding the softball coaching position. Mr. Green observed S.J. continuing her disruptive behavior, wandering around the gym, walking through student lines and not participating in class. Mr. Green believed she was creating a safety hazard for the other students. He instructed S.J. to gather her belongings because he was taking her to the dean’s office. S.J. slowly strolled to the spot on the gym floor where her backpack lay. She stood over the backpack and then rummaged through it for several seconds. She then picked up the backpack and walked toward Mr. Green to exit the gym. Mr. Green testified that while S.J. had been belligerent and cursing during the entire incident, she appeared even more irate, threatening and confident after picking up her bag, saying to him and Ms. Knadle, “You all are going to make me fuck one of you up.” The security video shows S.J. and Mr. Green exiting the gym and into the school hallway. Mr. Green places his hand on S.J.’s shoulder. She walks straight across the hallway to the opposite wall. S.J. turns to face Mr. Green and drops her backpack. Mr. Green moves to within inches of S.J., very nearly nose to nose. At this point, S.J. pushes Mr. Green away with both hands. Mr. Green responds with a right hand strike to S.J.’s face. The blow appears to be a glancing one. S.J.’s head snaps to the right but she quickly recovers and moves toward Mr. Green with her arms flailing. Mr. Green backs up a step or two, braces himself with his right foot, draws back his right hand into a fist, then pushes off the right foot to deliver a full- force punch to S.J.’s face. S.J.’s head snaps violently back to the right and she staggers backward into the wall. Remarkably, S.J. once again shakes off the blow and again charges forward toward Mr. Green. At this point, Mr. Green wraps S.J. in his arms and takes her down to the floor. He holds her down for a few seconds until security arrives to take over. Mr. Johnson was the guard who took over and restrained S.J. He tried to calm her but she continued to yell and scream, cursing and threatening Mr. Green, saying she was going to “kick his ass.” Mr. Johnson noted no marks on S.J.’s face and refused to believe S.J.’s repeated statements that Mr. Green “hit a girl . . . he hit me in my face.” Officer Robinson of the DCPSPD handcuffed S.J. and placed her in the back of his patrol car to await arrest. Mr. Nesmith, who was visiting an upstairs classroom, was called via walkie-talkie and informed that Officer Robinson needed him. Mr. Nesmith came down immediately and spoke to Officer Robinson at his patrol car. Officer Robinson told Mr. Nesmith that he was arresting S.J. for battery on a School Board employee, and explained what happened in the hallway. Mr. Nesmith told Officer Robinson that there was a security camera in that hallway. They had a security guard wait outside with S.J. while they went inside to view the security video with Mr. Green, who had been waiting in Mr. Nesmith’s office. The three men reviewed the video. Mr. Nesmith testified that when he saw the video, he dropped his head and asked Mr. Green, “What were you doing?”1/ Mr. Nesmith immediately contacted the School Board’s professional standards office and his region chief to report the incident. He then took Mr. Green to the principal’s conference room and instructed him to write a statement. The statement that Mr. Green wrote in Mr. Nesmith’s conference room read as follows: I, Michael Green, entered the gymnasium to speak with Coach Knadle. At the time [S.J.] a student in Coach Knadle’s class was causing a disruption. The student was standing walking through the students cursing as they were sitting in roll call on the floor. [S.J.] was asked to get her books so I could escort her to the office to settle down. She began cursing loud causing a seen [sic] as she walked out of the gymnasium. I then stopped her in the hallway to keep her from cursing loud disrupting the learning environment. As she stopped in the hall she continued to curse and yell at me, saying fuck you, you ain’t nobody. I told her to quiet down and she pushed me. Then she started to swing at me. In my defense I tried to stop her arms from hitting me. I tried to keep her at a distance. She stopped for second [sic] then she started to attack me again. I then had to take her to the ground to keep her from attacking me. It is notable that this statement makes no mention of the fact that Mr. Green struck S.J. in the face twice during the altercation. Mr. Green would later contend that he feared S.J. had a weapon when she attacked him, but he made no mention of such a fear in this statement, written within two hours after the incident. Mr. Green was taken into custody by DCPSPD for suspected child abuse. He was interviewed by Detective Don Schoenfeld, who had reviewed the security video. Mr. Green told Detective Schoenfeld that he did not remember hitting S.J. After the interview, Detective Schoenfeld had Mr. Green write a statement.2/ Mr. Green’s statement to Detective Schoenfeld read as follows: I Michael Green entered the gymnasium3/ to speak with another teacher. The teacher was having difficulty getting the student to follow directions. The student began to walk around and throughout the other students causing a safety issue. The student was asked to gather her belongings so that I could escort her out of the gymnasium and to the office where she could calm down. The student began to curse using all kinds of profanity as she exited the gymnasium. Once entering the hallway the student continued to talk loud and curse causing a comotion [sic]. I approached the student to keep her from running and acting wild and crazy. She pushed me with both hands. She continued to curse and threaten me saying “fuck you,” “you ain’t nobody,” “what’s up.” I then tried to keep her at a distance. She began to swing and punch at me. I then tried to subdue her to keep her from causing harm to me and herself. Once I got her to the ground I called for security to assist the situation. As in his earlier statement, Mr. Green here makes no mention of the most notable aspect of the incident: that he struck a seventh grade student twice in the face with his fist. He also makes no mention of any concern that S.J. might have had a weapon. Mr. Green was arrested and spent the night in jail.4/ He was charged with child abuse but the state attorney later dropped the criminal charges. Upon his release from jail, on August 29, 2013, Mr. Green was informed by Mr. Nesmith that he was to report immediately to the School Board’s Consolidated Services Warehouse/Teacher Supply Depot at Bulls Bay until further notice. On or about August 30, 2013, Mr. Green received the Notice, which informed him of the charges against him and of his right to contest those charges. The Notice stated that if Mr. Green chose to exercise his right to a hearing, he would be suspended without pay as of September 4, 2013, and that this suspension would be acted upon by the School Board at its meeting on September 3, 2013. On September 3, 2013, Mr. Green sent an email to Superintendent of Schools Nikolai P. Vitti that read as follows:5/ Dear Dr. Vitti, I am writing you this letter with the deepest concern of my character. First, I would like you to know that by no means am I an evil person or even a child abuser, I am far from what has been perceived of me due to the situation at Eugene Butler. I love and care about my students and I am very sorry for what happened but in all honesty I was defending myself. Please take a few minutes from your busy schedule to read this letter and consider me for reinstatement of my job. I entered the gym that particular day to get a signature from a coach because I proudly serve as the Athletic Director. As I was getting the signature the young lady who works in PE with me was having trouble controlling her class, she asked me to intervene and assist her. She is a first year teacher, small statute young white female who is presently teaching some students that are academically and behavioral challenged. This situation is rough on a first year teacher. I was able to calm her class down and get them in their roll lines but this one particular student continued to curse and disrupt the learning environment. This student was just getting back from Grand Park Alternative School this year. I was aware of her past and her behavioral problems so I asked her why she can’t follow instructions. I told her to report to the Dean’s office, still using abusive language she told me “Fuck You” over and over and continued to say “you ain’t nobody”. She walked to get her bag and gather her belongings. I saw her reach inside a bag she was carrying. I asked her to get out the gym because at that time I felt the other students were in danger and this student was causing a serious uproar. Before leaving the gym she said “y’all mother fuckers always trying me!” She continued to curse and got animated walking to the door. When she left the gym I followed her out at a cautious distance and instead of heading to the Dean office she was headed in the opposite direction to the front office. I told her she was headed the wrong way and this is when I stepped in front of her. I was trying to calm her down and keep her from causing a commotion in the hallway and keep her from walking to the front office. Then she raised her hands and pushed me saying “what’s up” in a threatening manner. Honestly it happened so fast sir until I was in defense mode because I knew what she had done to other staff members and the idea of her possessing a knife really scared me. It was a situation that I have never been in before and I panicked. The student became combative in an instance and I really didn’t know how to handle the situation. She came at me swinging and saying “what’s up, what’s up.” I was backing up trying not to let her get to me because I thought she could have had a weapon. She continued to attack me moving in my direction. When I realized she didn’t have a weapon I took her to the ground calling for security. Once I had her on the ground she continued to kick and try to break away. The entire time she continued to curse and saying “I’m gonna fuck you up”, I’m gonna kill you. Security arrived and she continued to say “let me go so me and this mother fucker can fight.” Again, I have never been in a situation such as this one. I feel truly sorry that this happened. Since the incident I haven’t been able to sleep and I have become depressed over the fear of my career being put in jeopardy. I have over ten plus years of service with Duval County and I have never been involved with anything such as this situation. In closing this letter, I am currently enrolled in graduate school with only three more classes to go and I am majoring in Educational Leadership. I really have hopes and dreams of being a leader one day in this wonderful district but I am praying that you have mercy on me for this situation and consider the circumstance and not to think that I am a child abuser but only I was defending myself from a violent student. I love my job and I really want to continue my career in Duval County. Please consider me for reinstatement, I am sorry for what happened and I am so willing to attend any training or workshops that the district provides to help teachers in these situations. This email again fails to admit in a straightforward manner that Mr. Green punched S.J. in the face. In this email, his third written description of the events in the hallway on August 28, Mr. Green for the first time states that he feared S.J. had a weapon, presumably a knife that she had pulled out of her bag while gathering her belongings in the gym. In the email, Mr. Green also states that he believed he was protecting the other students in the gym class from “danger” and that S.J was causing a “serious uproar” in the gym. The security video shows that the other students were more or less ignoring S.J. as she wandered in and out of the lines and around the gym.6/ In her testimony, Ms. Knadle disagreed that the class was out of control. She stated that the students were loud and were talking over her, and she agreed that Mr. Green was able to calm the students down by speaking to them. Six of seven School Board members were present at the September 3, 2013, meeting at which Mr. Green’s case was considered. The vote to suspend Mr. Green without pay and to terminate his employment with the Duval County School Board was unanimous. In his testimony at the hearing, Mr. Green complained that he had never received training on how to deal with violent students. Sonita Young, the School Board’s chief human resource officer, testified that the School Board offers training in proper restraint techniques to all teachers who specialize in working with students with behavioral disorders and to other teachers on an as needed basis. As a general education teacher, Mr. Green was not an obvious candidate for such training. Ms. Young testified that the training needs of a school are generally determined by the principal. Mr. Nesmith testified regarding “CHAMPS” training in classroom management techniques that all new teachers at Butler Middle School are required to attend. Mr. Nesmith did not require Mr. Green to take this training because there were no apparent deficiencies in Mr. Green’s classroom management. Most tellingly, Mr. Nesmith testified that “teachers know not to punch a student.” A teacher lacking training may face situations in which he must improvise a method of restraining an out-of-control student, but there is no excuse for such improvisation to descend to a fistfight with a middle school student. Mr. Johnson, the security guard, testified that when he is confronted by a physically aggressive student, “I just wrap them up, put my arms around them to keep them from being able to strike me or hurt themselves. If they continue to be aggressive, I put them on the floor and restrain them there.” This common sense approach is exactly how Mr. Green resolved the situation with S.J., but only after twice punching her. It is disingenuous for Mr. Green to contend that he required specialized training to know not to draw back his fist and strike a 14-year-old student in the face. Mr. Green explained the inconsistency of his statements by asserting that he was so stunned by the rapidity of events on the morning of August 28 that he was “out of it.” Mr. Johnson testified that Mr. Green seemed “somewhat bewildered . . . like he couldn’t believe what had just happened.” Mr. Green testified that at the time he wrote his first statement, he honestly believed he had not struck S.J., despite having seen the security video. Mr. Green’s testimony on this point is not credible. His written statements were clearly efforts to minimize his own actions and cast all blame for the incident on S.J. Mr. Green testified that he feared S.J. had pulled a knife out of her bag because of her increased confidence and belligerence after rummaging through her bag prior to leaving the gym with Mr. Green. He further testified that his punches were a desperate attempt to keep S.J. away from him in case she was wielding a weapon. Once he was sure that she was unarmed, he wrapped her up and took her to the ground. Mr. Green’s testimony on this point is undercut by his behavior prior to the first blow being struck. After S.J. backed up against the wall, Mr. Green moved in close, nearly nose to nose with S.J. He testified that this is a technique he learned from watching another teacher deal with angry students. Mr. Green moves in close while speaking calmly to the student, forcing the student to look him in the eye, feel safe, and calm down. Mr. Green’s explanation of this technique was not entirely credible. The psychological rationale of standing extremely close in order to calm a student is not readily apparent. On the security video, Mr. Green’s moving in on S.J. appears more an effort to employ his bulk to intimidate the student than to calm her. Even if Mr. Green’s explanation of his motive were credited, his action had the opposite of its intended effect. There is little question that his invasion of S.J.’s personal space was the proximate cause of her pushing him away, which started the fight. In any event, Mr. Green’s willingness to closely approach S.J., with his arms at his sides, belies his later assertion that he feared the child was holding a knife. His apprehension of a weapon appears to be an explanation concocted after the fact to explain why he chose to punch S.J. rather than restrain her. Mr. Green’s defense pointed out that no witness to the aftermath of the incident noted any marks, bruises, discoloration or severe injury to S.J.’s face. The fact that there were no marks on S.J.’s face was a matter of fortuity and no thanks to Mr. Green. This defense also overlooks the potential psychological harm to the child. S.J. was handcuffed, arrested, and placed in a patrol car because the adults did not believe that Mr. Green had punched her and Mr. Green himself would not own up to his actions. Much testimony was presented as to Mr. Green’s character, his genuine concern for students and their respect for him, and his lack of any prior disciplinary history. All of this testimony has been considered and fully credited. Much evidence was presented as to S.J.’s obstreperousness, her foul manner of speaking, her complete disregard for authority, and her perpetual verbal and physical aggression toward other students, staff and faculty of Butler Middle School. This evidence has likewise been considered and fully credited. However, even if it is stipulated that Mr. Green is an exemplary human being, a fine teacher and coach with an unblemished record, and a dedicated employee of the School Board, and it is further stipulated that S.J. was the worst student ever to darken the corridors of Butler Middle School and was in fact asking for what she got on August 28, 2013, there would be no excuse or rationalization sufficient to lessen the impact of Mr. Green’s actions on that date. When confronted with a large and aggressive student, Mr. Green’s instinct was to do exactly the wrong thing and punch her in the face. He compounded the harm by equivocating as to his actions even after seeing video evidence of what he had done. Mr. Green’s instinctive reaction during this incident could not help but effect the way he is viewed by his peers in the teaching profession and by the students who are entrusted to his care. His judgment and honesty are in question, at best. His effectiveness in the classrooms and the gymnasium of Butler Middle School has been irreparably impaired. In light of his spotless disciplinary record up to the time of the incident, the School Board could have considered transferring Mr. Green to another school to give him a chance to salvage his career. However, given the ferocity of the events depicted in the security video, the decision to terminate Mr. Green’s employment is entirely understandable. The evidence fully supports the School Board's preliminary decision to terminate Mr. Green's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order terminating the employment of Michael A. Green as an instructional employee of the School Board. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 27th day of June, 2014.
