The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Respondent has been employed by the School Board as a teacher since 1990. For the 2009-2010 school year, Respondent was employed pursuant to a professional services contract as a kindergarten teacher at Rogers Garden Elementary School (Rogers Garden). She was transferred to Rogers Garden from Wakeland Elementary, where she had taught a pre-kindergarten class during the previous school year. The precipitating cause for the Administrative Complaint against Respondent was that during the 2009-2010 school year, out of the 190 school days when Respondent was expected to be at work, she was absent for at least 95 days.3 The School Board's policy on employee attendance, set forth in Policy 6.2 of the School Board's promulgated Policies and Procedures Manual, has as its basic premise that employees are expected to be present and working at the job site at all times. If an employee is going to be absent from work, authorization is required in the form of sick leave or other approved absence. In general, an employee such as Respondent, accrues ten sick-leave days per ten-month school year. If not used, accrued sick leave accumulates from year to year. "Personal" leave sought for personal reasons, instead of medical reasons, may be requested, and, if allowed, comes out of accrued sick leave. Once an employee runs out of accrued sick leave, the options are either to borrow sick leave from the "sick leave bank," if the employee is eligible, or to request unpaid leave, which may be allowed if the reason is substantiated.4 Under School Board Policy 6.2(2)(b)(2), if an employee is absent even one day without having obtained authorization, the employee is subject to termination. Under the same policy, even if authorization is obtained for an employee's individual absences, those absences can mount to the point that they become "excessive." By the School Board's policy, excessive absenteeism, even though authorized, subjects an employee to termination because of the adverse impact on the school, the students, and the other employees. The School Board policies do not adopt any bright-line test quantifying what constitutes "excessive" absenteeism. Instead, the circumstances are considered in each case. As the Superintendent credibly explained, a uniform standard quantifying excessive absenteeism for all School Board employees would not make sense, because the impact varies depending on the position the employee holds. A school district bears a greater adverse impact from absences by a classroom teacher than from absences by most other types of employees. The classroom teacher's ongoing presence is critical to carrying out the school district's educational mission because of the relationships the teacher builds with his or her students. The adverse impact from teacher absences is probably greatest for a kindergarten teacher, because kindergarten students are most vulnerable to harm from disruption in the classroom routine and teacher changeover. The Superintendent explained the factors he considers when assessing a complaint of excessive absenteeism. He would consider whether the employee's absences exceed average absences for other employees. He would review the employee's overall record, including indicators of performance issues or disciplinary matters. He would consider mitigating circumstances, such as the reasons for the absences. All of these factors would be judged in the context of what position the employee was holding when the absences occurred, so as to consider what adverse impacts were imposed on the school system. Wendy Mungillo, principal of Rogers Garden for the 2009-2010 school year, became concerned about Respondent's attendance by January 2010. The issue was brought to her attention by other teachers who were part of the kindergarten team, because the others were having to pick up the slack. Lesson plans for Respondent's kindergarten class were not always completed to the extent that a substitute could carry them out. Substitutes could not always be arranged quickly enough, so coverage for Respondent's absences had to be provided through the team. By January 15, 2010, Respondent had called in sick on 15 work days, necessitating arrangements for multiple substitutes. No medical documentation was requested for the sick leave up to this point, because the Rogers Garden principal was trying to give Respondent the benefit of the doubt, as is her common practice. Meanwhile, during this first half of the school year, Ms. Mungillo was attempting to evaluate concerns about Respondent's performance in the classroom. The principal had issued a Notice of Return to Documentation Program to Respondent on September 21, 2009, identifying numerous areas of concern. A Notice of Return to Documentation Program is issued when a principal has concerns about a teacher's performance in the classroom. The notice triggers a process of formal observations in which the principal schedules dates to attend class to observe and evaluate the teacher while teaching in the classroom. For each classroom observation, the principal prepares specific evaluation and feedback, in writing, and then conducts and records a post-observation conference with the teacher. After Respondent was placed on the documentation process, Ms. Mungillo was able to schedule and carry out only one 30-minute in-classroom observation on November 19, 2009, for which a post-observation conference was conducted on December 17, 2009. A follow-up observation was supposed to take place on January 15, 2010, according to Ms. Mungillo's notes on Respondent's attendance, but Respondent called in sick that day. The next time the principal attempted to schedule an observation, she described what happened in a written complaint, as follows: On Tuesday, February 9th, I met with Ms. Rainville to discuss several discipline referrals she had written that were inappropriate. I discussed with her that I felt like she needed help in her classroom with classroom management. At that time I also set up an observation with her for Friday, February 12th. I told her I wanted to see her teaching math. When I asked her when her math time was, she could not tell me[,] only that it was after lunch. Later that day she wrote me an email that stated the following: "Wendy, I just realized that the day we picked is the school Valentine's Day. I also have company coming from Brazil today. I would rather schedule this next week, please, Brook " Ms. Mungillo responded to Ms. Rainville's request to cancel and reschedule the classroom observation by stating that she was "not willing to change the date." Ms. Mungillo noted that there was no school-wide Valentine's Day activity planned and asked what Respondent's company from Brazil had to do with her teaching duties. Respondent did not directly respond; instead, she called in sick for February 10, 11, and 12, 2010. In effect, she unilaterally cancelled the scheduled observation after she was unsuccessful convincing Ms. Mungillo to reschedule it. Respondent also missed, with virtually no notice, an important exceptional student education (ESE) staffing meeting, which had been scheduled for February 10, 2010. Respondent was supposed to meet with persons from the ESE department and with the parents of one of Respondent's students to address ESE services for the student or problems the child was having. Attendance of all participants at these meetings is very important, not only because of the need to timely address the subject of the meeting, but, also, because it is a challenge to coordinate the scheduling of these meetings. Respondent offered no explanation for her absences on February 10, 11, and 12, 2010, either then or at the final hearing. The implication is that she was not at work, because she wanted to spend time with her company from Brazil, while avoiding her classroom observation. Incidentally, her absence caused, at a minimum, disruption to the ESE program, delay in addressing the needs of one of her students, and inconvenience to the parents and others involved in scheduling the meeting. Respondent's absence on February 12, 2010, was of particular concern to Ms. Mungillo. Ms. Mungillo saw a pattern to Respondent's absences, which were timed to avoid scrutiny of Respondent's classroom performance. Ms. Mungillo reasonably became concerned that this pattern was more than just a coincidence. Ms. Mungillo was aware that Respondent had been returned to the documentation process at Wakeland Elementary in the prior school year. At a conference in April 2009, the principal at Wakeland Elementary gave Ms. Rainville a Notice of Return to Documentation Program, identified the areas of concern with Ms. Rainville's classroom performance and outlined expectations. A memorandum summarizing that conference noted that a formal observation would not take place yet, but that a meeting would be held on May 22, 2009, to review Ms. Rainville's progress. However, on the morning of May 22, 2009, before the progress-review meeting could take place, Respondent had a fall in her classroom. As she explained it, she fell forward over the back end of a rocking chair and hurt her head and her right knee (where she had had knee replacement surgery less than a year earlier). Respondent filed a workers' compensation claim and did not return to work for the remainder of that school year. Because of budget cuts, Respondent's position at Wakeland Elementary was eliminated, and she transferred to Rogers Garden for the beginning of the 2009-2010 school year. Since Respondent never went back to the classroom at the end of the 2008-2009 school year, the Wakeland Elementary principal was never able to evaluate Respondent's classroom performance. There is no performance evaluation in evidence for Respondent for the 2008-2009 school year. Ms. Mungillo attempted to continue the documentation process started at Wakeland Elementary, but as noted, was only able to conduct one 30-minute classroom observation; the next two times Ms. Mungillo tried to schedule another classroom observation, Ms. Rainville called in sick. As it turned out, February 9, 2010--the day Respondent asked to cancel the scheduled February 12, 2010, classroom observation because of Valentine's Day and company from Brazil-- ended up being Respondent's last day at work to teach her kindergarten class in the 2009-2010 school year. So just like in the prior school year at Wakeland Elementary, Respondent's absences interrupted the Rogers Garden principal's ongoing effort to evaluate Respondent's classroom performance. Just as for 2008-2009, no performance evaluation is in evidence for Respondent for the 2009-2010 school year. On Friday afternoon, February 12, 2010, Ms. Rainville contacted the claims adjuster from her 2009 workers' compensation claim. She told him she wanted to re-open her claim for re-treatment because her right knee was hurting. Following a holiday, on February 16, 2010, Ms. Rainville was authorized to have her knee checked. She saw a physician who referred her to an orthopedic specialist and imposed interim work restrictions that would have allowed Respondent to return to work only if she could stay seated there. This was not reasonably possible for a kindergarten teacher, so beginning on February 16, 2010, Respondent was authorized to take workers' compensation leave. On February 25, 2010, Respondent went to the orthopedic specialist to whom she was referred, Dr. Shapiro. He examined Respondent and determined that she had no work-related injury. He also determined that Respondent was able to return to work without any restrictions, despite her knee issue. Dr. Shapiro conveyed the following work instructions for Respondent to the School Board's Risk Management Department: "No Restrictions/full duty work release to job position held prior to this injury." Dr. Shapiro also reported that Respondent has "[a]chieved Maximum Medical Improvement (MMI)" and that Respondent was "[a]ble to return back to work on Monday [March 1, 2010]." Respondent refused to acknowledge these instructions, because she disagreed with the doctor. Despite being medically cleared to return to work, Respondent called in sick on Monday, March 1, 2010, and again on Tuesday, March 2, 2010. Ms. Mungillo called Respondent on Tuesday morning to advise that medical documentation would be required for her absences that week. Ms. Mungillo also told Respondent that she had to know Respondent's intentions for her employment for the rest of the year; if Respondent was going to remain absent, Ms. Mungillo could arrange for a permanent substitute, instead of the multiple substitutes they had been scrambling to arrange on an ad hoc basis each time Ms. Rainville called in sick. On March 2, 2010, Ms. Mungillo submitted her concerns about Respondent's absences, along with Respondent's attendance records thus far that school year, to Debra Horne in the Manatee County School District's Office of Professional Standards (OPS). The OPS is the office that investigates matters of concern involving employees, if the matters could lead to suspension without pay or termination of employment. The OPS initiated an investigation that same day. Respondent's attendance records submitted by Ms. Mungillo to the OPS showed that through March 2, 2010, Respondent had been absent from work on 29 days when she was expected to be at work; on 28 of those days, she should have been teaching her kindergarten class. Instead, 11 different substitute teachers covered Respondent's kindergarten class. When substitutes could not be found quickly enough, other teachers had to provide coverage in addition to their own teaching responsibilities. In an effort to obtain the medical documentation required by Ms. Mungillo for the week of March 1, 2010, on March 4, 2010, Ms. Rainville went to see Dr. Alan Valadie, who had performed knee replacement surgery on Ms. Rainville's right knee in June 2008. He diagnosed "patellar clunk syndrome," which he described in his testimony as development of scar tissue that can occur in patients who had knee replacement surgery. This scar tissue catches at a point in the range of knee motion and can cause a clicking sound, with or without pain, at that point in the range of motion. The treatment for patellar clunk syndrome is more knee surgery to remove the scar tissue. Dr. Valadie concluded that Ms. Rainville should get the follow-up knee surgery. He filled out a Family Medical Leave Act (FMLA) application form for Ms. Rainville so that she could apply for leave from work in order to have the knee surgery and allow time for post-surgical recovery. On the FMLA application form completed by Dr. Valadie, he responded "no" to the question asking whether the employee is unable to perform any of her job functions due to the condition. However, he indicated that after surgery, she would need a recovery period when she would not be able to work. Dr. Valadie did not indicate on the FMLA application form whether the knee surgery he thought Ms. Rainville needed had already taken place or was scheduled for some future date. However, he specified that Ms. Rainville would require leave from work beginning on March 1, 2010. No ending date was provided despite the form calling for both a beginning and ending date for the requested leave. In total, the application was incomplete and confusing. If Ms. Rainville's pre-surgery knee condition did not render her unable to perform any of her job functions, then the only possible reconciliation of the responses was that she had had her surgery on March 1, 2010, but the form did not indicate that was the case. Separate from the FMLA form, Dr. Valadie also filled out a "Work/School Status Note," known as a "doctor's note," indicating that he had seen Ms. Rainville on March 4, 2010, and instructing as follows: "Patient is to be off work starting 3-1-2010 until furthur [sic] notice." As confirmed by Dr. Valadie's deposition testimony, both the FMLA form and the doctor's note were misleading. Dr. Valadie made clear that he thought he was filling out both the FMLA form and the doctor's note so that Ms. Rainville could arrange for leave in order to have the knee surgery and to have a period of time off from work after surgery for recovery. But Ms. Rainville did not have her knee surgery until July 9, 2010. Neither Dr. Valadie, nor any other physician, offered any medical justification for Dr. Valadie's statements in the FMLA application and the doctor's note that Ms. Rainville needed to be excused from work beginning on March 1, 2010. Instead, the only evidence in the record related to Ms. Rainville's medical status on March 1, 2010, was that Ms. Rainville was fully cleared medically to return to work. Dr. Valadie did not even see Ms. Rainville so as to diagnose the condition he said needed surgery until March 4, 2010. When he saw Ms. Rainville then, his medical judgment (like that of Dr. Shapiro) was that her knee condition did not interfere with her performing any of her job functions, as he indicated on the FMLA application. When Ms. Rainville submitted the FMLA application form filled out by Dr. Valadie, the school district staff handling those applications began calling Ms. Rainville for additional information, because the form was incomplete and seemingly inconsistent. Most significant to an FMLA request, the application lacked an end date, and it also lacked specific information on when the surgery had been done or was scheduled, so as to justify the beginning date. The staff attempted to get this information from Dr. Valadie, through Ms. Rainville. After several weeks, Ms. Rainville informed staff that Dr. Valadie had said the "end date" should be May 28, 2010, which coincides with the maximum 12-week leave allowed under the FMLA for this kind of request. Dr. Valadie was supposed to submit written confirmation of the medically necessary end date, but there is no such written confirmation in the record, and it appears that none was ever submitted. Ms. Rainville never responded to the staff's telephone requests for information regarding the surgery that was the basis for the leave request, such as whether it had occurred yet, and, if so, when. After these unsuccessful efforts to obtain complete information through telephone calls with Respondent, on May 5, 2010, Respondent was given written notice of the continued deficiencies in the FMLA application and documentation with one final chance to provide the missing information. When no revised application or additional information was received, on May 17, 2010, the FMLA request was finally denied. After Respondent conveyed an "end date" for her leave request, which she said she obtained in a phone conversation with Dr. Valadie, even though no written confirmation had been received yet from Dr. Valadie, on March 11, 2010, Ms. Mungillo signed an authorization for Respondent to take a regular (non-FMLA) unpaid leave of absence from school from March 1, 2010, until May 28, 2010. This allowed Ms. Mungillo to hire a permanent substitute for Respondent's kindergarten class. Ms. Mungillo authorized this leave because of the apparent medical necessity indicated by Dr. Valadie, even though the explanation remained confusing and inconsistent. Ms. Mungillo learned for the first time at the final hearing that Ms. Rainville did not have knee surgery until July 9, 2010, and that as of the final hearing date (approximately one month into the 2010-2011 school year), Ms. Rainville claimed she had not yet recovered to the point of being able to return to work. Ms. Mungillo testified credibly and without hesitation that she would not have approved Ms. Rainville's leave of absence from March 1, 2010, if she knew that Dr. Valadie did not think any leave of absence from work was medically necessary until the knee surgery was actually performed, which was not until July 9, 2010. Since the authorization for Ms. Rainville's leave of absence was obtained through misleading statements, that leave of absence should be considered unauthorized. At the very least, the leave of absence for the period of March 1, 2010, through May 28, 2010, was insufficiently documented with evidence of medical necessity for the entire period of time.5 Finally, to complete the school year, Pat Barber, Ms. Rainville's union representative, submitted another sick leave request for Ms. Rainville from June 1, 2010, through June 10, 2010, the last day of school. Ms. Mungillo gave her conditional approval, subject to receipt of a doctor's certification within five days. Ms. Barber submitted a prescription for Ms. Rainville apparently signed by Daniel Small, M.D., of the Sarasota Arthritis Center, stating as follows: "Off work 5/28/10?6/10/2010 due to continuing health problems. She is unable to perform her duties as a teacher at this time." No medical documentation or additional information was provided, such as when Ms. Rainville saw Dr. Small, what "health problems" were referred to, or how they interfered with Ms. Rainville's duties as a teacher. While Ms. Rainville's testimony at final hearing seemed to indicate that she was suffering from knee pain, she did not explain why she went to a different doctor, instead of the doctor whose care she was under for her knee condition and who ultimately performed the surgery. Upon the conclusion of the OPS investigation into Respondent's absenteeism, the results were presented to a panel comprised of persons within Respondent's chain of command, and the panel unanimously recommended to the Superintendent that Respondent's employment be terminated for violating the School Board policy against excessive absenteeism. Though not bound by the panel's recommendation, the Superintendent concurred and recommended that Respondent be terminated from employment. The Superintendent reasonably considered Respondent's overall record. While Respondent had favorable evaluations and professional development plans up through May 2008, the Superintendent took note of the performance concerns over the last two school years. He reasonably considered the mid-stream performance evaluations that were being attempted under the Return to Documentation process at both Wakeland Elementary and Rogers Garden, both of which were thwarted by Respondent's absences for the remainder of each school year. The Superintendent also took note of two written disciplinary reprimands issued to Respondent, one in December 2008 at Wakeland Elementary and the next in January 2010 at Rogers Garden. The Superintendent also reasonably considered Respondent's history of absenteeism as far back as records were available, beginning in the 1993-1994 school year after Respondent had been teaching for three years. Many of these years reflect substantially more than the amount of paid leave time Respondent could have been entitled to, even if she had taken no paid leave whatsoever during her first three years of employment. For example, in school year 1999-2000, Respondent used more than twice the number of sick leave days than she accrued that year. She did not have sufficient sick leave days accrued from prior years, because she was docked for two days' pay. Again in the very next year, Respondent took more days off than she was entitled to and was docked for another four days of pay. This pattern continued with Respondent's pay docked for excess absences beyond authorized paid leave in 2001-2002, 2003-2004, 2006-2007, and every year since then. The magnitude of Respondent's absences in prior years pales in comparison to the 2009-2010 school year. Indeed, the testimony of several witnesses with many years of experience handling these types of matters, including Superintendent McGonegal, was that Respondent's absences greatly exceeded most anything they had ever seen before. The absences were described as "at the top" in terms of excessiveness. Respondent attempted to establish that she was being singled out for harsher treatment than others who had also been absent a lot. However, no credible evidence was presented of any incidents of absenteeism that were sufficiently similar to Respondent's to be considered comparable. That the School Board may have taken no disciplinary action against employees who took more than ten days of sick leave in a single school year, fails to establish any inequity in the proposed treatment of Respondent here. Respondent's 2009-2010 absences are of a magnitude that is nearly ten-fold more than the attempted comparison. The fact remains that Respondent's 2009-2010 absences, even if all authorized legitimately (as was found not to be the case), easily meet or exceed any reasonable definition of excessive. No similar case was shown to exist. The Superintendent also reasonably considered the progressive discipline approach apparently incorporated into the Collective Bargaining Agreement (CBA) between the School Board and MEA. The Superintendent explained that the progressive discipline policy, while preferred, is not required as a lock-step approach in every case. If the idea of progressive discipline is to allow an employee to conform their conduct before receiving harsher consequences, that would not have worked here, since most of Respondent's absences were supposedly due to legitimate medical issues. If Respondent was truly unable to come to work, warning her that she may be terminated if she continued to be absent, would not change her inability to come to work. In addition, Respondent made it impossible to address concerns about her mounting absences in performance evaluations because Respondent kept calling in sick when her performance evaluations were scheduled. Finally, the Superintendent reasonably considered and rejected the lesser disciplinary step of suspension without pay, because Respondent had already chosen to be absent without pay. Under these circumstances, the Superintendent reasonably determined that he had the discretion to proceed to termination within the parameters of the progressive discipline policy. No evidence was presented to establish any different requirement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Manatee County School Board, enter a Final Order terminating Respondent, Brook Rainville's, employment. DONE AND ENTERED this 28th day of October, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 28th day of October, 2010.
Findings Of Fact The 1978-79 school year is respondent's sixth year as a music teacher in petitioner's employ. She attained continuing contract status in 1975-76. Since she has worked for petitioner, she has divided her time between two elementary schools. Joseph Charles Galocy, S. Edward Williams, Jr., and Albertha C. Arrington, all principals under whom respondent has worked, have found her attendance and her performance as a whole satisfactory. In the fall of 1978, she was assigned to Nathan Young and, for the first time, to Primary C. When she reported to Nathan Young at the beginning of the 1978 fall term, she spoke to Albertha C. Arrington, principal of Nathan Young, about her schedule for the upcoming school year. Ms. Arrington telephoned Dr. Charlie Williams, principal of Primary C, to discuss respondent's schedule. In the course of this telephone conversation, Dr. Williams "had a temper tantrum," yelled at Ms. Arrington and called her stupid. Ms. Arrington hung up but tried again another day; on her third attempt, Dr. Williams said something to the effect that he did not care what respondent's schedule was. Ms. Arrington then decided that respondent should teach Mondays, Wednesdays and Fridays at Nathan Young and Tuesdays and Thursdays at Primary C. On her way to school on Tuesday, August 29, 1978, respondent had car trouble. She called Primary C and told a secretary, Mrs. Moss, that she was stranded and would not be in. The following Tuesday, September 5, 1978, respondent called Primary C and told another secretary, Mrs. Olliff, that she was staying out because of illness. She had severe stomach pains that day and went to see a physician for advice. On September 26, 1978, respondent was unable to keep food down and again visited a physician's office instead of meeting her classes. Respondent was absent from Primary C on Thursday, September 20, 1978, and on the following Thursday, October 3, 1978. On both days she was ill and asked her physician to prescribe medication. From the beginning of the school year through October 3, 1978, respondent missed only one day's work at Nathan Young. In the opinion of Dr. Charles C. James, respondent's absences from Primary C, in the fall of 1978, were medically necessary. While she was working at Primary C, respondent felt harassed by Dr. Williams, the principal. He told her that the piano was too loud; that she should use the record player instead. When she used the record player, he told her to use the piano. He followed her down the hall. Respondent was tense and anxious; and became upset that she was not allowed to teach the way she had taught the five preceding years. Dr. Williams was in and out of her classroom, interrupting her in mid-sentence and in mid-song. He ordered her out of classes she was conducting, leaving classes unattended. On October 4, 1978, respondent went to see Dr. Dulin, an administrator who has charge of music instruction for petitioner. She complained to Dr. Dulin that Dr. Charlie Williams had caused such disruption of her classes and made working conditions at Primary C so unpleasant that she became physically ill at the prospect of reporting for work there, and she asked for a transfer. Dr. Dulin introduced respondent to Dr. Everett D. Abney, employed by petitioner as superintendent of the area in which Primary C is located. Respondent explained her position to the area superintendent, who told her he would look into the matter, but that she should continue reporting to Primary C in the interim. The following day, a Thursday, respondent appeared for work at Primary C. While she was teaching her first class, Dr. Williams walked into the classroom and told her to cancel her classes for the day so that she could write lesson plans. On October 10, 1978, the following Tuesday, Dr. Williams interrupted respondent's first class and asked her to come talk to him about lesson plans. He told respondent be wanted very little singing; that the children should instead be taught how to read notes and to appreciate the works of the masters. Respondent undertook to implement these instructions by playing Bach for her pupils and by playing tones which she asked the children to characterize as short or long. On Thursday, October 12, 1978, Dr. Williams interrupted respondent's classes on three separate occasions, once to tell her he did not like the song she was singing, another time to direct her to use different songs for different classes. The next Tuesday, October 17, 1978, respondent had stomach pains, diarrhea and spastic colitis; and she was throwing up. She telephoned Primary C to say she was not coming in and also called Dr. Abney's office. On Tuesday, October 24, 1978, and again on Thursday, October 26, 1978, respondent was ill, and telephoned Primary C to report that she was not coming in. On October 26, 1978, after she had called in sick, Dr. Williams called respondent and told her not to come back to Primary C. On November 2, 1978, respondent conferred with Eldridge Williams, an administrator in petitioner's employ, about her work situation. She did not meet her classes that day. At the conclusion of their conversation, Eldridge Williams told her he would be in touch with her. Since he had not communicated with her by November 9, 1978, respondent telephoned him. She understood him to tell her not to report to Primary C, so she began putting in extra time at Nathan Young. Respondent is not the only teacher who found working under Charlie Williams, the principal at Primary C, difficult. Ms. Jessie Sandilands, an elementary school teacher for 22 years, sought and obtained a transfer from Primary C, after repeated confrontations with Charlie Williams. Ms. Elizabeth Wallace, an elementary school teacher, found working under Charlie Williams' principalship "unbearable" and obtained a transfer to another school on December 12, 1978. During the fall of 1978, the policy at Primary C concerning teachers' absences on account of illness or for other unforeseen reasons required the teacher to telephone a secretary at the school to report the illness or other cause for the impending absence. Every time respondent was absent from Primary C before November 2, 1978, she complied with this policy by telephoning either the night before or early on the day of the absence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reinstate respondent and pay her the wages she would have earned if she had not been suspended. DONE and ENTERED this 30th day of May, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building Suite 300-E 3050 Biscayne Boulevard Miami, Florida 33137 Elizabeth J. du Fresne, Esquire 1782 One Biscayne Tower 21 South Biscayne Boulevard Miami, Florida 33131
Findings Of Fact The Respondent, Robert David Ferris, holds Teacher's Certificate No. 172775 issued by the State of Florida, Department of Education, on May 11, 1977. This certificate covers the areas of elementary education, administration/supervision, and junior college. In 1983 the Respondent was employed as an elementary school teacher, and taught at Jefferson Davis Middle School in Palm Beach County until his termination which was effective on September 19, 1983. Some time between June 1 and September 16, 1983, the Respondent unlawfully killed his wife, Kathleen Ferris, by strangulation. The Respondent was charged with first degree murder, and was convicted of this crime by the Circuit Court in Palm Beach County, Florida. He was sentenced to life imprisonment. This conviction is presently being appealed. The Respondent was also charged with the murder of his son, George Ferris, but this charge was dismissed subsequent to the Respondent's conviction for murder of his wife. There was extensive news coverage of the arrest of the Respondent, of the Respondent's trial, and of his eventual conviction on the charge of murder. These events appeared in the newspaper and on the television continuously. During the investigation stage, police officers were in the Jefferson Davis Middle School constantly, making inquiries of both students and teachers about the Respondent. As a result, the students were adversely affected, and the morale of the teachers was low. The nature of the Respondent's act of killing his wife, together with the awareness of the incident on the part of the students, parents, staff and the community due to the notoriety it received, so impaired the Respondent's effectiveness as a teacher and employee of the school board, that the Respondent could not be re-employed in any capacity in the Palm Beach County public schools.
Recommendation Based on he foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 172775 held by the Respondent' Robert David Ferris. THIS RECOMMENDED ORDER ENTERED this 26th day of June, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1987. COPIES FURNISHED: Charles T. Whitelock, Esquire 1311 S.E. Second Avenue Ft. Lauderdale, Florida 33301 Robert David Ferris DOC 103324 Baker Correctional Institution P. O. Box 500 Olustee, Florida 32072 Honorable Betty Castor Commissioner of Education. The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practice Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, (Board), was responsible for operating the public schools in Pinellas County, Florida. Respondent, Susan E. Brown, was employed as a plant operator at the 16th Street Middle School in St. Petersburg, a school operated by the Board. She had a son enrolled in Lynch Elementary School, operated by the Board. On or about November 9, 1995, Respondent's son, V.B., was sent home at the end of the regular school day with a referral slip, signed by Ms. Proper, the principal, which reflected that the child had used inappropriate language to a female student in the class that day. The language was, "Suck my dick." The alleged incident was discussed in a class meeting and the matter was referred to the principal as the result of a recommendation by the class. The referral slip was not enclosed in an envelope. The child's teacher had had prior conferences with Respondent regarding her child's academics and behavior. Mrs. Brown was very much upset by this referral, not only from the standpoint that such language was attributed to her son, but also because the referral slip was not enclosed in an envelope. As a result, early the next day, November 10, 1995, she arrived in the office at Lynch Elementary where she was met by Ms. Lemos, the data preparation clerk, at the front counter. Respondent loudly demanded to speak with the principal. When informed by Ms. Lemos that the principal was in an awards ceremony at the time but would be back shortly and would see her upon her return, Respondent nonetheless insisted on seeing the principal immediately. She also demanded to speak with the teacher involved. She was upset about the referral slip a teacher has written regarding her son. When informed that the offending teacher was in class and could not be interrupted at the time, Respondent said, "I'll interrupt her," and left the office, heading for the classroom. Ms. Lemos immediately used the intercom system to forewarn the teacher and also immediately called the intervention specialist. Ms. Robinson, the teacher in question, heard Ms. Lemos' warning over the intercom system and within a few seconds, Respondent burst into the classroom, waived a sheet of paper, later determined to be the offending referral sheet, in her face and said, "I don't want this shit again", along with other obscene words including the word, "fucking." Ms. Robinson asked Respondent to leave the classroom, but she refused. Respondent asked for "that ass-hole, Jonathan." Jonathan is another child in the class who, Respondent believed, is the one who made the offensive comment attributed to her son. Respondent's actions were upsetting the children. Some were screaming and others were crying. Ms. Robinson claims that even Respondent's son called for her to stop, but she did not. Respondent stated to the teacher, "If I have to come back, I'll kick someone's ass." Ms. Robinson continued to try to get the Respondent to leave the room and managed to get herself and Respondent out of the room and into the hall. At this point, Ms. Robinson tried to go back into the classroom and close the door with Respondent out in the hall, but Respondent forestalled this, slapping Ms. Robinson's hands away from the door. At one point in the altercation, apparently in the classroom or nearby but in sight of some of the children, Respondent pushed Ms. Robinson away from the door, using both hands to the teacher's upper arms or torso. As a result of the Respondent's actions, Ms. Robinson was emotionally and mentally affected. She was afraid for her life at the time of the incident because the Respondent appeared very angry and was physical with her. The teacher's professional and family life has been affected by this assault. She was afraid to go back into the classroom and missed several days work because of it. She did not seek psychological counselling or a physician and she has now returned to the classroom, but this incident has affected her teaching and she still has trouble sleeping at times. Based on what happened, Ms. Robinson would not want to work in the same school with the Respondent. The altercation involving the Respondent and Ms. Robinson was heard by another third grade teacher, Ms. McLaughlin, who had come to the third grade pod of four classrooms to get another student. As she walked toward the pod she heard someone using profanity, including the words, "Shit. How dare you write this?" After going into her own classroom to get the student she wanted, Ms. McLaughlin came out to see Ms. Robinson pinned with her back to the open door facing away from the classroom, and a parent, identified as the Respondent, up close to her face. She saw Respondent, who was very loud, push Ms. Robinson with both hands Ms. McLaughlin did not hear Ms. Robinson say anything but noted she was trying to close the classroom door. As Ms. McLaughlin watched, the intervention specialist, Ms. Mills came up and took control. Ms. Mills went to the room as a result of the request by Ms. Lemos. As she approached the pod, she heard loud yelling and saw Ms. Robinson with her back to the door and Respondent yelling at her, facing her. Ms. Mills yelled at the Respondent directing her to return to the office. At this point, Respondent turned toward her and yelled that some "shit had been written on [her] baby's paper." She wanted to talk with the principal and, according to Ms. Mills, threatened to "mess them all up." As the two women were walking toward the office, Respondent also allegedly called the staff "fucking crackers", and when advised by Ms. Mills to keep her voice down because children were present, said she didn't care. Ms. Mills claims some children were present as they went toward the office. As Ms. Mills and Respondent arrived at the school office the Respondent was still yelling. Ms. Mills directed her to leave the campus but she refused and continued to demand to see the principal. At this point, Ms. Mills advised the office staff to call the police. Upon the arrival of the principal, Ms. Mills left the office and returned to the classroom where she found the children frightened and upset. When the principal, Ms. Proper, arrived at the front office she told the Respondent to go into her private office because she was yelling so loud. Ms. Proper could hear Respondent from down the hall. When Proper got the Respondent into her office, she asked what was wrong and in response, Respondent waived the referral slip. Ms. Proper took it and looked at it and this had the effect of calming the Respondent down somewhat. However, when Ms. Proper explained why the referral had been written, Respondent exploded again and Ms. Proper told her to leave the campus. Before she could do so, the police arrived. According to Ms. Proper, Respondent's actions upset the awards ceremony, a teacher was made upset and required a substitute, the office staff was upset, and she had to spend several hours with the police. In addition, at least one parent has called the school and expressed concern about the incident. This was the parent to whose daughter the obscene comment was allegedly made by V.B., Respondent's son. At the time of the incident neither Ms. Proper nor anyone else involved knew that the Respondent worked for the school system. Respondent did not identify herself as a school employee nor was she wearing any kind of uniform which identified her as a Board employee. All of the children who testified at the hearing, whether for the Board or for the Respondent, indicated they had, to some degree or another seen and heard the incident. There is no doubt that Respondent physically battered Ms. Robinson at the doorway to the classroom. Whether she intended to injure her is doubtful, however. Respondent clearly used profanity in front of the children, but it is equally clear she did not address the profanity toward them. By the same token, it does not appear that Respondent threatened the children in any way. Though she denies having done so, it is found she did refer to one child, Jonathan, as an ass-hole, but she did not direct that comment to him directly. Respondent has worked as a plant operator, (janitor), for the school system for four years, starting at the 16th Street Middle School only shortly before the incident in issue. Her hours are from four in the afternoon to midnight. She has one child, V.B., who attended Lynch Elementary at the time in issue. Respondent recalls that on November 9, 1995, V.B. came home from school with a referral which was not in an envelope nor was it folded over. When she saw it she was upset over the way it was written. She felt that her son's alleged language could have been more discreetly put and she also felt the slip should have been put in an envelope for transmittal. The referral did not require her to come to school, but she went anyway to see why the slip had been written and transmitted as it was. She also wanted to know why she wasn't called about it. Consequently, on the morning of November 11, 1995 she went to the school office and spoke with the lady at the front desk. Respondent admits to using the word "shit" to describe the referral but denies she cursed anyone in the office. When she asked to speak with the principal she was told that she was in a ceremony and to come back later. Nonetheless, Respondent insisted on speaking with the principal but cannot recall what she said next. She remembers having the impression that the office staff did not want to see the referral, so she decided to go to her son's classroom to speak with the teacher about it. Respondent claims the office staff did not tell her not to go to the classroom. When she got there she asked the teacher why she sent the referral home without it being in a sealed envelope. When the teacher merely shrugged in reply, Respondent repeated the question and admits to again using the word, "shit". With that the teacher asked her to leave the classroom and she claims she started to do so with the teacher behind her. Respondent admits to using the word "shit" a third time but denies calling the teacher a bitch, and most specifically, she denies having cursed at any of the students. It has been found that she did not curse at the student. As she and the teacher were departing the classroom, Respondent indicates she again asked the teacher, in a voice louder than normal, why she had sent the referral home as she did. In doing so, she admits to holding the referral up in front of the teacher's face and claims that the teacher then pushed her hand out of the way. The teacher allegedly pulled on the door to close it and told Respondent to leave. Respondent claims she then turned away and pushed the door but denies having ever come into contact with the teacher. The overwhelming weight of the evidence indicates, however, that she pushed the teacher at least once, and it is so found. Respondent also admits to having used the word "shit" in front of the second lady who came to the room in a query about the referral. It was this individual, Ms. Mills, with whom Respondent walked back to the office. However, she denies having threatened her or stating that she or anyone else would be "messed up", and further denies having referred to Ms. Mills or anyone else as a "fucking cracker." She also denies having used the word "shit" with the principal, though it is clear she did. She claims, however, that the principal neither asked her to come into the private office nor gave her a reason for the referral. This is irrelevant, however. Respondent admits she was on her way back to the classroom from the office a second time but before she could do so, the police arrived and she talked with them. Respondent did not think she was frightening the children by her actions, but it is clear she was. She did not intend to do so. All she wanted was an answer to her question. She admits she was angry when she went to the office and when she went to the classroom. She admits to entering the classroom without knocking or without an invitation because the door was open even though the class was in session. However, she justifies her conduct as a result of having been upset. Respondent's work supervisor has never heard Respondent use profanity to her co-workers, to teachers or to students while on the job or otherwise. He has never received a complaint about her behavior from either students or teachers. He has heard other employees use profanity from time to time, but never in a direct confrontation with each other or in front of students or teachers. Mr. Morris has never disciplined any of his workers for using curse words but would do so for inappropriate conduct. He is aware of the Board's sexual harassment rule, but other than this is unaware of any Board rule which prohibits the use of curse words. Based on his limited experience with the Respondent, he has no concern over her working in an environment where she might come into contact with middle school students or teachers. When he hired her he knew of no record of prior discipline regarding the Respondent and apparently there is none. He agrees it is important not to use profanity around students and that students should feel safe in the school setting. In that regard, if he were to know that an employee did what Respondent is alleged to have done, he would feel that person should not be employed as a plant operator. James M. Barker, an administrator with the Board's Office of Professional Standards, investigated the allegations against the Respondent and concluded that they were accurate and constituted various violations of Board Policy 6Gx52-5.31 which outlines in writing offenses and penalty ranges for employee misconduct. He interviewed the teachers involved but not the students, and when he interviewed the Respondent, she denied all of the allegations. She admitted she was upset by the comments contained on the referral slip but denied either touching a teacher or using threatening language. Notwithstanding, Mr. Barker's investigation indicated to him that Respondent had improperly harassed a student, used inappropriate or disparaging remarks to students, improperly interacted with colleagues, and committed misconduct in office, all in violation of Subsections (l), (n), (p) and (v) of the policy. The aforementioned sections list not only the conduct which is considered actionable, but also suggests a penalty range for the imposition of discipline when misconduct is found to exist. In each case, the suggested penalty ranges from either a caution or a reprimand to dismissal. Section 3 of the same policy outlines aggravating or mitigating factors which may be considered when determining the appropriate penalty. In this case, Mr. Barker recommended dismissal of the respondent because he could find no factors in mitigation but did find aggravation in the severity of the offenses committed, the involvement of students, the potential for damage to the public and the actual emotional damage imposed upon Ms. Robinson and the students. Even though the Board's policy and general practice is to impose discipline progressively, here he recommended dismissal immediately because of Respondent's comments before students and her aggression toward Ms. Robinson. Mr. Barker is aware that Respondent has been employed by the Board for only a relatively short time and that she was not employed at the school where her misconduct occurred. He is also aware that Ms. Robinson did not seek medical of psychological help as a result of her contact with Respondent but does not know if any member of the public was involved. He considers Ms. Robinson and the staff at Lynch to be coworkers of the Respondent even though they are not employed at the same school and they did not know Respondent was a Board employee at the time of the incident. This is an overly broad interpretation. Mr. Barker's recommendation was based on his determination that the Board does not consider it appropriate for any employee of a public or private school to act as Respondent did in this instance. Teachers should not have to fear assault in class and students should not have to be exposed to conduct like that alleged here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a Final Order affirming the temporary suspension of Respondent with pay and her termination from employment with the Board as of December 14, 1995. DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-6148 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. & 2. Accepted and incorporated herein. 3. - 14. Accepted and incorporated herein. Accepted and incorporated herein, except for the allegation that the Respondent pointed her finger at the students. - 33. Accepted and incorporated herein. 34. & 35. Accepted but not probative of any fact in issue. Respondent's Proposed Findings of Fact. 1. - 6. Accepted and incorporated herein. 7. & 8. Accepted Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools 301 4th Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Lydia S. Castle, Esquire Gulfcoast Legal Services, Incorporated 641 First Street South St. Petersburg, Florida 33701 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Michael H. Olenick General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Between the school years of 1970-71 and 1979-80, Mr. Carroll has been employed as a school teacher by the School Board of Dade County, Florida. During the school year 1970-71 he was absent without authority from his assigned duties for a period of 9 days. During the 1971-72 school year he was absent without authority for 16 days. In the 1972-73 school year Mr. Carroll was absent without authority for 27 days. During the 1973-74 school year he was absent on 24 occasions without proper authority. His absences without authority in the 1974-75 school year amounted to 5 days. During the 1975-76 school year he was absent without authority for 41 days. In the 1976-77 school year he was absent without authority for 66 days. During the 1977-78 school year he was absent without authority or leave for a period of 30 days. During the 1978-79 school year, Mr. Carroll was absent without authority for 51 days. During the school year of 1979-80 up to the time of his suspension by the school board on March 12, 1980, the Respondent was absent for 30 days without leave or authority. (The foregoing findings are taken from the notice of charges and admissions of Respondent in his answer). Mr. Carroll has been diagnosed to suffer from a peptic ulcer. A peptic ulcer results from an irritation of the stomach lining by gastric acid. That type of ulcer is believed to be related to mental stress. Respondent had been to several physicians including a psychiatrist for this problem during the last several years. Between May 12 and May 17, 1979, he was hospitalized for treatment of his ulcer. If Mr. Carroll refrains from smoking cigarettes and drinking alcohol, the symptoms of his ulcer can be ameliorated somewhat. This information was given to him by his last treating physician, Dr. Jeffrey Fox. In spite of this advice Mr. Carroll continues to smoke and drink in moderate amounts. There are times when the symptoms from Mr. Carroll's ulcer are so severe that he is unable to work. It was during those periods of exacerbated symptoms that Mr. Carroll has been absent from his teaching duties. There is no medical indication that Mr. Carroll is using his illness for malingering. Mr. Carroll has not seen Dr. Fox since July 26, 1979, for the follow-up treatment which Dr. Fox recommended. On several occasions Mr. Carroll's supervisors have counseled him about his excessive absences and told him that if they continued, he could to terminated from employment. Because of his illnesses, Mr. Carroll has been granted two medical leaves of absence. The first was from February, 1978 until the end of the school year. The second leave was from May, 1979 at the time of Mr. Carroll's hospitalization until the end of the school year. Mr. Carroll has a continuing contract as a member of the instructional staff of the School Board of Dade County, Florida.
Recommendation Based on the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED: That the suspension of Respondent, James P. Carroll be sustained. It is further RECOMMENDED that Respondent, be offered an option to resign as a member of the instructional staff for reasons of health within five (5) days from the entry of the Board's final order. In the absence of such a resignation by Respondent, it is RECOMMENDED he be dismissed from his employment by the School Board of Dade County, Florida. DONE and RECOMMENDED this 21st day of January, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1981.
The Issue The issues to be determined are whether Tovelah Susson Hirsch (Respondent or Ms. Hirsch), failed to properly supervise and protect the welfare of her students, aggressively pushed and pulled students by their hair and arms, used disparaging language toward her students, or allowed uncertified volunteers who had not been cleared by the school in her classroom, in violation of section 1012.795(1)(j), Florida Statutes (2011), and implementing rules,1/ as alleged in the Administrative Complaint, and if so, what sanction is appropriate.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals holding Florida educator certificates. Ms. Hirsch holds Florida Educator’s Certificate 956306, which is valid through June 30, 2020. At all times pertinent hereto, Ms. Hirsch was employed as either a Library Media Specialist or teacher at Highland Oaks in the Miami-Dade County School District (District). During the 2011/2012 school year, Ms. Hirsch was a Library Media Specialist. As part of her duties, she supervised the fifth-grade students who helped conduct the morning announcements from the Highland Oaks media center. Several of these students submitted statements that Ms. Hirsch pushed and pulled students to get them into their correct positions for the television broadcasts. Some of the student statements were dated April 9, 2012; others were dated the following September. The investigative report based upon the student statements indicated that the incident occurred on April 5, 2012. However, some of the student statements indicated that Ms. Hirsch “always” or “sometimes” did this. The Administrative Complaint stated only that Ms. Hirsch aggressively pushed and pulled students “during the 2011/2012 school year.” Several witnesses testified that they were often present in the media center during the preparation time for morning announcements and never saw Ms. Hirsch grab a student or pull a student’s hair. None of the witnesses testified specifically that they were present on April 5, 2012, or otherwise indicated the specific dates of their observations. Ms. Rubin prepared school documents based upon the students’ written statements and their conversations with her, but she did not personally ever see Ms. Hirsch pull the hair of a student or grab or push any of the students. Ms. Hirsch testified that she never grabbed students before or during morning announcements and never pulled a student’s hair before or during morning announcements. The following school year, Ms. Hirsch was moved from the media center to a classroom teacher position. Ms. Rubin testified that one day she was walking around the school building and saw Ms. Hirsch’s class “running all over the place.” There was a turnabout2/ present, but Ms. Rubin testified, “she wasn’t really supervising because they were running all over the–-all over the school and climbing on the waterfall.” Ms. Rubin testified that turnabouts are not supposed to be escorting students or supervising them. Ms. Rubin rounded the students up and took them back to Ms. Hirsch’s classroom. She found Ms. Hirsch sitting in her room by herself. At hearing, Ms. Hirsch testified that she had been assigned a turnabout for her second-grade class. She went on: So I sent her to pick up the students from P.E. and I was accustomed to seeing turnabouts bring students in groups to the library the whole year and I was very accustomed to turnabouts having students and bringing them in and bringing them back, especially – especially younger grades. * * * So although I sent her to pick up the students, he [the P.E. teacher] had to have released them to her. And if that was not a policy, then I couldn’t imagine that he wouldn’t have released her – them to her. So although I had no idea that it was incorrect – it was not clear about the policy of sending a turnabout to pick up the students – he obviously released the students to her because the students don’t get up and run away from P.E. They have to have a teacher pick them up. Mr. Mauricio Cardet, a physical education teacher at Highland Oaks, said he was familiar with turnabouts, and he did have turnabouts come to pick up students after his physical education class to take them back to a teacher’s classroom. He said this occurred “very infrequently, but it has happened.” If there was a specific policy forbidding the use of seventh or eighth grade student “turnabouts” to escort groups of students from and to class at Highland Oaks, it was not placed into evidence. However, as Ms. Rubin testified, it is “not acceptable” to have an eighth-grade student picking up an entire class of second graders outside of a classroom setting in the absence of the teacher. In giving such a child that responsibility, Ms. Hirsch failed to make reasonable effort to protect the younger students from conditions harmful to their physical health or safety. The fact that, in this instance, no harm befell the students does not refute that conclusion. The credible testimony that turnabouts were also improperly used by other teachers at Highland Oaks upon occasion does not exonerate Ms. Hirsch, though her knowledge that this occurred and the lack of clear guidance may be considered as mitigating factors. Ms. Rubin also testified that on February 21, 2013, one of Ms. Hirsch’s students came to her and told her that some students were locked out of Ms. Hirsch’s classroom in the rain. Ms. Rubin testified that the doors on Ms. Hirsch’s portable classroom lock automatically when they close. Ms. Rubin testified that the student told her that they had begged Ms. Hirsch to let them come in and were banging on the door, but that Ms. Hirsch would not open the door. Ms. Rubin testified that she went back to the classroom with the student and that when they arrived all of the students were inside. Some of the students prepared written statements that said it was drizzling and Ms. Hirsch would not let them come into her classroom when they returned from lunch. The statements said that the students began to cry because they thought Ms. Hirsch was mad at them, and they thought that she was going to call their parents. The statements said that Ms. Hirsch let the students in when it began to rain harder. The statements also said that Ms. Hirsch told one student not to come back to school because he gave her “attitude,” and told that student to “shut the hell up.” No students testified. Ms. Hirsch prepared a written response for submission to the Conference for the Record conducted on this incident.3/ It stated in relevant part: I hurried the class along to get them all inside before it began to downpour. I supervise the students entering the portable but a few run and hide behind a large oak tree. They try to stay outside to see if I notice they are missing. * * * I do not ever lock students out of class. The door does stay locked when the students are in the classroom. There is a very big difference. I am the only one who opens or gives permission to open the classroom door. At hearing, Ms. Hirsch testified that she almost immediately realized from silently counting her students that some had not come in, right before she heard banging on the door. She went to open the door to let them in. She said one student was at the door under the awning, but the others were behind a tree or behind the side of the building. She testified that she called to them and they all came in except for one, who got very wet before he would come inside. Ms. Hirsch denied that she ever told a student to “shut the hell up” or not to return to school because of his attitude. Ms. Rubin also testified that on three occasions she found unapproved people acting as volunteers in Ms. Hirsch’s classroom. Specifically, Ms. Rubin testified that she once found a neighbor, and on two occasions, Mr. Hirsch’s husband, in Ms. Hirsch’s classroom without required authorization from “downtown.” Ms. Hirsch admitted that her husband, a licensed principal in New York, and a neighbor did assist her as volunteers, but insisted that they had been approved at the front office of the school and that this was all that was necessary. Neither party presented corroborating testimony or copies of school or district policies confirming exactly what the vetting process for volunteers entailed, either as direct evidence or in rebuttal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent Tovelah Susson Hirsch in violation of Florida Administrative Code Rule 6A-10.081(3)(a) and section 1012.795(1)(j), Florida Statutes, issuing her a Letter of Reprimand, and placing her on probation for a period of one year. DONE AND ENTERED this 20th day of January, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2017.
The Issue Whether the Respondent should be dismissed as a member of the instructional staff, and from any further employment by the Petitioner for misconduct in violation of Sections 231.09(2), (3), (4) & (12) and 231.36(6), Florida Statutes. It was stipulated by the parties that depositions of the Respondent, Lisa Lineberry & Joe B. McCawley would be admitted into evidence (Exhibits 1-3). The stipulation was accepted. Petitioner moved to amend its Petition in the following respects and, there being no objection, the motion was granted: Paragraph I Strike "non-tenured" and insert therefor "continuing contract." Strike second sentence in its entirety. Paragraph II B - Amend to read as follows "In the instances of student Lineberry and student Wallace; Respondent Atkisson failed to seek or gain specific parental approval for the hypnosis sessions before undertaking the hypnosis sessions." Paragraph II C - Delete phrase "he does not have a license nor the authority to practice hypnotism."
Findings Of Fact Respondent began employment at the Edgewater High School, Orlando, Florida, during the 1970 school year as a Distributive Educational Coordinator. He remained in this position until the 1972 school year when he became a Work Experience Coordinator. In this capacity, he handled a distributive education program for 10th graders which was designed to coordinate a program of formal education and practical experience for the students in order to prepare them for gainful employment during high school or upon graduation. After annual contracts for the first three years of his employment at Edgewater, Respondent acquired continuing contract status in business education. (Deposition of Respondent, Testimony of Kent). In the early 1960s while in college at the University of Texas, Respondent became interested in hypnotism as a result of a six-week block of instruction in a psychology course. Although he had no formal training in the field, he subsequently engaged in extensive private study. In 1971 he became concerned over his daughter's drug problem and discussed the possibility of using hypnotism on her with Dr. John Hood, a general medical practitioner of Orlando. After these discussions, Dr. Hood provided Respondent with a letter of recommendation that enabled him to obtain an occupational license as an ethical hypnotist from the Orange County Florida License Bureau. Respondent asserts that after working with his daughter about three times, she stopped using drugs such as marijuana, mescaline & LSD. (Deposition of Respondent) During the 1973-74 school year, Respondent was invited to speak in a psychology class at the high school concerning the subject of hypnosis. At this time, he would tell the students that hypnotism could be effective in helping individuals overcome emotional problems and tension, assist in weight control and improve study habits. As a result of these talks in the classrooms, several football players sought him out, one to gain weight and the other to improve his concentration and grades in school. According to the Respondent he was successful in both of these cases by using hypnotism at the students' homes with their parents' consent. During this period, Mr. C. Norman Kent, Principal of Edgewater High School, had numerous conversations with Respondent concerning hypnotism and Mr. Kent was aware that Respondent had lectured to various classes on the subject. He permitted Respondent to continue his lectures to classes with the provison that he could not use classrooms to work with individual students. Respondent would inform the students during his lectures that he was not permitted to practice hypnotism in the classroom and therefore what he did when he worked with students was to make "high-powered suggestions." Mr. Kent asked Respondent to work with his own son to improve his study habits and permitted him to do so in Respondent's office at the school. Mr. Kent observed that his son's "organization of his life" and the use of his time was improved as a result of Respondent's efforts. (Deposition of Respondent, Testimony of Kent, Exhibit 5) During the 1974-75 school year, Respondent hypnotized the following students: Karen Rife - Karen had had "spells" which were epileptic in nature since she was about 2 years old. When under one of these spells she would stare into space for a few seconds and then be very tired and emotionally drained. Many years ago she had had a slightly abnormal EEG. Her parents had taken her to physicians over the years without success. She heard Respondent's lecture in one of her classes and asked him if he could help her. After obtaining the permission of her parents, he held four sessions with her in an attempt to determine where and when her problem started. By going back with her in time with the use of hypnotism, he was able to pinpoint a time when she was approximately 2 1/2 years old and had to use the bathroom but was waiting for her sister to emerge from it. She leaned against the door and fell down a flight of stairs into the basement knocking over a can of kerosene which completely saturated her clothes. From that time on, Respondent discovered, there were two things that triggered her seizures, one was the smell of petroleum products and the other was the need to urinate. By giving her appropriate suggestions while in a state of hypnosis her spells decreased 90 to 95 percent according to her parents, and she was a "brand new individual" with improved grades and attitudes. The hypnotic sessions took place in the Rife home, in Respondent's home, and in his office at Edgewater High. Although Respondent had contacted the Rife family physician and a neurosurgeon who had treated the girl to obtain information concerning her condition, he did not work under their supervision or control. Respondent acknowledged in his deposition that epilepsy is a mental disease and testified at the hearing that Karen's condition would fall under the area of medicine as a psychological problem. However, he claimed that he did not attempt to correct the problem but only determine what had caused it and make suggestions to eliminate the causes for the seizures. He emphatically denied that he "treated" her for epilepsy. (Deposition of Respondent; testimony of Respondent, Hallie E. Rife) Joe Wallace & Gregg Hanks - These were two football players who wished to gain weight and sought the assistance of Respondent after hearing his lectures in class. He asked them to obtain the permission of their parents and they both informed him later that their parents had agreed to the sessions. In fact, the Wallaces had not agreed. Respondent had two sessions with each of the boys at school and they both gained weight. Respondent testified that the technique he used was to have the students sit in a chair in the classroom and to choose a spots on either the wall or the ceiling that they could concentrate on for just a few minutes while he slowly talked them into a relaxed state (Deposition of Respondent, Testimony of Respondent, Wallace) Susan Smith - This student sought out the Respondent in order to lose weight. Her father was extremely ill and later died. She would go through periods of weight loss and gain. After receiving permission of the father, Respondent had four sessions with Susan, one of which was at school at an undisclosed place and three at his home. Respondent's efforts were temporarily successful in weight control, and assisted in handling the emotional strain of her father's death, according to the Respondent. (Deposition of Respondent) Allan Pyland - This student had problems with bed-wetting for which he had seen numerous doctors in the past, but was not currently under medical care. After securing-permission of the parents, Respondent conducted two sessions with the student at the school and, according to Respondent, the problem was alleviated "at least for awhile." (Deposition of Respondent) Lisa Lineberry - Lisa, a sixteen year-old student, came to the Respondent seeking assistance to improve her concentration in study habits, to lose weight, and to overcome the practice of smoking marijuana. According to Respondent's testimony, she had been placed in a drug rehabilitation center several times by her parents without success. Respondent sought the permission of her father, a deputy sheriff, to hypnotize her to try to get her to stop smoking marijuana and he agreed to the idea. The first session was held in Respondent's classroom at Edgewater High School and, after suggesting to the girl that she would not desire to smoke marijuana anymore, she did not do so for about a week and a half. Then, after reporting to the Respondent that she had again smoked marijuana, Respondent had a second session in his classroom and told her that if that attempt did not prove successful, there might be a possibility they could work while she was under the influence of marijuana, if necessary, at a further session. After the second session, she gave up smoking marijuana for about a month and then came back to the Respondent one morning and told him, "I have the equipment for another session" and informed him that the night before she had gone back to marijuana again. Respondent assumed by her statement that she had marijuana in her possession and agreed to a further session that day. She again came to his classroom and he told her that "obviously we can't work here, do you want to go to my house?" After school that day, they proceeded to Respondent's home after stopping by two houses of Lisa's girlfriends to obtain "rolling papers" and marijuana. Upon arrival, Lisa smoked a marijuana cigarette and then Respondent had her lie on his bed and stare at the ceiling while he put her in a hypnotic state. His testimony was that, although she had showed manifestations of the influence of marijuana prior to hypnosis, they had disappeared when she left his home to go back to her house. There were no longer any visible signs such as dilation of the pupils of the eyes, awkward walk and loss of balance. Respondent acknowledged that he had used "poor judgment" with regard to this incident, but that he was attempting to help her personally in a matter that had nothing to do with the classroom or her education as such. He conceded that his idea of attempting to help Lisa had come from a situation in which he had assisted prior individuals in giving up cigarettes and alcohol, and was in the form of a trial attempt to see if hypnotism would negate the desire for marijuana. (Testimony and Deposition of Respondent, Deposition of Lineberry) Respondent testified that he did not attempt to cure or treat medical problems and that unless a person had a specific thyroid problem or something of that nature he did not consider it to be a medical problem. He did not view the smoking of marijuana as such a problem. It never entered his mind to consider that if Lisa Lineberry had been arrested for breaking the law by smoking marijuana that she would have had a bigger problem than she had had before. (Deposition and testimony of Respondent) Although not required by law, the ethical standards of the National Association of Advanced Ethical Hypnosis require hypnotists to have at least one parent's consent when working with an individual under the age of 18 and to have a third party present if a hypnotist is dealing with a person of the opposite sex. In cases involving weight control, epileptic seizures, bed-wetting, and use of marijuana, accepted standards of practice would also require medical referral of the individual to the hypnotist because any of these conditions are considered to affect a person's health, and use of hypnotism is considered therapeutic in nature. Normally it would not be helpful in a situation where a person uses marijuana to have that individual under the influence of marijuana at the time hypnosis takes place because he would not respond as well to hypnosis as otherwise. Most hypnotists normally will not work with a subject under such circumstances. (Deposition of McCawley)
The Issue The issues in this case are whether just cause exists to discipline Respondent based on allegations that he used inappropriate language when talking to students, in violation of the Principles of Professional Conduct, and, if so, what discipline should be imposed.
Findings Of Fact Woodard has worked in the Duval County public school system since 2002. There was no evidence presented of any prior incidents of inappropriate behavior, or of discipline being imposed upon Woodard by the School Board. During the 2014-2015 school year, Woodard was employed by Petitioner as an In-School Suspension (“ISSP”) teacher at Northwestern. The ISSP teacher is an instructional and leadership position, and the ISSP teacher is supposed to set an example for students and help them modify their behavior. The ISSP class was created to allow students who engage in disciplinary misconduct to remain in school rather than being removed from the classroom environment. The referral of students to ISSP can come from administrators, teachers, or any other employee who observes student misconduct. Although Woodard taught the ISSP class, he did not discipline students or assign them to ISSP, and he did not give students grades. During the 2014-2015 school year at Northwestern, Woodard was assigned to the gym in the mornings, where sixth- graders were directed to go after eating breakfast in the cafeteria, to wait for their teachers to pick them up and take them to class. On January 23, 2014, the Duval County School District’s (“District”) Office of Professional Standards opened an investigation of allegations that Woodard used inappropriate communications with and/or in the presence of students. The investigation, which was conducted by Investigator Reginald Johnson in the District’s Office of Professional Standards, sustained the allegations. On September 29, 2015, Woodard received a Step III Progressive Discipline – Reprimand and Suspension Without Pay (Revised 9/29/15) for conduct the District alleged violated the Florida Code of Ethics, rules 6A-10.080(2) and 6A-10.080(3) and the Principles of Professional Conduct, rule 6A-10.081(3)(a). The Step III Progressive Discipline alleged that Woodard used the term D.A.N. or DAN when talking to or referring to students at Northwestern, which the District alleged was an acronym for “dumb ass niggers.” In his defense, Woodard testified that in mentoring students, he shared stories from his childhood and his own life in order to be more relatable to students. According to Woodard, he used the story of his childhood friend Dan to impress upon students that it is not where you start, it is where you end up. Woodard’s friend Dan used to skip school, get to school late, fight, and disrespect authority, and Woodard urged his students not to be a Dan. As discussed below, Woodard’s testimony in this regard is not credible. Student D.M. testified that Woodard called students D.A.N.s in the gym and in ISSP class when the students were either acting up or in trouble. D.M. also testified Woodard wrote the word D.A.N. on the board in ISSP class with periods in the word, and the word stayed on the board in ISSP class. D.M. never heard Woodard tell a story about a friend named Dan. Student H.N.J. was in ISSP class with about seven other students when Woodard told them that D.A.N. meant “dumb ass niggers.” H.N.J. said Woodard called students D.A.N.s when they were acting up and disrespectful, and that Woodard gave two meanings of the word D.A.N.-–“dumb and nobody” and “dumb ass niggers.” H.N.J. does not remember Woodard relating a story about a friend named Dan. Woodard’s use of the word D.A.N. toward students made H.N.J. feel put down and “sad and mad at the same time,” and the fact that Woodard was a teacher made this worse. Student B.S. stated Woodard yelled at students and called them D.A.N.s in the gym whenever they were talking loud or would not listen. B.S. does not recall Woodard telling a story about a friend named Dan. B.S. learned that D.A.N. means “dumb ass niggers” from A.W., another student. Woodard’s reference to students as D.A.N.s made B.S. feel “sorry and mad,” and she began crying on the witness stand. Student K.H. testified that Woodard called her a D.A.N. when she stepped out of line in the gym and that he called other students D.A.N.s when they were misbehaving, fighting, or being loud. K.H.’s friend told her that D.A.N. means “dumb ass nigger.” K.H. never heard Woodard tell a story about a friend named Dan. K.H. and her brother, student D.H., complained to their mother about Woodard calling students D.A.N.s. The mother of K.H. and D.H. contacted Northwestern and later the media after the school did not do anything about the complaint. Woodard’s use of the term D.A.N. made K.H. “feel disrespected and low life because it’s not supposed to be used towards children” and because Woodard is a teacher and the same race as K.H. During the 2014-2015 school year, student D.H., was in the seventh grade at Northwestern. D.H. heard his friends in math class calling each other D.A.N.s. So he asked one of his friends what D.A.N. meant. D.H.’s friend (a student named “J”) told D.H. that D.A.N. meant “dumb ass niggers” and that Woodard called kids that word. D.H. was bothered that someone of his own race was calling him that, and also that it came from a teacher. The students’ descriptions of Woodard’s comments and behavior were fairly consistent. The things they reported hearing and observing were very similar to contemporaneously written statements from them and other students. The alleged remarks were similar in nature to one another but not exactly the same, so the comments did not seem rehearsed or planned. The students were very direct and unwavering when testifying at final hearing. The testimony of H.N.J. was particularly persuasive and clearly established that Woodard intended to use the term D.A.N. as a derogatory epithet: either “dumb and nobody”; or “dumb ass niggers.” Significantly, none of the students who appeared at hearing would have had a motive to testify falsely. As noted, Woodard did not assign grades to any of these students or assign them to ISSP, so none would have had an axe to grind with Woodard. The testimony of the students is credible. Teacher Linda Raggins testified that she heard Woodard tell students in the gym “to not act like Dan.” Toward the end of the school year, Raggins asked Woodard “who is Dan?” Woodard gave Raggins two explanations, the first of which she did not recall. The second explanation Woodard gave Raggins was that “some people use Dan to mean dumb ass niggers, but that’s not how I – that’s not what I’m talking about.” Raggins did not recall Woodard providing any other meaning for the word D.A.N. Raggins is a union representative and first agreed to provide a written statement, but then declined to provide a statement on the advice of counsel. Raggins did not tell Investigator Johnson that Woodard told a story about someone named Dan. Former teacher Jason Ludban heard Woodard use the term D.A.N. a handful of times. Ludban said that Woodard used the term D.A.N. “openly and loudly for all to hear,” which made Ludban believe it was acceptable. Ludban learned from a student that D.A.N. meant “dumb ass niggers.” Ludban never heard Woodard tell a story about a friend named Dan. If Ludban believed that Woodard was using the term D.A.N. to mean “dumb ass niggers,” Ludban would have had a duty to report it. Woodard gave Investigator Johnson the names of three additional student witnesses, whom Johnson interviewed. One of the students confirmed that Woodard wrote the word “D.A.N.” with periods on the board in ISSP class. Two of the students told Johnson that Woodard told them the story of a friend named Dan, but this occurred about two weeks prior to the date Johnson interviewed them, after the allegations were reported in the media and when Woodard was already facing discipline. Despite Woodard’s claim that Dan was a real person, Investigator Johnson does not recall Woodard telling him the last name of Dan or giving him any contact information for “Dan.” Johnson would have interviewed Dan if Woodard had provided that information. Woodard also did not provide Investigator Johnson with the names of any adults at Northwestern to whom Woodard told the Dan story. None of the witnesses Investigator Johnson interviewed--students or adults-- stated that Woodard told them a story about a friend named Dan. It is within management’s discretion to skip a step of progressive discipline if the conduct is severe. Assistant Superintendent Sonita Young recommended Step III discipline against Woodard because he was in a position of authority and his role was to provide support to students in terms of behavior modification, but Woodard used derogatory language that was offensive toward students. In deciding whether discipline is warranted, the District looks at the totality of the circumstances, including the number of times an incident occurred, how many witnesses there were to the incident, the severity of the incident, whether harm occurred to the child’s physical or mental well-being, whether the employee has been previously disciplined for the same conduct, and whether the employee acknowledged his behavior and is willing to modify his behavior. According to Assistant Superintendent Young, the factors supporting the Step III discipline were that Woodard said the derogatory word D.A.N. to multiple students, the students were middle school students, the student population was fragile and of very low socioeconomic status, and the conduct was repeated over a period of time rather than a singular incident. The fact that this language was used by a teacher, a person in a position of authority whom students have the right to feel “safe” around, were additional factors supporting the discipline. Young believes that Woodard’s use of the word D.A.N. toward or around students showed poor judgment and was damaging to them. Respondent called various character and fact witnesses (Jasmine Daniels, Tiffany Thomas, Tabitha Johnson, Pastor Fredrick Newbill, Niger Lambey, Ricky Stanford, and Daniel Drayton) who testified that Woodard told the story of his friend Dan at a church youth group, in his sermons, or that they knew the story from growing up with Woodard. However, none of the witnesses testified that they heard Woodard tell the Dan story to District students or in a District classroom. Pastor Newbill testified that in his community, D.A.N. has been used as a racial epithet for “dumb ass niggers” for at least the last 25 years. Dr. Arvin Johnson, the former principal of Northwestern, received a complaint about Woodard from a parent in May 2015, near the end of the 2014-2015 school year. Dr. Johnson, who is a friend of Woodard, heard Woodard use the term D.A.N. with students once or twice, but he never heard Woodard tell students a story about a friend named Dan. Although Dr. Johnson has known or worked with Woodard for approximately 12 years, the first time Woodard told Dr. Johnson the story of a friend named Dan was in connection with the parent’s complaint against Woodard in May 2015. Although Woodard has been employed with the District since 2002, he admitted that he did not tell the Dan story to students during the first 12 years of his employment. Woodard did not begin telling the Dan story to District students until the 2014-2015 school year. After not speaking to Daniel Drayton for several years, Woodard called Drayton in 2015 to remind him of the Dan story. Woodard stated that if he knew there was a negative interpretation of D.A.N. he would not have used the term, but his explanation to Ms. Raggins shows that he knew that a racially derogatory meaning of the word D.A.N. existed. Woodard claims that the students lied about him using D.A.N. as an acronym for “dumb ass niggers,” but he could not offer an explanation as to why students, whom he claims “loved” him, and were excited to attend his class, would lie about him. The greater weight of the evidence supports the contention that Woodard used the term D.A.N. in the presence of his ISSP students as a derogatory racial epithet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, rescinding its suspension of the employment of Ernest Woodard and, instead, issuing a written reprimand. DONE AND ENTERED this 30th day of November, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2016.
The Issue Whether Respondent should be dismissed from employment with the School Board of Suwannee County pursuant to Section 231.36(6), F.S., for willful neglect of duty, as set forth in Petition for Dismissal, dated February 2, 1983. Petitioner presented the testimony of Charles F. Blalock, Jr., Principal of the Suwannee Elementary School East, Live Oak, Florida, and submitted five exhibits in evidence. Respondent testified in her own behalf and presented the testimony of Mary Miller, an instructor and President, United Teachers of Suwannee, and Dr. Gail Lesesne. Posthearing submissions of the parties in the form of proposed recommended orders have been fully considered and those portions thereof not adopted herein are considered to be either unnecessary, irrelevant, or unwarranted in law or fact.
Findings Of Fact Respondent Sandra Spicer is employed by Petitioner School Board of Suwannee County, Florida, as a classroom teacher/speech therapist at Suwannee Elementary East School, Live Oak, Florida. She has been so employed on a continuing contract since 1981. (Testimony of Petitioner, Blalock, Petitioner's Exhibits 4-5) During the past school year, Respondent's schedule provides for lunch during the period 11:30 A.M. to 12:15 P.M., and instruction of four second grade students in speech therapy during the period 12:15 P.M. to 12:45 P.M. (Testimony of Respondent, Blalock, Petitioner's Exhibit 3) On January 6, 1983, while eating lunch in the school lounge, Respondent became ill with a headache and her "heart was just racing," and she feared that she was going to have a heart attack. Respondent has the medical problem of high blood pressure and hypertension and has used the diuretic medication Diazide intermittently since 1981 when it was first prescribed by a physician. The symptoms that Respondent experienced on January 6 were a result of elevated blood pressure. In such instances, it is urgent for the individual to see a physician or take appropriate medicine as soon as possible. (Testimony of Respondent, Lesesne) At the time Respondent experienced the symptoms related above, she determined that it was necessary to take medication which was at her home. She testified at the hearing that she believed it was unnecessary to obtain permission to leave the school grounds during her lunch period, as long as she signed out at the school office. She had been orally counseled by her Principal, Charles F. Blalock, Jr., in April, 1982, concerning unauthorized absence from her classroom. However, the circumstances that prompted the conference were not disclosed at the hearing. Respondent conceded that she had gone to another school on duty at one time in the past without signing out and that an assistant principal advised her to always obtain permission before she left when she was supposed to be on duty. In October, 1982, her Principal, Charles F. Blalock, Jr., had a conference with her concerning a number of matters, including a reminder of "the incident" that had occurred in the previous school year, and summarized the conference in a letter, dated October 15, 1982, in which he noted that there had been a problem with Respondent's "negligence in signing the Sign In and Out Roster," and "being more accurate in signing in and out and securing permission to leave." (Testimony of Respondent, Blalock, Petitioner's Exhibit 1) Respondent went to her classroom from the lounge to obtain her purse, signed out at the school office at 12:10 P.M. and drove to her home to obtain her medicine. Since it only ordinarily took about 3 1/2 minutes to drive to her home, she believed that the round-trip would only take about 8 minutes, and that she would be back at school in time to meet her class. She was not "thinking clearly" at the time. She further testified that ordinarily the students were tardy in arriving at the 12:15 P.M. class, and usually were not there until about 12:20 or 12:25 P.M. She did not return to the school premises until 12:35 P.M. and proceeded directly to her classroom where she found another teacher standing at the door and the students in the room. (Testimony of Respondent) About 12:20 or 12:25 P.M., Principal Blalock heard excessive noise in the hall and observed children running in and out of Respondent's classroom. He asked the students where their teacher was and they did not know. He supervised them for 10 or 15 minutes and then sought to discover Respondent's whereabouts without success. At about 12:40 P.M., he saw Respondent walk up to her classroom and asked her where she had been. She informed him that she was "coming from home." He asked who gave her permission and she said she didn't know that she needed permission and proceeded to enter the classroom. There is a conflict in the testimony as to whether Respondent told Principal Blalock at that time whether she had gone home to obtain medicine for her high blood pressure condition. Respondent testified that she had given him that information at the time she saw him at the classroom. It is found that Respondent did inform him concerning her reason for leaving at that time. After talking to Principal Blalock, Respondent went to the office at 12:40 P.M. and signed in as of that time. (Testimony of Respondent, Blalock, Petitioner's Exhibit 2) Later that day, Principal Blalock informed Respondent that he was going to call a meeting the next day concerning her absence. On January 7, 1983, in the presence of other school officials and a union representative, the principal informed Respondent that she had been negligent in leaving the school premises. At this time, she again informed him that she had left to obtain her medicine. (Testimony of Blalock, Respondent, Miller)
Recommendation That Respondent Sandra Spicer be reinstated as a member of the instructional staff of Suwannee Elementary East School and that her back salary be paid from the date of suspension. DONE and ENTERED this 24 day of May, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 24 day of May, 1983. COPIES FURNISHED: William B. Slaughter, II, Esquire Suwannee County School Board Post Office Box 906 Live Oak, Florida 32060 Steven A. Been, Esquire Assistant General Counsel FEA United-208 West Pensacola Street Tallahassee, Florida 32301 School Board of Suwannee County Superintendent Frank R. Stankunas 224 West Parshley Street Live Oak, Florida 32060
The Issue The issue is whether Petitioner may terminate Respondent's teaching contract for just cause.
Findings Of Fact Respondent has been a science teacher since 1974. After six and one-half years of service in the military, which included service in Vietnam, Respondent attended college and graduated from St. Louis University with bachelor's and master's degrees in chemistry. After a short career in private industry, Respondent entered the teaching profession in Pennsylvania. In 1983, Respondent moved to Miami to continue teaching. For the first year, Respondent obtained a temporary position, filling in for a teacher out on pregnancy leave, teaching honors physics and biology at Palmetto Senior High School. For the next three years, Respondent taught earth science and physical science at Palm Springs Junior High School, both as a permanent substitute and regular teacher. Starting in August 1987, Respondent taught unspecified science courses at North Dade Junior High School for a year. Respondent's first extended assignment at one school was at Southwood Middle School, where he taught from August 1988 through June 1993. At Southwood Middle School, Respondent was a problem employee from the start; he was explosive, defiant, temperamental, and a bundle of nerves. From March 1989 through October 1991, different Southwood principals had to summon Respondent to the office for six conferences-for-the-record (CFR). In October 1990, the principal at Southwood Middle School directed his assistant principal to schedule an observation of Respondent, who repeatedly deflected her request to schedule a mutually convenient time for an observation. On one occasion, Respondent lacked a lesson plan, but the principal, rather than placing Respondent on probation for that deficiency, instead conducted a CFR on October 31, 1990, at which he reminded Respondent of the requirement of lesson plans. Eventually, the regional coordinator of the science department conducted the observation on November 26, 1990. The science coordinator assessed Respondent as deficient in preparation and planning, subject-matter knowledge, and instructional techniques. At a CFR on December 14, 1990, the principal prescribed appropriate remedies for these deficiencies. The CFR notes that Respondent claimed that the science coordinator had not judged him fairly. Next, Respondent taught at North Miami Senior High School from August 1993 to June 1997. Having obtained certification in physics, Respondent taught physics to advanced placement, international baccalaureate, honors, and regular classes, as well as earth-space science. During the 1997-98 school year and start of the 1998-99 school year, Respondent taught at Killian Senior High School. At Killian, he taught three physics and two chemistry classes. In the late summer and early fall of 1998, district office personnel began painting the interior of Killian Senior High School. The smell of paint was oppressive to students and staff. Based on numerous complaints, as well as his own experience, the principal contacted the district office and asked that they monitor the odor. Respondent was among the persons complaining about the paint, but he was far from alone. On October 5, 1998, unrelated to the paint situation, the principal conducted an observation of Respondent. The resulting evaluation notes numerous deficiencies in preparation (including the lack of a lesson plan), the delivery of instruction, and the management of the classroom. At the hearing, Respondent rejected the validity of this observation largely due to the principal's lack of background in science. In the ensuing days, the principal tried without success to arrange a CFR to discuss the observation and evaluation, although the scheduling problems were not shown to have been due to Respondent. Finally, on October 16, 1998--a teacher workday--the principal directed his assistant principal to get with Respondent and schedule the CFR. The assistant principal summoned Respondent to her office and asked Respondent to sign a notice of CFR setting a date for the conference. Respondent became very angry and called the principal, who is black, a "nigger." Respondent said the entire matter was a "bunch of bullshit." He then promised that he would see that the assistant principal "was taken care of" and "she would be sorry." The assistant principal replied that she only wanted him to sign the notice, but Respondent would not be mollified. In her 38 years in Petitioner's school system, the assistant principal has never seen an outburst like this from a teacher. Shaken, the assistant principal immediately telephoned the principal, who was downtown at a school meeting. She relayed to him what had happened and all that Respondent had said. The principal responded by telling her that he would call Petitioner's police and return to the school immediately. Arriving at the school, the principal met with several school police officers in his office. The officers wanted to arrest Respondent without delay, but the principal said that he wanted to speak to him first. The principal then walked up to the teacher's workroom where Respondent, alone, was working. The accounts of what happened next do not overlap very much. The principal, a sizeable man, claims that Respondent hit him. Respondent, a small man with a sizeable temper, claims that the principal hit him. It is impossible to credit either story. The principal's testimony is inconsistent, and he was an evasive witness. As reflected throughout these findings, Respondent's distorted perceptions, disordered thinking, poor insight, and lack of candor deprive him of credibility. Likely, neither man struck the other, although they may have grabbed or jostled a little. Wisely, Petitioner did not pursue the matter in a manner consistent with a teacher battery upon a principal, nor does Petitioner allege in the present case that Respondent struck the principal. Clearly, though, the two men quarreled loudly, and, when the confrontation escalated into an altercation, the school police entered the room and removed Respondent from the building. Petitioner reassigned Respondent to a region office. On October 21, 1998, Petitioner conducted a CFR for the October 5 observation. This CFR listed various prescribed remedies, but recognized that Respondent's nonacademic placement prevented the accomplishment of most of them. On December 10, 1998, Petitioner conducted a CFR for the October 16 incident. Petitioner presented Respondent with a list of physicians from whom he could choose, so that he could obtain a medical evaluation of his fitness to return to work. The letter memorializing the CFR directs Respondent not to visit the campus of Killian High School or contact any student or staff at the school by any means. Undoubtedly, Respondent had reached a breaking point by the time of the October 16 incident. The primary source of his increasing anxiety seems to have been the paint situation. Eventually, the district office had to have its personnel remove the paint due to toxic substances contained in the paint, and it is not unlikely that Respondent played an important role in the process that led to the eventual removal of the unhealthy paint. However, it is impossible to determine exactly when Respondent obtained evidence of the paint's toxicity. At some point, although not immediately, Respondent obtained the material safety data sheets for the paint and learned that the paint was unsuitable for a school. It is difficult to determine exactly when this occurred, and it is therefore difficult to assess Respondent's behavior. It appears likely, though, that, for a time at least, Respondent, fashioning himself a whistleblower beleaguered by the principal, bypassed normal administrative channels, proclaimed to his class that he would protect them from this toxic paint, and encouraged his students to have their parents complain about the paint. The evidence is sketchy as to whether Respondent violated the directive not to contact students or staff. Respondent probably contacted teachers and possibly contacted students in violation of the directive, but, absent detailed evidence of the conversations, it is impossible to find that these conversations constituted material violations of the directive. After some difficulties in selecting a psychiatrist acceptable to Respondent, he chose Dr. Anastasio Castiello from the names provided to him by Petitioner. Dr. Castiello conducted a psychiatric evaluation of Respondent on January 25, 1999. Based on a 50-minute interview and history largely supplied by Petitioner, Dr. Castiello diagnosed Respondent as suffering from a ”moderately severe psychiatric disorder warranting a recommendation for relatively intensive psychiatric treatment. The condition would also warrant the diagnosis of an involutional disorder with intertwined elements of paranoid and the affective disorders." Dr. Castiello conducted another 50-minute evaluation session with Respondent on August 16, 1999, and reached the same conclusions as he had in the previous session. On January 24, 2000, Dr. Castiello conducted a third and final evaluation session and concluded that Respondent was better and could return to teaching. The two-and-one-quarter, single-spaced report of Dr. Castiello covering the last session casts little light on the means by which Respondent journeyed from a moderately severe psychiatric disorder warranting relatively intensive psychiatric treatment to sufficiently better to return to teaching. It is odd that, after Dr. Castiello opined that Respondent would need relatively intensive psychiatric treatment, Dr. Castiello never obtained the records of other psychiatric treatment, to which Respondent alluded, or discussed Respondent's assertion that the course of that treatment never required medication. For the most part, judging from Dr. Castiello's final report, he seems to have been impressed by Respondent's politeness and lack of pressured, frenzied speech, as well as vague assurances that Respondent had learned his lesson. Unless the lesson was not to pick up another moderately severe psychiatric disorder requiring relatively intensive psychiatric treatment, Dr. Castiello's reasoning remains elusive. Although it almost goes without saying that Dr. Castiello's diagnoses of severe illness and substantial recovery are entitled to no weight, he legitimately observed that his focus was on how Respondent responded to the paint problem, not on whether, eventually, Respondent was proved correct in his claims of toxicity. In February 2000, Petitioner assigned Respondent to teach at Palmetto Middle School. Respondent enjoyed his new assignment, at least for awhile. However, on November 3, 2001, the assistant principal, who had been a science teacher, conducted an observation of Respondent in his classroom. On December 5, 2001, the assistant principal met with Respondent and told him that she had found several deficiencies during the observation and offered him a professional growth team, which he declined. When she offered Respondent help, he told the assistant principal, who is black, that he had been beaten by a black administrator, and the matter was still in litigation. From the start, the observation had been an unofficial observation, meaning that the results would not go into Respondent's personnel file. When the assistant principal informed Respondent of this fact and that she would return for an official observation later, he angrily replied that, if he did not pass the next observation, the assistant principal would have a problem. He told her that he had been a Green Beret in the military and had a considerable background in science. Surprised by Respondent's response to a "freebie" observation, as she called it, and stunned by his threatening behavior, the assistant principal reasonably feared for her personal safety. During November 2001, probably between the observation and meeting with the assistant principal described above, Respondent also had a confrontation with students and a teacher. A teacher across the hall from Respondent had been late returning from lunch, so the students for her next class were milling about in the hallway, waiting for her. Respondent confronted the students and, thinking they were exceptional student education (ESE) students, called them a "bunch of L[earning] D[isabled] students" and said that "LD students were always in trouble." When the students yelled back that they were not LD students, Respondent said, "You're all a bunch of LD losers." As this exchange took place, the teacher who was the ESE department head was approaching the students and Respondent. Her first response was to turn to the students and tell them that LD students are not losers. As she did so, Respondent stood behind her, laughing. The ESE department head then followed Respondent into his room and demanded to know why he was saying such things about ESE students and saying them to other students. Respondent denied saying anything and added that the matter was not any of her business. After a couple of inconsequential exchanges between the two teachers, Respondent warned the ESE department head that she should not be "messing" with him and that he has sued people. The ESE department head told him to do what he wanted to do and that she was going to file a grievance. Twelve years ago, a science coordinator observed Respondent and found him deficient in preparation and planning, subject-matter knowledge, and instructional technique. Respondent's response was to say the science coordinator was unfair. Four years ago, a principal without a science background observed Respondent and found him deficient in preparing a lesson plan, classroom management, and instructional technique--two of the same areas identified in the assessment eight years earlier. Respondent's response was to fault the principal's lack of science background and, to his assistant principal, call the man a "nigger" and the observation "bullshit." Not satisfied, Respondent then threatened the assistant principal, who was merely trying to schedule a CFR. Still not satisfied, Respondent engaged in an altercation with the principal. Three years ago, an assistant principal with a background in science observed Respondent and found several deficiencies. Even though he had been out of work for one year as medically unfit and even though the assistant principal had told him that the observation and evaluation would not go into his personnel file, Respondent's response was to tell her that, if he failed the next observation, she would have a problem. In the same month, Respondent gratuitously confronted students whom he thought to be in the ESE program, demeaned such students, laughed as a teacher tried to repair the damage that he had caused, and, when confronted privately by the teacher, told her to mind her own business and threatened her. This is misconduct in office, and this misconduct is so serious as to impair Respondent's effectiveness as a teacher in the school system.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing Respondent and terminating his contract. DONE AND ENTERED this 13th day of May, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 13th day of May, 2003. COPIES FURNISHED: Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Number 912 Miami, Florida 33130-1394 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Melinda L. McNichols Legal Counsel Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
