The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
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 which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
Findings Of Fact Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools. The statute under consideration is 20 U.S.C.A. Sec. 241(e): "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . . (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ." The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads: "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45." 116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance." Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of $325,000 are involved in this hearing. The following sequence of events are pertinent: On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." The date of December 1, 1974 is established by Regulation 116.26(b)(7). On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability. On December 1, 1974, Petitioner filed its report. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for School Systems, United States Office of Education to Honorable Ralph Turlington, stating: "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated." By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith on its part and substantial compliance is all that the statute and regulation require. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7). The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
The Issue Whether Respondent, Claude Paul ("Respondent" or "Ms. Paul") committed the violations as alleged in the November 18, 2018, Petitioner's, Miami-Dade County School Board ("the School Board") action letter; and, if so, what is the appropriate penalty.
Findings Of Fact The Parties 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. Ms. Paul began her employment with the School Board in 2008 as a substitute teacher. Since then, she was employed at several different schools. Starting in February 2016, she was assigned to Miami Park. Prior to the instant case, Ms. Paul had no prior discipline. Ms. Paul's employment with the School Board is governed by Florida law, the School Board's policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. Circumstances Giving Rise to Ms. Paul's Discipline The proposed discipline is based upon conduct occurring on September 5, 2018, as a result of an altercation between an 11 year-old student, J.B., and Ms. Paul while he was an Emotional and Behavior Disturbed (EBD) student in her fifth grade class. Ms. Paul had J.B. as a student the prior year for fourth grade. Due to his frequent disruptiveness, Ms. Paul placed J.B. at a desk in the back of the class facing a wall during most of his fourth grade year (2017-2018 school year). September 5, 2018, was at the beginning of the 2018-2019 school year. On that date, J.B. was talking to another student and did not stop when asked to do so repeatedly by Ms. Paul. Ms. Paul told J.B. she was moving his desk to the back of the class. As Ms. Paul approached his desk, J.B. dropped his pencil case and bent down to pick it up. Believing Ms. Paul was going to physically restrain or move him, as he stood up, J.B. slapped Ms. Paul once or twice on the face and called Ms. Paul a "bitch." The witnesses' recollections of what happened next diverge. According to J.B., Ms. Paul grabbed his arms and twisted them up high behind his back. It hurt immediately and he was "sad and mad at the same time." She then took him to the adjacent room of Clinician Kawine Clermont where Ms. Paul then slapped J.B. in the face after sending Ms. Clermont to check on the students in Ms. Paul's class. J.B. laid on a mat in Ms. Clermont's classroom. He had difficulty getting up and complained that his arms hurt. He was then escorted from Ms. Clermont's room by Antranique Andrews, Miami Park Security Monitor, and Claribel Garcia, Assistant Principal, to the main office. J.B. was also given a bag of ice for his wrist while his grandmother, Linda Carter, who was called by Ms. Paul to come pick up J.B., spoke to school staff. According to Ms. Paul's final hearing testimony, she grabbed both of J.B.'s arms to keep from falling after he slapped her. He struggled to get away and they both fell to the ground. She also testified that she did not pull J.B.'s arms behind his back but rather laid him down on the floor and held his arms. This is inconsistent with her written statement given the day of the incident in which she stated, "Then he punched me. Several time [sic] in the face. I almost fell to the ground . . . I ask [sic] another student to get the mat. I hold one arm in the back, the other on the side. He lay [sic] down crying." Ms. Paul denies being alone in Ms. Clermont's room with J.B. or that she slapped him. Ms. Paul testified that she sent another student to get Ms. Clermont who then escorted J.B. to the clinician's room. The best person to corroborate Ms. Paul's recollection is Ms. Clermont, who did not testify. However, she provided a written statement in which she recited her version of the events. The statement is oddly written in the third person wherein she refers to herself as "Clinician." It states in part: Clinician was in her classroom when two students came over and reported J.B. slapped Ms. Paul. Clinician rushed over and J.B. was laying [sic] on a mat in a ball crying. Clinician had J.B. go over to her classroom. When J.B. went over to clinician classroom he layed [sic] back on mat balled up crying. The statement does not say that she, Ms. Clermont, brought J.B. over, but that she "had" him go to her classroom. This does not preclude the possibility that Respondent escorted J.B. to her room as J.B. claims. Security Monitor, Antranique Andrews, was directed by Assistant Principal Garcia to respond to Ms. Clermont's room. There she observed J.B. curled up and crying on the floor. When J.B. did not get up as directed by Ms. Andrews, she asked teacher's aide, Mr. Flowers (first name unknown) to assist. Together Ms. Andrews and Mr. Flowers got J.B. to stand up and wash his face before they took him to the office. Ms. Andrews observed red marks on J.B.'s arms and that he was upset. Ms. Andrews testified, "His arms were a little reddish. I guess you could say bruised, but red, like if you had an imprint from pressing, but that was it." When Ms. Carter arrived at school to pick up J.B., she was told that J.B. slapped Ms. Paul. She was not informed that J.B. was hurt during the altercation, although she was aware J.B. was given an ice pack because he complained of pain in his wrist. She also observed that the side of his face was red, which she first attributed to him being upset or crying. Video from a school security camera shows J.B. exiting the school while holding the ice pack on his wrist. When Ms. Carter and J.B. reached Ms. Carter's vehicle, J.B. asked for help to open the car door. J.B. was physically unable to open the door. When they arrived home, J.B. asked his grandmother to take him to the hospital because he thought his arms were broken. Ms. Carter, who was not feeling well herself, told J.B. to take a bath and go to bed. However, J.B. needed assistance with undressing because he could not use his arms. The next morning, J.B. still complained that he could not use his arms. Ms. Carter took J.B. to the emergency room at North Shore Hospital. J.B. received x-rays that revealed fractures in both arms. He was asked why he had red marks on his face and what happened to his arms. This was the first time Ms. Carter heard from J.B. what happened at school. Detective Bernise Charley, Miami-Dade Schools Police Department, was dispatched to the hospital where she interviewed J.B. and his grandmother. J.B. described how he had been slapped and physically abused by Ms. Paul while at school. She also spoke with the medical staff and took photos of J.B.'s face and arms. She personally observed red marks on the side of J.B.'s face consistent with a handprint. J.B. was transported to Joe DiMaggio Children's Hospital ("Joe DiMaggio") for further evaluation and treatment. X-rays were repeated at Joe DiMaggio and revealed that J.B. suffered a spiral fracture to his right humerus (upper arm), a distal radial and buckle fracture to his left forearm, and a buckle fracture to his left wrist. The injuries were determined to be consistent with the incident with Ms. Paul as described by J.B. J.B. and Ms. Carter were subsequently asked to meet with the Department of Children and Families ("DCF") and the University of Miami Child Protection Team on September 13, 2018, to review the incident. J.B. and his grandmother were interviewed separately and each described the incident. Dr. Joan V. Alvaranga's report states: J. is an 11 year old boy with fractures of the right humerous and left wrist which are consistent with the report he provided. In addition, J. had red marks on his face, which had resolved by the time of the CPT evaluation, which he reported he sustained when the teacher slapped him on the face. In my medical opinion, this case represents child physical abuse. Deviation from Appropriate De-Escalation Techniques Craig Siegel, District Chairperson for the Clinical Art Therapy Department and lead trainer for Safe Crisis Management, testified that teachers are provided training by the school district in a variety of techniques to safely de-escalate a potentially violent situation and to protect themselves and others. Ms. Paul completed Safe Crisis Management training in December 2016. Teachers are taught that they are to use non- physical intervention strategies first to de-escalate a threatening situation. These include, but are not limited to: talking; evading; blocking; escaping to a "safe zone;" and summoning help. Physical restraint is to be used only as a last resort if the student poses an imminent risk of serious injury or death to themselves or others. The physical techniques taught to teachers are designed to contain the student in the safest manner possible and reduce the risk of injury. Only the least amount of force necessary is to be used. The approved restraint methods do not include twisting a child's arms behind their back or slapping them in the face. Although Ms. Paul certainly had the right to protect herself when slapped in the face by J.B., it strains credulity to assert that a slap from a then 75-pound, 11 year-old boy, posed an imminent risk of serious harm or death such that it was necessary to apply enough force to break this child's arms in multiple places. No other adult witnessed the altercation, but they all saw J.B. curled up on the floor crying. J.B. was hurt badly enough that he was initially unable to get up off the floor without assistance, red marks were immediately seen on his arms and face, and he needed an ice pack for his wrist while still at school. J.B.'s story, that Ms. Paul twisted his arms behind his back and forced him to the floor, has remained consistent. No evidence was presented to suggest that J.B. received his injuries at the hands of anyone other than Ms. Paul. Regardless of whether Ms. Paul slapped J.B. or not, it is clear that she exceeded all bounds of reasonableness in her initial restraint of J.B. in reaction to him slapping her.
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 finding Claude Paul guilty of misconduct in office and terminating her employment. DONE AND ENTERED this 20th day of November, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of November, 2019. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Claude A. Paul 6113 Southwest 33rd Street Miramar, Florida 33023 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
The Issue Whether the Board refused to re-employ Ms. Smith as a teacher's aide for the 1985-1986 school year in retaliation for a Complaint that she filed with the Florida Commission on Human Relations in January, 1983?
Findings Of Fact Ms. Smith is a graduate of a high school in the Gadsden County School system. Ms. Smith successfully completed a business education course at Gadsden Vo-Tech after receiving her high school diploma. Ms. Smith was rated qualified to work as a teacher's aide in the Gadsden County School system by the Central Administration office in 1982 and in 1984. Ms. Smith was employed as a teacher's aide at Gretna Elementary School (hereinafter referred to as "Gretna") during the 1982-1983 school year. She began her employment at Gretna in October, 1982. Ms. Smith's immediate supervisor at Gretna during the first month of her employment was the Principal, Mr. Witt Campbell. Mr. Campbell left Gretna in November, 1982. For the remainder of the 1982-1983 school year, Ms. Smith's immediate supervisor was Rosa Barkley, who replaced Mr. Witt as Principal. Ms. Smith was pregnant during the 1982-1983 school year. On January 24, 1983, Ms. Smith became ill because of her pregnancy and had to go to the hospital. Ms. Smith did not return to Gretna during the remainder of the school year. On March 14, 1983, Ms. Barkley went to visit with Ms. Smith at her home. Ms. Smith told Ms. Barkley that she would return to work approximately two weeks after her baby was born. This meant that Ms. Smith would return after the start of the 1983-1984 school year. Ms. Barkley helped Ms. Smith request a leave of absence. This leave of absence was approved by the Board on March 29, 1983. In March, 1983, Ms. Barkley gave Ms. Smith a satisfactory rating on a Gadsden County Non-instructional Personnel Assessment form which was filed with the Board. Ms. Barkley gave Ms. Smith the benefit of the doubt in completing this form because Ms. Smith had been under Ms. Barkley's supervision only from November, 1982 to January, 1983. Ms. Barkley also recommended to the Superintendent that Ms. Smith be re-employed for the 1983-1984 school year. By letter dated June 17, 1983, Ms. Barkley asked the Superintendent to terminate Ms. Smith. Ms. Barkley made this request because she wanted to have an aide that would start the school year in August, 1983 and not in November, 1983, when Ms. Smith planned to return. Ms. Barkley indicated in the letter that Ms. Smith had been absent because of her pregnancy. The Superintendent, Mr. Bishop, decided to grant Ms. Barkley's request. The decision to terminate Ms. Smith was made by the Board and not by Ms. Barkley. Although the Superintendent generally relies heavily on the recommendation of a principal, the decision to terminate Ms. Smith was that of the Board. The Board, based upon the information it was provided, should have told Ms. Barkley, that a leave of absence, and not termination, was the proper remedy to Ms. Barkley's problem. By letter dated July 27, 1983, Ms. Smith was terminated by the Board. Ms. Smith filed a Complaint with the Florida Commission on Human Relations on January 19, 1984, alleging sex discrimination against Ms. Barkley. Upon the filing of the Complaint the Board investigated and decided that Ms. Smith should be rehired. The Board realized that it had caused the problem and not Ms. Barkley. Ms. Smith was offered the first teacher's aide position available. The position was at Chattahoochee Elementary School (hereinafter referred to as "Chattahoochee"). Ms. Smith accepted the position and began work at Chattahoochee in March, 1984. Ms. Smith worked with fourth grade Chapter 1 children (children who have been disadvantaged with regard to their educational opportunities). Ms. Martha Downs was her teacher. While at Chattahoochee, Ms. Smith had difficulty performing her duties as a teacher's aide. Her primary area of deficiency was in math. Mr. Corbin Scott, the Principal at Chattahoochee, attempted to help Ms. Smith by having Ms. Ella Ponder, a helping teacher, assist her. Although it was alleged that Ms. Smith was required to take a Criteria Reference Test normally taken by fourth graders, the evidence failed to support this allegation. Based upon Ms. Smith's poor performance, Mr. Corbin did not recommend that Ms. Smith be returned to Chattahoochee for the next school year. Although Ms. Smith admitted that she has some problems with math she failed to accept the fact that she was not adequately performing her duties as a teacher's aide. Instead, she believed that Mr. Corbin expected her to "teach" and that he was unfair when he did not recommend her continued employment at Chattahoochee for the next school year. Ms. Smith believed that the Complaint that she filed in January, 1984, affected the way that she was treated at Chattahoochee. This unfounded belief affected Ms. Smith's attitude while at Chattahoochee and later. The Board decided that the period of time that Ms. Smith was employed at Chattahoochee (March, 1984 to June, 1984) was too short. Therefore, in an effort to be fair with Ms. Smith and to settle the dispute with Ms. Smith, the Board decided to place Ms. Smith in another teacher's aide position for the 1984- 1985 school year. During the Summer of 1984, Ms. Smith and the Board settled the Complaint which Ms. Smith had filed in January, 1984. Pursuant to this settlement, Ms. Smith dismissed her Complaint for back-pay and her re-employment at Gretna. Ms. Smith was employed at Gretna during the 1984- 1985 school year as a teacher's aide pursuant to the settlement. Ms. Barkley, Ms. Smith's immediate supervisor at Gretna, was not consulted before the Board decided to return Ms. Smith to Gretna. Principals of schools are not consulted by the Board before employees are assigned to their schools. Although Ms. Smith agreed to return to Gretna as part of the settlement of her Complaint against the Board, she believed that Ms. Barkley would not treat her properly. This belief, which was unfounded, affected Ms. Smith's attitude toward Ms. Barkley and her job during the 1984-1985 school year. Ms. Smith was assigned to assist two teachers for most of the 1984- 1985 school year at Gretna: Ms. Corine D. Palmer and Ms. Charlotte Price. Neither Ms. Palmer nor Ms. Price talked to Ms. Smith about problems which they perceived in Ms. Smith's performance. Ms. Price's attitude was that she was there to teach students and, therefore, she did not want to be bothered with Ms. Smith. Ms. Palmer's attitude was to work around Ms. Smith; she gave up trying to use Ms. Smith effectively because of Ms. Smith's lack of effort. Both ladies essentially stuck their heads in the sand and ignored the problem since neither of them were responsible for evaluating Ms. Smith. Employees at Gretna were required to sign in and sign out on a sheet provided for them at the administrative office of the school. During the school year Ms. Smith was late arriving at school a total of fifteen times. Most of those times she was late more than a few minutes. She was late seven times during 1984 and eight times in 1985. At least three other teachers' aides (Inez Morris, Ida Miller and Mary Wright) were late to school more often than Ms. Smith. While Ms. Smith received an unsatisfactory rating for punctuality for the school year, the other three aides received a satisfactory rating. Many of the times that the other three aides were late, they were late only a few minutes. When they were late more than a few minutes, they notified Ms. Barkley or someone else at Gretna that they would be late, and indicated why. Ms. Smith, on the other hand, did not always notify Ms. Barkley or anyone else that she would be late, or indicate why she was late until she was asked. During the first week of the 1984-1985 school year (August 20-24, 1984), Ms. Smith was late three times. Ms. Smith rode to school with another employee who was late getting to school. On August 27, 1984, Ms. Barkley discussed Ms. Smith's lateness with her and gave her a letter indicating that she was expected to be at school at 8:05 a.m. Ms. Smith was late once during each of the next three weeks. She corrected the problem, however, by arranging to ride with someone else. After the week of September 10-14, 1984, Ms. Smith was late only one other time during 1984. During 1985, Ms. Smith was late at least once a week during seven of the eleven weeks ending March 15, 1985. In addition to being late reporting to school, Ms. Smith was late going to her assigned classroom after arriving at school and after lunch. Ms. Smith was required to be in her morning class no later than 8:15 a.m. Her lateness was reported by Ms. Palmer and Ms. Price and was also noted by Ms. Barkley. Ms. Smith was in the employee lounge on many occasions when she should have been in a class. On October 15, 1984, Ms. Barkley spoke with all of the aides about being in the lounge in the morning when they should be in their classes. Despite Ms. Barkley's comments, that afternoon Ms. Smith was in the lounge when she should not have been, and she continued to be late to her assigned classroom in the mornings. Ms. Palmer and Ms. Price told Ms. Barkley that Ms. Smith was late to class. Both of them tended to do without her and to avoid any effort to try to correct the problem. On February 15, 1985, Ms. Barkley gave Ms. Smith a letter that indicated that Ms. Smith was in the lounge when she was not supposed to be. A similar letter was given to Ida Miller and Dorothy Smith. Ms. Miller and Ms. Dorothy Smith corrected the problem. Ms. Smith did not. Ms. Barkley rated Ms. Smith's attendance as "unsatisfactory". This rating was not based upon the number of days that she was absent. It was based upon the number of times that Ms. Smith was not in her assigned classroom. Ms. Barkley kept a notebook in which she noted the dates of some events involving employees' actions. She has kept these notes since she became a principal. Most of the notes concerning Ms. Smith did not give the reason for absences or lateness. Ms. Smith did not, however, always report the reason for her lateness. Most of the observations involved lateness and absences. The notes concerning Ms. Smith were provided to the Board because she was requested to provide any documentation concerning Ms. Smith. She did not know where her other notes were. Ms. Barkley noted the conference she had with Ms. Smith on August 27, 1984. In this note, she referred to Ms. Smith as "Ms. Attitude." This notation and a later notation that Ms. Smith was in the lounge one day "chomping" show a lack of judgment by Ms. Barkley in the manner that Ms. Barkley referred to Ms. Smith. This lack of judgment is not sufficient, however, to prove that Ms. Barkley terminated Ms. Smith at the end of the 1984-1985 school year in retaliation for the Complaint filed by Ms. Smith in 1983. Ms. Barkley's explanation for these notations is rejected. Ms. Barkley talked to teachers and other aides about Ms. Smith. Ms. Barkley did not, however, limit her inquiries to Ms. Smith. Ms. Barkley was responsible for the supervision of all of the employees at Gretna. She was very active in managing her school. She observed her employees in the halls of the school, in the lounge and in the classroom. She did not single out Ms. Smith. Ms. Barkley asked teachers and other aides about all employees and she checked up on all her employees. Ms. Smith was observed in class by Ms. Barkley. Ms. Smith was seen giving wrong answers and performing sloppy work. When Ms. Barkley talked to Ms. Smith about some of her problems, Ms. Smith's attitude was defensive. She did not believe that she had any problems and believed that Ms. Barkley was being unfair to her. She therefore did not indicate that she agreed with Ms. Barkley or that she would make any efforts to correct her problems when Ms. Barkley spoke to her about her problems. Ms. Price indicated that Ms. Smith had evidenced a poor attitude about her performance with her also. On March 15, 1985, Ms. Barkley met with Ms. Smith and informed her that she would not be recommended for employment during the 1985-1986 school year. Ms. Barkley sent a letter to the Board dated March 15, 1985, recommending that Ms. Smith not be re-employed during the 1985-1986 school year. Ms. Barkley also rated Ms. Smith "unsatisfactory" on five characteristics listed on a Gadsden County Non-instructional Personnel Assessment form dated March 8, 1985. This form was signed by Ms. Smith on March 15, 1985. Ms. Smith was given an unsatisfactory rating for utilization of time, compliance with school and district policies, attendance, punctuality and leadership. This evaluation was similar to the evaluation given Ms. Smith by Mr. Corbin. Ms. Barkley, Ms. Price and Ms. Palmer were given a Personal Reference Form for Teacher Aide Applicants by Ms. Smith. Ms. Smith told Ms. Price and Ms. Palmer that the forms were going to be used by her to apply for a job outside of its school system. Although both teachers had misgivings about Ms. Smith's ability and did not want her back as a teacher's aide, they both liked her personally and wanted to help her find a job. They also wanted to avoid any conflict with Ms. Smith. Therefore, even though they should have known better, they completed the forms giving Ms. Smith affair rating and indicating that they would employ her as a teacher's aide. Ms. Barkley completed the form given to her by Ms. Smith on April 30, 1985. She gave her a poor rating and indicated that she would not employ her as a teacher's aide. Ms. Barkley had completed a Gadsden County Non-instructional Personnel Assessment form when Ms. Smith left Gretna in 1983. Ms. Barkley gave Ms. Smith a favorable evaluation. She did so, however, because Ms. Smith had only worked at Gretna during the 1982-1983 school year for approximately four months and Ms. Barkley had only been there during three of those months. Therefore, Ms. Barkley did not believe it would be fair to give Ms. Smith an unfavorable evaluation. The Board did not refuse to re-employ Ms. Smith for the 1985-1986 school year in retaliation for any dispute between Ms. Smith and Ms. Barkley or any other person. Ms. Smith was not re-employed because she lacked the necessary job skills to work as a teacher's aide and had failed to perform adequately. On or about July 15, 1985, Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that the Board had discriminated against her on the basis of retaliation. The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause." Ms. Smith filed a Petition for Relief. The Florida Commission on Human Relations forwarded the Petition the Division of Administrative Hearings by order dated August 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Smith's Petition for Relief be DENIED. DONE and ENTERED this 9th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 1. 2 2. 3 Irrelevant. 4-5 3. 6-7 22. 8 4. 9 23. 10 5. 11 12. The date of termination was July 27, 1983. 12 10. 13-14 13. 15 20-22. 16 10. 17 8. 18 9. 19 22. 20 23. 21 11. The evidence failed to prove that the Board acted solely on the recommendation of Ms. Barkley. 22 25. 23 26. 24 Not supported by the weight of the evidence. 25-26 27. 27 28. 28 While Ms. Smith may have corrected the "ride problem" she continued to be late during the 1984-1985 school year. 29-31 27. 32-33 33. 34-36 Although these proposed findings of fact are correct they are irrelevant. 37 41. 38-39 Not supported by the weight of the evidence. 40 Irrelevant and not supported by the weight of the evidence. 41 35. Not supported by the weight of the evidence. Irrelevant. 44 35. 45-46 36. Not supported by the weight of the evidence. Although it is true that Ms. Smith did improve her punctuality arriving at Gretna during 1984 she failed to continue to arrive on time during the rest of the school year. See 28. Respondent's Proposed Findings of Fact 1 45. 2 21. 3 10 and 11. 4 14. 5 16. 6 Not supported by the weight of the evidence. See 16. 7 16-18. 8 20 and 22. 9-10 37. 11 41. 12 42. 13 28 and 33. 14 28-29 and 33. 15 45. COPIES FURNISHED TO: EDWARD J. GRUNEWALD, ESQUIRE LEGAL SERVICES OF NORTH FLORIDA, INC. 400 NORTH MADISON STREET QUINCY, FLORIDA 32351 CLAUDE B. ARRINGTON, ESQUIRE 211 EAST JEFFERSON STREET QUINCY, FLORIDA 32351 DONALD A. GRIFFIN EXECUTIVE DIRECTOR 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 DANA BAIRD GENERAL COUNSEL 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
The Issue Whether Respondent should be dismissed from her employment with the Dade County School System for alleged incompetency, insubordination, and willful neglect of duty, pursuant to Section 231.36(6), Florida Statutes. Respondent is a teacher on continuing contract status at Charles R. Drew Elementary School, Miami, Florida, where she has been employed by Petitioner since 1963. On March 10, 1978, she was advised by Petitioner's Assistant Superintendent for Personnel that charges of incompetency, insubordination, and willful neglect of duty had been brought against her by her Principal, Frederick Morley, which would be presented to the Superintendent for his recommendation to the School Board of Dade County. By letter of March, 1970, Respondent was advised that the Superintendent would recommend her suspension and subsequent dismissal from the Dade County Public Schools to the Dade County School board. By letter of March 23, 1978, she was provided official notification that the School Board had suspended her on March 22, 1978, and that her dismissal would be recommended to the Board on April 12 if she did not request a hearing within ten days. She did so on March 28, and on May 8, she was provided with a Notice of Charges consisting of seventeen separate charges alleging grounds for dismissal. At the hearing, Petitioner withdrew Charge 3, 5, 6, 12 and 15.
Findings Of Fact During the 1976-77 school year, Respondent was employed as a teacher of the fifth grade at Charles R. Drew Elementary School, Miami, Florida. The Principal of the school was Frederick A. Morley. On or about October 8, 1976, the Respondent failed to pick up the children of her class at the end of their physical education period. Although Respondent admitted that she was not at the designated place on time, she could not recall why she had been delayed on that particular date. (Testimony of Respondent, Morley) At the beginning of the 1976-77 school year at Charles R. Drew Elementary School, Principal Morley distributed an "Opening of School Bulletin" to all faculty members at a meeting which was attended by Respondent. This bulletin contained school policy on student discipline and corporal punishment. It provided that if such punishment became necessary, the teacher must consult with the principal or his designee prior to its use, and that one of those individuals would determine the necessity for corporal punishment and the time, place and person to administer the same. The policy statement further included the requirement that a third party adult must be present at the time the punishment was administered. Specifications to the size of the wood "instrument" for administering such punishment were set forth in the written policy as well as other guidelines as to the amount of maximum punishment, notification of parents, and the like. (Testimony of Morley, Petitioner's Exhibit 1) On November 1, 1976, Morley saw Cynthia Blue, one of Respondent's fifth grade students, crying in the hall. She informed him that Respondent had paddled her in the classroom. Respondent admitted to him that she had administered punishment to the student and he reminded her of the school policy concerning consultation with him or his designee prior to any such action. He confirmed this admonition with a written note on the same day. Respondent conceded at the hearing that, although she could not recall the incident, it was possible that she gave the student a "lick." She further testified that Cynthia Blue was an unruly student who broke rules with impunity. (Testimony of Morley, Respondent, Petitioner's Exhibit 4) Morley had a conference with Respondent on November 8, 1976, and reminded her at that time that she was obliged to follow the school guidelines on paddling students in the future. At this conference, Respondent conceded that she had not followed the school policy in this regard. However, on three separate occasions thereafter, Respondent again physically punished students without obtaining permission of the Principal or his designee. On November 17, 1976, and on January 18, 1977, she paddled students Monica Morrison and Eddie Byrd in the classroom. On both occasions, she admitted doing so to Morley and he again reminded her by written notes of her failure to follow proper procedures. (Testimony of Morley, Petitioner's Exhibits 2-3) Approximately a year later, on January 9, 1978, Respondent advised Morley that she wished to bring her student, Laurena Butler, to his office for corporal punishment. Apparently, when she arrived with the student, Morley was not there and Respondent therefore asked a nearby aide of one of the school officials to come into Morley's office and witness the spanking. Respondent then took Butler into the Principal's office and paddled her once after first missing her entirely and knocking a wooden tray off the desk and damaging it slightly. (Testimony of Morley, Respondent, Petitioner's Exhibit 5) Respondent's explanation at the hearing for her unauthorized administration of corporal punishment was that Morley was "wishy-washy" on the subject of student discipline and would never authorize her to paddle a student, or do so himself. She claimed that 75 percent of the other teachers paddled much more frequently than she, and that none of them understood the punishment policy of the school. On the one hand, she believed that she could punish a child if a third party was present, but she also testified that she understood the guidelines that required the Principal or his designee to authorize punishment. Respondent's testimony in the above regard was partially refuted by the testimony of her former students. One stated that on two occasions when he was sent to Morley for punishment by Respondent, he was paddled. Another student stated that he had been sent by other teachers to the Principal's office and been paddled about four times. These students had never seen Respondent paddle anyone, but had seen other teachers do so. They testified that she had "bad kids" in her class who made trouble by getting into fights, throwing erasers, and the like. Respondent testified that one of her problems was that she did not have the strength to paddle a child effectively and that they would laugh at her when she attempted to do so. However, she claimed that in telephone conversations with Parents of the students, she learned that they desired that their children be disciplined at school. She further stated that Morley had observed over the years that her discipline efforts were not of the best so he placed her successively in the second, fourth, fifth, and sixth grades. She believed that this made her task more difficult by having to deal with the older children. A former principal of Drew Elementary School testified that Respondent had had difficulty as a disciplinarian, as most teachers did, but that she was more effective in that regard than some of the teachers, except in instances of paddling where she had difficulty and generally produced unsatisfactory results. (Testimony of Respondent, Ford, Jones, Trimmings, Hooks). On or about September 27, 1977, a student threw a cookie box and struck Respondent while she was writing at the blackboard. The next day school security personnel questioned her on whether she had scratched the student in the altercation. She mistakenly assumed that she, rather than the student, was being investigated and became upset when discussing the matter with Morley on the day after the incident. During the course of the conversation, she uttered a vulgar word in his presence. (Testimony of Respondent, Morley, Hooks) Respondent admitted at the hearing that on or about September 28, 1977, she permitted her sixth grade class to go to their art class unsupervised. Although she did not precisely recall the incident, she theorized that it was possible that she had walked them part of the way and then gone to the school office and let them proceed alone the remaining 100 feet to the classroom. (Testimony of Respondent) On October 6, 1977, while Respondent was out of her classroom her students were noisy and disruptive, thus interfering with instruction in an adjoining classroom. Although Respondent did not recall the specific incident at the hearing, she surmised that she had been out of the room for legitimate reasons and normally would have appointed a student monitor to take charge. (Testimony of Green, Respondent.) On January 19, 1978, Respondent was informed by one of her students that the class was supposed to attend a special program in the auditorium. Respondent took the class to the cafeteria where such programs took place and found the door locked. Respondent went to the school office to ascertain whether or not a program was to take place. During this time the children were left unsupervized for several minutes and became noisy and ran in the halls. While Respondent was gone, Morley arrived and restored order. He sent for Respondent and upon her arrival asked her about the matter. Respondent, in a loud voice, said "If you would paddle these children, this wouldn't happen," shaking her finger in front of his face. A number of faculty members were present at the time. (Testimony of Respondent, Morley, Knight, Jones) Teachers are required to prepare weekly lesson plans for each subject. Those on continuing contract, such as the Respondent, are called upon to turn them in to the office several times a year without prior notice. On one occasion during the 1977-78 school year, Respondent failed to turn in her lesson plans on time. Respondent testified that she customarily prepared such plans, but on the occasion in question, had simply been late in preparing them due to the fact that she had given priority to the preparation of report cards. (Testimony of Reich, Respondent) On March 13, 1978, the aunt of one of Respondent's students, Cynthia Blue, asked Respondent if she could see the "progress folder" containing homework papers of her niece. Respondent was in the process of taking the class roll at the time and therefore did not act immediately upon the request. Cynthia's aunt thereupon summoned Morley to the classroom. Morley had told Respondent earlier that day that her class had been quiet during the preceding week when a substitute teacher was present during Respondent's absence. Respondent assumed that the children had been paddled by the substitute to insure their good behavior. Therefore, on March 13, when Morley came to the classroom regarding the question of the child's homework folder, Respondent inquired of the class if they had been paddled during the previous week. They were quiet for a moment, then burst into laughter. Respondent and one of her students testified that Morley joined in the laughter, but he denied the same. In any event, Respondent felt that she was being ridiculed and, having previously received notice that she was to be suspended on March 22, she informed Morley that she was leaving the classroom. In spite of Morley's request that she remain, Respondent departed from the school and did not return thereafter. Although approximately six school days remained prior to the effective date of her suspension of March 22, Respondent made no effort to request administrative leave of absence from School Board officials. (Testimony of Lawrence, Morley, Respondent, Trimmigs) During the period 1971-77, Respondent had satisfactory ratings on her annual evaluation forms for maintaining good discipline except for the 1971-72 school year and the 1976-77 school year, at which times they were 3.0 and 2.0 respectively, out of a maximum rating of 5.0. As found heretofore, Respondent's prior Principal had indicated that Respondent was unable to physically punish students satisfactorily, but that her overall discipline efforts over the years were similar to that of other teachers. The prior Principal was also of the opinion that Respondent was well-trained and could produce results in the classroom. (Testimony of Ford, Petitioner's Composite Exhibit 7, Respondent's Composite Exhibit 1) Respondent attributed her difficulties at the school to the existence of a personality conflict with Principal Morley and her feeling that he had singled her out for adherence to standards that he did not require of other teachers. She had requested a transfer approximately a year ago, but it was denied. Morley denied any special treatment of Respondent and the evidence fails to reveal actions on his part that were not precipitated initially by Respondent. (Testimony of Respondent, Morley)
Recommendation It is recommended that Respondent be reinstated without payment of back salary for the period of her suspension and that she be transferred to an appropriate instructional position in another school within the Dade County School System. It is further recommended that Respondent be issued a letter of reprimand by the School Board of Dade County for the established derelictions set forth in the foregoing conclusions of law and that she be admonished therein concerning a repetition of such conduct. DONE and ENTERED this 26th day of October, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael R. Friend, Esquire 44 West Flagler Street, Penthouse Miami, Florida 33130 Elizabeth du Fresne, Esquire 1782 One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Phyllis O. Douglas Assistant School Board Attorney Lindsey Hopkins Building 1210 Northeast 2nd Avenue Miami, Florida 33132 =================================================================
Findings Of Fact Petitioner, Rafael A. Duharte, is a native of Cuba who moved to this country some sixteen years ago. He has lived in Miami since 1972. In 1976, Duharte obtained a bachelor's degree in Spanish from Biscayne College, and approximately eighteen months later received a master's degree in special education from the same institution. He is certified as a teacher by the State Department of Education. In October, 1977 Duharte began teaching at Montanari Residential Treatment Center (Montanari) in Miami, Florida, a school which specializes in teaching mentally retarded students. He continued to work there until February, 1984. In 1978, he filed an application with petitioner, School Board of Dade County, seeking a teaching position in the Dade County School System. He filed additional applications in 1980 and 1985. On all applications he acknowledged his employment at Montanari. Duharte also made inquiry as to openings with the Department of Instructional Staffing (Department) at least once a year after 1978. On two of those visits (June, 1984 and April, 1985), he met briefly and informally with a Department coordinator. The Department interviews all teaching applicants and makes recommendations as to whether a candidate should be hired. In February, 1984 Duharte was verbally informed by a school official that he was dismissed from employment with Montanari. He received nothing in writing memorializing this action but rather was told that he was being dismissed because of complaints from students. However, he did receive a letter of recommendation from Montanari which is now in petitioner's personnel files. In February, 1984 Duharte made application for and was accepted as a substitute teacher with petitioner. As a general rule, no background check is run on a substitute's application, and consequently no inquiry was made with Montanari, Duharte's former employer. Duharte began teaching as a substitute teacher in March, 1984 and continued doing so for the remainder of the school year as well as the entire school year 1984-85. On September 26, 1985 Duharte filed his third application with petitioner for employment as a full-time teacher. On the application was the following question: "Have you ever been removed or dismissed from any position?" Duharte checked off the answer "No". As a prerequisite to employment, Duharte was interviewed by a Department coordinator. However, he was asked nothing specific concerning the circumstances under which he left Montanari. Under petitioner's then existing policy, a background check was normally made of full-time applicants. In this case, the coordinator merely talked to Duharte's assistant principal at the school where he was a substitute. After no adverse information was disclosed, Duharte was hired to teach at Citrus Grove Junior High School. Several months later, the coordinator had an occasion to call Montanari concerning a different applicant, and learned that Duharte had been dismissed. This was confirmed by Duharte at a conference for the record, a meeting required by the teacher's union contract prior to the commencement of formal disciplinary action against teachers. At that meeting, Duharte stated he did not answer "yes" to the question because he knew he would not be hired if he gave a truthful answer. Duharte was then suspended by petitioner effective March 5, 1986. He has remained suspended without pay since that time. His suspension precipitated the instant proceeding. At final hearing, Duharte confirmed he had been orally dismissed from Montanari but was never given anything in writing concerning his dismissal. Therefore, he contended that to answer "yes" to the question would be acknowledging that Montanari had a valid reason for terminating him. He expressed a sincere desire to be employed and stated that he had nothing to hide. Indeed, he pointed out that during one of his informal meetings with Department personnel in April, 1985 he disclosed to a coordinator that he had been dismissed from Montanari. This was confirmed by a coordinator who testified at final hearing. However, the coordinator did not learn that Duharte was hired by the School Board until "months later". Duharte also indicated that had he been asked by the coordinator at the September, 1985 interview, he would have disclosed his dismissal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be dismissed from employment with petitioner. All other charges should be dismissed. Respondent should be permitted to refile an application for employment setting forth the circumstances under which he was terminated from his prior employment. A decision can then be made based upon the merits of the application. DONE and ORDERED this 21st day of November, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of November, 1986.
