The Issue Whether the Respondent should be reassigned to the Opportunity School.
Findings Of Fact Alejandra entered Rockway Junior High on March 19, 1984. Prior to entering Rockway, Alejandra had been an attendance problem at her former school. Three days after starting at Rockway, on March 21, 1984, Alejandra was picked-up for truancy. On April 9, 1984, Alejandra was again truant and was placed in the indoor suspension program. On April 10, she was warned about her behavior in the indoor suspension program, and on April 11, she was caught smoking cigarettes. On April 12, she disrupted indoor suspension and, therefore, was suspended from school. Her father was contacted concerning Alejandra's behavior. On April 23, 1984, a conference was held with Alejandra's father. At that time he explained that he had only had temporary custody of Alejandra and that Alejandra was again living with her mother. It was determined that the mother did live in the Rockway Junior High district and that Alejandra should transfer to West Miami Junior High School. On April 24, 1984, Mr. Plate found Alejandra on the school grounds. Mr. Plate initially testified that Alejandra was "trespassing" on school property because she was still suspended from school. He later changed his testimony because the suspension was for 10 days and the last day of the suspension was April 22, 1984. Mr. Plate testified that he saw Alejandra in the late afternoon and she was not appropriately dressed for class. Mr. Plate told Alejandra that she should have her mother come to the school and fill out the forms necessary to accomplish Alejandra's transfer. He also informed Alejandra that she no longer belonged at Rockway and she should not return. At no time did school personnel verify that Alejandra was living with her mother or verify the mother's address. Mr. Plate thought that the visiting teacher had been sent to the home, but he did not know whether contact had ever been made with Alejandra's mother. On May 21, 1984, Alejandra was referred to HRS because of her truancy, and on June 22, 1984, she was recommended for transfer to Opportunity School. Alejandra's last day in school was April 12, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered disapproving the assignment of the Respondent to the opportunity school program at Youth Opportunity School South and assigning the Respondent to the appropriate regular school program. DONE and ENTERED this 16th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985 COPIES FURNISHED: Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary and Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida 33137 Phyllis Douglas, Esq. 1410 N.E. 2nd Avenue Miami, Florida 33132 Madelyn P. Schere 1410 N.E. Second Avenue Miami, Florida Mr. and Mrs. Julio Guerra 3331 S.W. 90 Avenue Miami, Florida 33165 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Introduction At all times relevant hereto, respondent, Michael A. Graham, was a middle school teacher at West Miami Junior High School (WMJHS) in Miami, Florida. He is under a continuing contract as a teacher for petitioner, School Board of Dade County (Board). He has been an employee in the school system since 1975 and a full-time teacher since 1981. Graham holds bachelor and master degrees from the University of Miami and is currently taking course work at Florida International University towards a second master's degree. On January 12, 1988 the Board voted to suspend Graham without pay for thirty days effective January 20, 1988 for "just cause and misconduct in office." On July 1, 1988 the Board issued a Notice of Charges containing six counts of alleged misconduct. 1/ The charging document alleged that respondent failed to disclose on his job application dated September 24, 1981 that he had been previously arrested on numerous occasions, (b) intentionally exposed a student, I.M., to unnecessary embarrassment, (c) intentionally exposed a student, V.E., to unnecessary embarrassment or disparagement, (d) intentionally committed a battery on U.C., a student, (e) continually and intentionally refused to discontinue uttering profane and/or vulgar language in his classroom during school years 1985-86, 1986-87 and 1987-88, and (f) continually and intentionally refused to discontinue excessive tardiness and excessive absences during the same school years. These charges will be taken up separately below. Filing A False Application (Counts I and II) During the course of his employment with the Board, Graham has filled out various applications and other informational forms. Relevant to this proceeding is an application for an instructional position filed with the Board on September 24, 1981. The application asked the following question: Have you ever been convicted of anything other than minor traffic violations? Graham responded in the negative. Sometime after Graham filed the above application, the Board had an occasion to run a background check on him. Among other things, the Board uncovered the fact that Graham had been arrested on February 29, 1976 for resisting an officer without violence to his person and disorderly conduct, both misdemeanors. The first charge was nolle prossed while Graham was found guilty of the second charge and received a suspended sentence. Certified copies of these records have been introduced into evidence as petitioner's exhibit 10. Although petitioner did not introduce into evidence certified copies of other arrests, there was testimony, without objection, that Graham had been arrested for the following charges: 12/17/71 - public drunkenness 6/05/74 - theft 5/14/76 - worthless checks 4/08/77 - "warrant arrests" 5/18/77 - worthless checks 9/11/79 - worthless checks 9/17/81 - aggravated battery 11/05/82 - worthless checks 2/21/86 - worthless checks During a conference with a school administrator on August 21, 1987, Graham acknowledged that, with the exception of the May 14, 1976 arrest which he did not remember, and the April 8, 1977 matter which he stated involved a voluntary return on his part to the State of Indiana, all other arrests occurred. However, there is no evidence that Graham was convicted of any of these charges, and his testimony that all charges were later dropped was not contradicted. At hearing Graham explained that he thought the question concerning prior arrests on the employment application meant whether his civil rights had ever been taken away. Since they had not, he stated he believed his negative answer was appropriate. Exposing Students to Embarrassment or Disparagement (Counts III and IV) It is alleged that in school year 1986-87, respondent exposed I.M., a seventh grade female student, to "unnecessary embarrassment or disparagement." The student did not appear at hearing but gave post-hearing deposition testimony. As clarified at hearing, this charge stems from alleged off-color remarks about I.M.'s clothing made by Graham to I.M. in front of the class. I.M. was a student in Graham's history class in school year 1986-87. While in class on May 11, 1987, I.M. left her desk to go to the restroom. She was wearing tight fitting pants. When she returned, Graham remarked in a loud voice, and in front of the class, that her pants were so tight he "could see her crack and count the hairs." Graham also made her perform a "fabric test" to ascertain whether she could pinch the cloth on the pants without pinching her skin. If I.M. pinched both skin and cloth, this confirmed that the pants were too tight. After Graham made his comments and required I.M. to take the "fabric test," I.M. became embarrassed, felt "cheap," began crying and left the room. She reported the incident to her counselor and prepared a written statement which is attached to her deposition. Also, she described the incident to a school investigator the same day, giving essentially the same version of events described above. This account is deemed to be more accurate and credible than a slightly different version of events given by I.M. by deposition some fifteen months later. Graham recalled the incident differently. According to his recollection, when I.M. returned from the bathroom to the classroom, he told her she had "inappropriate clothing," and if she disputed this, she would be given a hall pass to visit the principal. If the principal approved the pants, she could wear them to school. Otherwise, Graham told her not to wear them to his class in the future. Graham contended also that he said "Your clothing is too tight around the hips and crotch" and denied using the words "hairs" or "crack." He conceded he may have asked her to perform a "fabric test." However, this version of events is not deemed to be credible and is hereby discredited. Student V.E. is a fundamentalist Christian who was in Graham's American History class for the first three days of school year 1987-88. On the first or second day of class Graham gave a class assignment requiring the students to use the Bible as a historical reference but to explain the story without the (i ideas of miracles and deity. V.E. understood this to mean that she was to "take all miracles" out of the story and to "not have God in it." During class that day, V.E. asked a question about a Bible parable being discussed by Graham and, after she gave the biblical version of what happened, Graham asked her if she believed in magic. V.E. felt "bad" and "intimidated" by Graham's question. When she went home that evening, V.E. told her mother about the class assignment. The mother was upset and prepared a letter for Graham and the assistant principal questioning the subject matter of the assignment. V.E. was told by her mother to hand carry a copy of the letter to Graham the next day. Before she could do this, the assistant principal told Graham that V.E.`s mother had sent a letter. When she entered the classroom the next day, V.E. was asked by Graham if she had a letter for him. After being handed the letter, Graham asked V.E. why she told her mother about the assignment and added "I'm pissed." This episode took place in front of the entire classroom. This caused V.E. to be very "upset" and "embarrassed." She immediately transferred out of Graham's class. Graham countered that there was no "homework assignment" per se and that he was merely seeking to obtain "critical thinking" from his students. According to Graham, his discussion was consistent with the approved curriculum and was intended to have the students reconcile biblical stories with other theories of evolution of men. Graham believed that V.E. had misunderstood the discussion as being an attack on religion when in fact it was not. He added that, of all the students, only V.E. reached that erroneous conclusion. He conceded that he "may have" used the words "I'm pissed" but contended that he was justified in questioning her in front of the entire classroom because students frequently hurried off to other classes once the end-of-period bell rang. Battering Urbano (Count IV) In school year 1986-87, Urbano was a fifteen year old male student. He has since departed the state. It is alleged that Graham committed battery on Urbano. According to Graham, who gave the only eyewitness account of the entire fray, Urbano was still a student when the incident occurred but was in the process of withdrawing from school and moving to California. Urbano had been in several classes taught by Graham and had a history of disruptive conduct. Urbano returned to the campus one day to speak with a girlfriend who was in Graham's classroom. Urbano entered the classroom during a change in classes. Not wanting a confrontation, Graham requested the girl to ask Urbano to leave. When she did this, Urbano began cursing Graham and slowly backed into the hallway outside of Graham's classroom. As Graham attempted to close his door, Urbano blocked the door and pushed Graham who responded by pushing Urbano out of the doorway. Urbano then threw a four pound textbook into Graham's chest. After Graham asked Urbano to follow him to the principal's office, Urbano drew back his fist to strike Graham. At that point, and in self-defense, Graham struck Urbano with a blow to the side of his face. In retaliation, Urbano threw a karate kick into Graham's left knee. Graham followed by administering a second blow to Urbano's face. A female physical education teacher then approached the melee, grabbed Urbano on the shoulder and escorted him to the principal's office. According to Graham, Urbano was immediately suspended from school. This was not contradicted. There is no evidence that Graham was criminally charged with battery or disciplined by the school for the incident. Using Profane and Vulgar Language in Class (Count V) It is charged that in school years 1985-86, 1986-87 and 1987-88 Graham was given direct orders to discontinue "uttering profane and/or vulgar language while in the performance of assigned duties as a classroom teacher," and that respondent "continually and intentionally refused to discontinue" doing so. The allegations stem from disciplinary action taken in the fall of 1985. On October 17, 1985 respondent participated in a conference for the record with WMJHS principal Kavenaugh for using "very salty language" in the classroom. Neither Kavenaugh or Graham could recall what words were actually used by Graham. As noted in finding of fact 11, Graham used the words "I'm pissed" while talking to student V.E. in September, 1987. About the same time, he recited a "parable" in V.E.'s class which went generally as follows: A large flock of birds immigrated south one winter but one bird's wings froze, and it fell to the ground. A horse came along and deposited cow shit on the bird. Although the cow shit did not smell good, it kept the bird warm. A cat then came upon the fallen bird, wiped the cow shit off of its wings and ate it. The moral: not everyone who shits on you is your enemy, and not everyone who does you a favor is your friend. Graham acknowledged reciting the above story in class but claimed he used the word "chip" instead of "shit." However, V.E. stated she heard the word "shit," and this version of the events is accepted as being more credible. Principal Kavenaugh gave some vague testimony about other incidents of vulgarity but could not give specifics as to when this occurred or what was said. Other than the order to quit using "very salty language" in October 1985, there is no evidence of any other orders given to Graham by a principal or administrative officer directing him to refrain from using vulgarity or profanity. Excessive Tardiness and Absences (Count VI) The notice of charges alleges that in school years 1985-86, 1986-87 and 1987-88 Graham was "given direct orders to discontinue his excessive tardiness and/or excessive absences," and that he "continually and intentionally refused to discontinue" doing so. Assistant principal Sotolongo authored memoranda to respondent on May 27, 1986 and March 25, 1987 regarding class absences. The first concerned respondent sitting in the teacher's lounge ten minutes after class had started on May 23, 1986. For this infraction, Graham received a reprimand. The assistant principal stated that Graham was "periodically" absent from class but could not recall the number of times this occurred or the dates of such absences. The second memorandum was prompted by Graham being absent from school during the afternoon of March 24, 1987. Graham's explanation of having to see a doctor for a workers' compensation injury was not accepted as being satisfactory. Principal Kavenaugh authored a memorandum on May 6, 1986 concerning punctual attendance by Graham. The memorandum was prepared after Graham had been late to school at least ten times between January 10, 1986 and May 5, 1986. Respondent promised to make an "extra effort" to comply with attendance requirements. There is no evidence that, after the May 6, 1986 memorandum, Graham was late for school or that he refused to comply with attendance requirements. Miscellaneous Graham was told by principal Kavenaugh on one occasion "to be courteous and free of sarcasm" while teaching his students. This order was memorialized in a memorandum dated June 19, 1987. There is no evidence he disobeyed this order. On November 10, 1987 Graham was placed on prescription for one item of performance. This meant he had to correct a deficiency in professional performance and responsibilities. The prescription was prompted primarily by the V.E. incident and the parable given in the history class, both occurring in September, 1987. There is no evidence that Graham did not fulfill the terms of the prescription. According to Dr. D. Patrick Gray, who was accepted as an expert in professional ethics, performance appraisal and professional or personnel management, Graham violated the teachers' code of ethics by intentionally exposing a student to unnecessary embarrassment or disparagement, unreasonably denying a student access to a diverse point of view, and failing to keep the confidence of personally identifiable information concerning a student. He opined further that, given respondent's conduct as described in the Notice of Charges, Graham's effectiveness as a teacher had been seriously impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of those charges in Counts I and II and a portion of Count III. All others should be dismissed. Respondent should also be suspended without pay for thirty days as proposed by the agency in its suspension notice effective January 20, 1988. DONE AND ORDERED this 19th day of September, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1988.
The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of August, 2015.
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
The Issue Whether or not the Respondent student, Rommel Luis Montes, should be assigned to the J. R. E. Lee Center, an opportunity school.
Findings Of Fact Respondent Rommel Luis Montes, age fifteen, was a student at Riviera Junior High School (Riviera) in Dade County, Florida, during the school years 1984-85, 1985-86, and 1986-87. During the 1984-85 school year Respondent's academic performance was very poor. He received five failing grades, passing only the subject of physical education with the grade of C. Also his ratings for effort during the four marking periods of that year were poor. The result of Respondent's lack of effort and poor academic performance was his not being promoted to the next grade. During the 1985-86 school year Respondent's academic performance was also poor. During that year he received poor ratings for effort, a D as a final grade in five subjects and the grade of F in two subjects. Respondent did not improve his academic performance during the 1986-87 school year. During the first grading period of that year, Respondent received grades of F in three subjects, grades of D in two subjects and one incomplete grade which subsequently was changed to an F. As before, Respondent's rating for effort was poor. Mrs. Carol Ann Golden, a math teacher, had Respondent as a student during the first marking period of the 1986-87 school year. While enrolled in that class, Respondent refused to do any work. Most of the time he would come to class without materials, he would rarely do homework and less than 10 percent of the time did he perform any class work. He had unexcused latenesses and out of forty-five school days he was absent twenty. In efforts to discourage tardiness, Mrs. Golden would issue detentions to Respondent (requiring him to stay in school after hours), but he would either serve them late or not at all, in defiance of school personnel authority. Those times when Respondent was issued indoor suspensions (CSI) as a disciplinary measure, he would refuse to do any work. Mrs. Deanna A. Villalobos, a history teacher at Riviera, also had Respondent as a student during the 1986-87 school year. Here again Respondent's behavior was the same: he would come to class without materials 70 percent of the time, hardly did any homework, performed approximately 5 percent of the work assigned in class, had approximately twenty absences (including one instance when he failed to return to class after lunch), was frequently tardy, would spend his time day dreaming and looking out the window, and as a result failed all the history tests administered. Respondent was also issued detentions by Mrs. Villalobos which he failed to serve. It is the practice at Riviera for teachers and school administrators to submit written reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms (SCMRF) and are generally reserved for serious behavior problems. Mrs. Golden and Mrs. Villalobos each issued two SCMRFs on Respondent regarding, inter alia, his total lack of interest in school and failing grade average. In addition Respondent received five other SCMRFs from a different teacher. In addition to Respondent's lack of interest in school, these reports also complained of his skipping class, excessive talking in class, leaving class without permission, and simply refusing to do any work in class. As a counselor at Riviera, Mrs. Waizenhofer worked on a weekly basis with Respondent. From her testimony it was apparent that Respondent, although not a bad kid, was disinterested in school and was not responding to the various techniques used by teachers, counselors and administrators to make students more interested and improve their academic performance. During one counseling session Respondent, while in tears, promised Mrs. Waizenhofer to improve his school effort just a little. Twenty minutes later, Respondent was caught cutting class. One attempt at interesting Respondent in school, was to place him in the work experience program at Riviera. This consisted of securing employment for Respondent at Burger King on a part-time basis. Respondent was not able to hold the job for more than two weeks and he failed the program. Mrs. Thomas, assistant principal, and Mrs. Waizenhofer had numerous conferences with Respondent's mother. The parent, however, was not able to cause a change in Respondent's attitude toward school. It was recommended to both Respondent and his parent that assistance be sought at different community agencies, which could provide specialized counseling services at little or no cost. Despite the efforts made by the school administrators, no change was noted in Respondent. At Riviera, like other schools with regular school programs, the average number of students in a class is about thirty. Such schools are not geared to address peculiar student needs or provide individual students with continuous special attention. By contrast, at an opportunity school, such as the J. R. E. Lee Center, the ratio of teachers to students is about nine-to- one, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The expert opinions of both Mrs. Thomas and Mrs. Waizenhofer was that the more structured environment at an opportunity school would be better for Respondent, as opposed to permitting him to remain in a regular school program where he was making no progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order affirming the assignment of Respondent Rommel Luis Montes to the J. R. E. Lee Center. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0294 Petitioner's proposed findings of fact 1-12, have been adopted in paragraphs 1-12, respectively. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Estrella Montes 10030 Southwest 43rd Street Miami, Florida 33165 Dr. Leonard Britton, Superintendent Dade County Public Schools The School Board of Dade County, Florida 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building, Suite 301 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact At all times relevant thereto, Respondent, Rolando Rodriguez (Rolando), was a student at Palm Springs Junior High School (Palm Springs) in Dade County, Florida, during school years 1983-84 and 1984-85. The school is under the jurisdiction of Petitioner, School Board of Dade County (Board). Rolando was born in Cuba on August 15, 1970. He and his mother came to the United States in 1980. His father remains in Cuba. Rolando enrolled in the fourth grade of the public school system in Dade County in 1980. Because of language difficulties, he was initially given some special assistance by his teachers. Even so, his school progress record, received in evidence as exhibit 2, reveals he repeated at least a part of the fifth grade due to academic problems. There is no evidence that he received bilingual education services from the public school system. While attending the sixth grade at Palm Springs in 1983-84, Rolando had isolated instances of misconduct during the first half of the school year. This included "disruptive behavior," "cutting class," and "assault and battery." He was given reprimands and warnings, and several conferences were held by school officials with Rolando and his mother. This is confirmed through testimony of witness Sweet and corroborated by Petitioner's exhibit 1 received in evidence. This exhibit is a copy of a computer print-out reflecting Rolando's case management history. It is not clear how the entries therein were prepared, or, whether the school personnel who observed the "incidents" gave the information directly to the computer program operator, or to another person who then summarized it for the operator. In any event, there is no documentation or the oral testimony evidencing any misconduct from January 1984 until the end of the school year. Rolando was then promoted to seventh grade even though he had done poorly in a number of subjects. Beginning in September 1984, Rolando's case management history (exhibit 1) reflects a series of actions which culminated in reprimands, warnings and being placed on probationary status. However, these entries on the computer print-out are hearsay in nature and the only witness appearing on behalf of Petitioner had no personal knowledge of the events. Indeed, the witness could not relate the details or circumstances surrounding the "incidents," but relied wholly on what she had been told by other school personnel, or what the computer print-out stated. Accordingly, there is no competent evidence concerning Rolando's alleged misconduct for school year 1984-85. Finally, exhibit 2 contains Rolando's grades from school year 1980-81 through school year 1983-84, but omits reference to the grades received in school year 1984-85. However, Rolando acknowledged he received at least one "F" during the year and that his overall grades were "not good." On June 26, 1985, Petitioner advised Respondent's parents that he was being reassigned to Jann Mann Opportunity School-North effective immediately because of Rolando's "disruption of the educational process in the regular school program and failure to adjust to the regular school program." It was not disclosed who participated in the decision or what specific information, other than that contained in exhibit 1, was considered in determining that reassignment was appropriate. During the first half of the school year 1983-84, the faculty and administration of Palm Springs attempted to help Rolando through parent and student conferences, developmental group counseling, a child study team, home units and employability skills instruction. Although exhibit 1 reflects similar assistance in 1984-85, there is no competent evidence to verify and confirm these hearsay declarations. Rolando is now attending Jann Mann, which is approximately thirty minutes from his home by bus. Both he and his mother desire a reassignment to Palm Springs because of its proximity to their home. Rolando acknowledged some of his disciplinary problems and specifically recalled three visits to the principal's office, but pointed out that he was unfairly charged with many other infractions even though he was merely an observer to and not a participant in these incidents. He stressed that where teachers have taken the time to provide extra assistance, he has done well in class, but fares poorly where the teacher does not provide such assistance. He views his reassignment to Jann Mann as a learning experience, and now wishes to return to his former school. Even though he testified in English, he attributes a part of his academic problems to a limited proficiency in the English language. Rolando's mother also acknowledged that she was notified on "several" occasions about Rolando's conduct. The dates of such notifications and the specific nature of his problems were not disclosed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be immediately reinstated to a traditional school program. DONE AND ORDERED this 13th day of November 1985, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building/ 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1985.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, 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 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issue to be determined is whether Respondent violated the Principles of Professional Conduct for the Education Profession in Florida as alleged in the letter from Duval County School Board dated May 25, 2017; and, if so, the appropriate disciplinary action.
Findings Of Fact Background Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Duval County, Florida. Art. IX, § (4)(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Ms. Stripling-Mitchell is a teacher covered by the Collective Bargaining Agreement (“CBA”) between Duval Teachers United and the Duval County School Board for 2014-2017. At all times material to this matter, Respondent was a teacher assigned to Hyde Grove. During the 2016-2017 school year, Respondent was assigned to teach second-grade students. As a classroom teacher, Respondent was expected to comply with the 2016-2017 staff handbook which required staff members to strive to achieve ethical conduct and to familiarize themselves with the Code of Ethics. Teachers are trained to avoid touching students aggressively and to avoid leaving students unsupervised. The staff handbook provides that students should not be left unsupervised in a classroom or other area. The policy also provides that no student should be sent to the playground without teacher supervision. Ms. Sapp, the principal of Hyde Grove, provided training to the staff during pre-planning training and orientation week. One of those trainings was on Ethics and Professionalism. The training in-service record reflects that Respondent completed the training. During the training, Ms. Sapp provided guidelines for interaction with students and demonstrated the training principles. To avoid aggressive touching of students, she gave examples as follows: “[i]f a student falls down to the floor, pouting, as children would do, . . . basically ask for them to get up, but, rule of thumb, just not to put your hands on the student.” Ms. Sapp testified that teachers could exercise various strategies to diffuse a situation with a student engaged in disruptive behavior. Teachers are trained to create distance between the child who is being disruptive and the adult, until someone else could remove that child. Another strategy is to transfer the disruptive student to the partner-teacher for time- out. A teacher could also send the classroom partner for help or call the administration for assistance. Ms. Stripling-Mitchell testified that her partner-teacher, Ms. Hinton, was absent on the day of the incident so she did not use that strategy. However, Ms. Stripling-Mitchell did not otherwise use any of the suggested strategies during the incident with the student. The facts that serve as the basis for this case occurred in April 2017. On April 20, 2017, at approximately 2:45 p.m., classes were preparing for afternoon dismissal. At around the same time, Ms. Jones, the Team-Up instructor arrived at the classroom she shared with Ms. Stripling-Mitchell. Team-Up is an after-school program that provides academic enrichment, arts and crafts, and homework assistance. The Team-Up program operates from 2:55 p.m. until 6:00 p.m. each day. As she entered the classroom, Ms. Jones saw Ms. Stripling-Mitchell talking to students to prepare them for dismissal. The students were working on the iReady program using laptops. Respondent was working with three students who were seated in the back left corner of the classroom. Ms. Jones noticed that J.K. was being noncompliant with Ms. Stripling- Mitchell’s requests to continue working on the iReady program. As a result of the disruptive behavior, Ms. Stripling- Mitchell directed the student to return his laptop to the laptop cart and leave her classroom. The student continued to be disruptive and stated that he was not going to leave. Ms. Jones heard Ms. Stripling-Mitchell say, “[l]et me help you out with it,” and Ms. Stripling-Mitchell led the student by his left arm to the front of the classroom. Ms. Jones also heard the student say, “[n]o. I didn’t do anything. Get your hands off me.” While the student walked with Respondent side by side, he continued to resist. When the two arrived at the front of the classroom, the student turned and faced Respondent. Ms. Stripling-Mitchell bent over toward the student’s face. Her face was a few inches from the student’s. Ms. Jones saw Ms. Stripling-Mitchell pointing and waving her finger in the student’s face while saying, "[w]hat did your mother tell you? Didn't she tell you to respect me? I'm going to call your mother and she's going to beat your butt." Ms. Jones testimony about this statement is different in her written statement, which states, “[M]s. Stripling-Mitchell said, What did your mother tell you about being disruptive? What did your mother tell you about being disrespectful to me? I am going to call your mother and tell her everything you have done here today so she can get on your butt!” Ms. Jones was at the back of the room, near the sink, on the opposite side of the room from Ms. Stripling-Mitchell and the student. Although the statements are different, the difference is of minor significance. The evidence demonstrates that Ms. Stripling- Mitchell threatened to call the student’s parent while she and J.K. were at the front of the classroom and in front of other students. The student in turn yelled at Respondent to get out of his face. At the same time, he raised the laptop above his head and swung it at Ms. Stripling-Mitchell. Respondent blocked the laptop and took it from the student. The student then attempted to punch Ms. Stripling-Mitchell. She dropped the laptop and blocked his punch. Although Ms. Jones witnessed the events, she had not intervened to assist Ms. Stripling-Mitchell at this point. Ms. Jones contacted the administration office two times, but the teachers did not receive assistance in the classroom. After Ms. Stripling-Mitchell struggled with the student, she restrained him against one of the two dry-erase boards using her hand and forearm. Ms. Stripling-Mitchell was directly facing the student with her back to the classroom, and the student’s back was against the dry-erase board. Ms. Jones testified that Ms. Stripling-Mitchell and the student continued to argue and they moved along the dry-erase board laterally, for approximately eight feet. Ultimately, Ms. Jones separated Ms. Stripling-Mitchell and the student. Ms. Jones walked the student to Ms. Sapp’s office. During the walk to the principal’s office, the student complained of shortness of breath and was breathing heavily. Ms. Sapp was notified that a student was in her office and there was an issue she needed to address. Ms. Sapp testified that when she initially saw the student, he was crying, huffing and puffing, and breathing hard. When Ms. Sapp asked what happened, the student told Ms. Sapp that Ms. Stripling-Mitchell placed her hands around his throat and that he could not breathe. After J.K. told his account of the incident, Ms. Stripling-Mitchell arrived in the office. Ms. Sapp then met with J.K. and Ms. Stripling-Mitchell. During the meeting, J.K. repeated that Ms. Stripling-Mitchell choked him. Ms. Stripling- Mitchell interrupted J.K. and engaged him in reenactment of the incident. The reenactment consisted of Ms. Stripling-Mitchell demonstrating how she restrained the student using her hand near his neck. Ms. Sapp then stopped the reenactment and asked the student to wait outside her office. Ms. Sapp told Ms. Stripling-Mitchell she should not touch the children, and Ms. Stripling acknowledged in agreement this was the school policy. Ms. Sapp testified that it was unacceptable for Ms. Stripling-Mitchell to instruct the student to leave her class and go sit at the picnic bench without supervision. Ms. Sapp finished her meeting with Ms. Stripling- Mitchell, and Ms. Stripling-Mitchell returned to her classroom. Before Ms. Sapp met with J.K. and Ms. Stripling- Mitchell, she contacted the Office of Professional Standards for guidance regarding the appropriate next step. Ms. Sapp was advised to obtain statements regarding the incident. Ms. Sapp later asked Ms. Jones to send students who had knowledge of the incident to her office. After speaking with the students, Ms. Sapp asked the students to write statements about the incident as requested by the Office of Professional Standards. The statements were provided to the investigator conducting the investigation of the allegations, Mr. Gregory. Mr. Gregory collected the written statements and interviewed five students the day following the incident. Overall, the students provided varied descriptions of what happened. Mr. Gregory also conducted an interview of Ms. Jones, a portion of which occurred in the classroom, and requested that she provide a written statement. In addition to obtaining witness statements, Mr. Gregory researched Ms. Stripling-Mitchell’s discipline history. He discovered that Ms. Stripling-Mitchell had been the subject of prior investigations that resulted in disciplinary action. On May 18, 2012, Ms. Stripling-Mitchell was investigated for use of profanity, demeaning, and derogatory communication directed toward employees. She was issued a written reprimand, a Step II disciplinary action. In December 2016, Ms. Stripling-Mitchell was involved in an incident with a different student that is of direct relevance to this proceeding. In that incident, a parent complained about Ms. Stripling-Mitchell’s interaction with their child. It was determined that during an interaction with a disruptive student, Respondent pushed that student to the floor and verbally reprimanded him in front of other students. The incident resulted in the child being subject to embarrassment and physical aggression. On January 9, 2017, Ms. Stripling-Mitchell was issued a written reprimand, her second Step II disciplinary action. Ms. Stripling-Mitchell was also directed to seek assistance from the Employee Assistance Program (“EAP”) to obtain training on strategies for deescalating situations. After the interviews and review of the statements, Mr. Gregory concluded that Ms. Stripling-Mitchell used inappropriate physical contact with J.K. by restraining him against the wall with her hand and arm against his throat, after J.K. swung the laptop at her. Although not specifically alleged in the Notice, there was a dispute whether the student was choked. Ms. Jones testified that Ms. Stripling-Mitchell choked the student during the incident. However, she did not mention choking in her written statement. At hearing, Ms. Jones was confronted with a text message addressing that issue. The texts were as follows: Ms. Stripling-Mitchell: I was told that Ms. Timberlake planned or plans to call DCF or someone since J.K. told her I choked him that why he tried to hit me. LIES!! Ms. Jones: What!!! That’s a freaking lie!!! You did not choke him!!! Ms. Jones’ testimony regarding Ms. Stripling-Mitchell choking J.K. was not credible. There was also a dispute regarding whether Ms. Stripling-Mitchell raised her fist toward the student. Ms. Jones testified Ms. Stripling-Mitchell raised her fist and threatened to strike the student. Ms. Jones did not mention this allegation in her written statement provided days after the incident. Ms. Jones also did not mention this alleged observation when Mr. Gregory interviewed her. Ms. Stripling- Mitchell testified that she did not raise her fist to strike J.K. The student provided a statement describing the incident in his own words. He indicated that Ms. Stripling- Mitchell placed her hand on his neck. There was no reference in the student’s statement that Ms. Stripling-Mitchell tried to punch him. Several other students provided written statements which also did not include any indication that Ms. Stripling- Mitchell raised her fist toward the student. The undersigned finds no credible evidence that Ms. Stripling-Mitchell raised her fist to strike the student. There was much discussion at hearing regarding the description and behavioral history of the student. Ms. Jones described the student as a seven-year-old, scrawny boy, standing at four feet, nine inches. She also stated that the student could be sweet, but could be provoked “if things don’t go his way, if you threaten him or when the children . . . play a game called “the dozens.”2/ Ms. Stripling-Mitchell, on the other hand, described the student as routinely disruptive and noncompliant with staff. Between October 2016 and April 2017, J.K. engaged in conduct that resulted in six referrals. The referrals involved pushing another student, attempting to trip a student multiple times, stabbing a student in the arm with a pencil, and fighting. There were no referrals that involved a confrontation with a teacher. Ms. Stripling-Mitchell provided her account of the incident at hearing. Ms. Stripling-Mitchell testified that she became the student’s teacher in August 2016. Shortly after he became her student, she became aware of his disruptive behavior. Ms. Stripling-Mitchell had a practice of telling J.K., “[I]’m going to call your mom if you don’t settle down,” to encourage him to stop engaging in inappropriate behavior. On April 20, 2017, Respondent was working with three students on the iReady system when she heard someone say “[t]he folder hit me.” When she approached a group of three boys, including J.K., one student said, “J.K. just hit me with a folder.” Ms. Stripling-Mitchell instructed the boys to get back to work. Before she returned to her seat, she heard someone say “Stop.” She then returned to J.K. and told him, “[y]ou’re going to need to go sit on the picnic table.” J.K. agreed to return to the iReady activity. However, a short time later, Ms. Stripling- Mitchell heard a loud yell from one of the boys at J.K.’s table. Ms. Stripling-Mitchell then repeated to J.K., “[y]ou’re going to have to leave.” Ms. Stripling-Mitchell recalls that Ms. Jones arrived and sat at a table in the opposite corner of the room and began changing her shoes. During this time, Ms. Stripling-Mitchell continued to engage in a back-and-forth exchange with J.K. Similar to Ms. Jones’ account of the incident, J.K. swung the laptop at Ms. Stripling-Mitchell and she blocked it. Then, J.K. tried to punch her, which she also blocked. Ms. Stripling-Mitchell testified that after she blocked his punch, J.K. continued to attack her by trying to throw her to the floor. She testified that she had to restrain him against the dry-erase board to avoid falling. It is disputed whether the student continued to attack Ms. Stripling-Mitchell after she took the laptop and blocked his punch. Ms. Jones testified the student was not attacking Ms. Stripling-Mitchell, but rather he was trying to get away while Ms. Stripling-Mitchell was restraining him. On the other hand, Ms. Stripling-Mitchell testified that the student was trying to “flip” her, which is why she restrained him. The undersigned finds Ms. Jones’ testimony more credible. After J.K.’s failed attempt to punch her, there was no evidence of a threat for which Ms. Stripling-Mitchell needed to defend herself. Even if there was a threat, Ms. Stripling- Mitchell inappropriately touched J.K. by restraining him against the dry-erase board using her hand against his neck area. Ultimate Findings of Fact Overall, the credible evidence demonstrates that Ms. Stripling-Mitchell restrained the student against the dry- erase board using her hand near his neck. Ms. Stripling-Mitchell exercised poor judgment when she told the student that his mother was going to discipline him at home for his behavior in front of other students. Ms. Stripling-Mitchell exercised poor judgment when she instructed the student to leave her classroom to sit at the picnic bench.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order sustaining the Step III written reprimand and suspension without pay disciplinary action imposed against Respondent, Stephanie Stripling-Mitchell, as an instructional employee of the School Board. DONE AND ENTERED this 12th day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 12th day of December, 2017.
The Issue The ultimate issue in the instant case is whether Respondent should be reassigned from the Dade County School Board's Students at Risk Program at Riviera Middle School to its disciplinary program at J.R.E. Lee Opportunity School.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is 14 years old. He was born in Cuba. Since his arrival in the United States he has lived in Dade County and attended public school. From the middle of December of 1992, until the reassignment that is the subject of the instant controversy, Respondent was a seventh grade student at Riviera Middle School (hereinafter referred to as "Riviera"), a public school operated by the School Board. Prior to enrolling as a student at Riviera, Respondent attended another School Board-operated middle school. His academic performance at this other school was woeful. During the 1991-92 school year, he received a failing grade in every one of his seventh grade classes, except one, his chorus class, in which he received a D. He thus had to repeat the seventh grade the following school year. Respondent's academic performance failed to improve during the first part of the 1992-93 school year. Riviera has a special program for students who are deemed to be at risk of dropping out of school. The program is called the Students at Risk Program or "SARP." The 85 to 100 students in "SARP" are given more individualized instruction and attention in a smaller class setting than are students at the school who are not in the program. Upon enrolling at Riviera, Respondent was assigned to "SARP." Despite the efforts of the administration at Riviera and his "SARP" teachers, Respondent's poor academic performance continued. Respondent was absent from school a considerable amount of time. When he did attend class, he often came unprepared, did little or no work and slept during the lesson. When he was awake, he frequently disrupted the class by doing such things as tapping on his desk or talking to his classmates. On one occasion, Respondent caused a commotion in class by drawing on his shirt. On another occasion, during a math lesson, he used white out to write on the floor near his desk. Still another time, when students in his math class were being tutored, Respondent pounded on the classroom door and continued to do so despite being told to stop by the teacher tutoring the students. In his physical education class, Respondent bullied smaller students. There was at least one instance where such bullying led to a fistfight during class between Respondent and another student, who was bloodied during the altercation. Respondent's disruptive classroom behavior interfered with his teachers' ability to provide instruction to Respondent and to the other students in the class. Valuable classroom time was wasted in attempting to deal with Respondent's misconduct. Respondent's disruptive conduct was the subject of various written referrals his teachers sent to the school administration. The discipline that Respondent received in response to these referrals included in-school suspension. Respondent, however, refused to meet the requirements of the in-school suspension program and therefore was sent home on outdoor suspension. This occurred on two separate occasions. Respondent's teachers counseled Respondent numerous times. They also met with his mother, who indicated that she would do whatever she could to help modify Respondent's behavior in school. The measures taken, however, were to no avail. Respondent's disruptive classroom conduct persisted. The resources available at Riviera to help modify Respondent's behavior having been exhausted, a decision was made to reassign Respondent to the School Board's disciplinary program at J.R.E. Lee Opportunity School (hereinafter referred to as "Lee"). Lee is better equipped than Riviera to deal with problem students such as Respondent. It has on staff more teachers and counselors per student than does even Riviera's "SARP." Furthermore, unlike Riviera, it has a full-time psychologist on staff. Respondent attended Lee for only approximately 12 or 13 days. His mother refused to allow him to return to the school because she was concerned about his safety. She had information that led her to believe that, in the short time that he had been at the school, he had been assaulted on three separate occasions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Dade County School Board enter a final order approving and upholding Miguel Aguero Lopez's reassignment to the disciplinary program at J.R.E. Lee Opportunity School. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993.
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.
Findings Of Fact Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway. Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students. Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations. In order to give Ms. West another fresh start, Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.” On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr. Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow E.M. to attend Ms. West’s class. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother. Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of October, 2009.
