Findings Of Fact Respondent is Lawrence J. Ferrara. He holds Florida teaching certificate number 150262, issued by the State of Florida, Department of Education. He is certified to teach social studies, grades 7-12. He has not been assigned to teach outside of this subject area at any time relevant to this proceeding. While Respondent's performance for the school years 1981-82 through 1985-86 is at issue in this proceeding, a review of his annual evaluations for the years 1966 to 1986 indicate a continuing problem in the control of students in the classroom and teaching effectiveness. Respondent was assigned to teach at John I. Leonard High School beginning with the 1970-71 school year and remained in this assignment until his suspension on February 19, 1986. John I. Leonard High School consisted of a 40 acre campus, 145 teachers, and about 2,200 students during the 1985-86 school year. Luke Thornton has served as principal of John I. Leonard High School since October 22, 1981. In dealing with employees, he follows guidelines set out in the collective bargaining agreement with the Classroom Teacher's Association. He is also guided by district school board policy, administrator's directives and the John I. Leonard High School Teacher and Student Handbooks. Thornton has several assistant principals, including "deans", who are authorized to counsel and reprimand employees. Deans are, however, primarily responsible for discipline of students and working with parents. Guidance counselors at the high school are also known as Senior High Counselors. They provide individual and group counseling to students, interpret test results and assist students in career planning. Guidance counselors may counsel other staff members when need arises. While designated department chairpersons within the school have authority to counsel with teachers in their respective departments, the chairpersons do not have the authority to reprimand or evaluate teachers. The chairperson for the social studies department at John I. Leonard High School is Catherine Thornton (no relation to the principal, Luke Thornton). As the chairperson, Ms. Thornton reviews lesson plans of all 16 teachers in the department to assure that objectives of the unified curriculum program are covered by the teacher. This action is mandated by the school board. Teachers are required to prepare lesson plans one week in advance. They must also prepare emergency lesson plans which can be used by a substitute teacher in the event the teacher is unexpectedly absent. Course assignments within the social studies department are recommended by the chairperson and reviewed by the assistant principal assigned to that task. The entire schedule is eventually approved by the principal. Textbooks are issued to each teacher within the social studies department by the chairperson. The teacher returns the books at the end of the semester or school year. If books are not returned, the teacher must collect the cost of the missing textbook from the student responsible for it. The 1981-82 School Year During the 1981-82 school year, Respondent was assigned three 9th grade American government classes and two 11th grade history classes. Respondent's hours of work, to accommodate this teaching schedule, were normally 9:45 a.m. until 5:15 p.m. In previous years, Respondent's assignment had been all 11th grade classes and his hours were normally 6:45 a.m. through 2:15 p.m. Shortly after the beginning of the school year, Luke Thornton became principal. Respondent sought to have his assignment changed by Thornton. The principal denied the request and told Respondent the subject would be revisited at the semester's end. At the end of the semester, Thornton again denied Respondent's request for change in course assignment due to disruption that would be caused in the master schedule, concerns about Respondent's performance, and what Thornton considered to be an excessive amount of failing grades received by students in Respondent's classes during the first nine weeks of the previous semester. During the fall semester, Respondent was absent on several occasions. After the refusal of his request at the end of the semester for a change of his teaching assignment, Respondent took a leave of absence for the entire second semester. During Respondent's absences in the 1981-82 school year, Mary Sandt substituted as the teacher of his classes. Lesson plans were available during the first semester. However, no lesson plans were provided for the second semester. Respondent did not provide any assistance to the substitute teacher in this regard, although testimony of Sandt establishes that other teachers normally provided such assistance. More than any other teacher during the 1981-82 school year, Respondent referred students from his classes to the deans for disciplinary reasons. The referrals were for minor infractions such as talking out of turn, sharpening pencils, and squeaking chairs. Sometimes he referred groups of students for discipline. Earl Higgs, a dean during this school year, discussed ways of handling minor infractions with Respondent. Higgs advised Respondent to review the John I. Leonard Handbook discipline provisions. Respondent was not responsive to these recommendations. Higgs was required to review class rules with Respondent's students on at least three occasions as a result of being called to the class by the Respondent because the class was out of control. Initially, Mary Sandt had some disciplinary problems with Respondent's classes during her substitute teaching for him, but the deans provided her with assistance in gaining control. Thereafter, she was able to control the students with only minor problems. Before referring students, Ms. Sandt attempted to resolve discipline problems in the class. If unsuccessful, she documented her action on a discipline referral slip. Respondent did not follow this procedure. Luke Thornton's first evaluation of Respondent following the 1981-82 school year noted Respondent had a considerable amount of discipline problems with 9th and 11th grade students. In addition, it was noted that students have "difficulty understanding his approach to teaching." Respondent's ineffective working relationship with associates and his failure to attend open house and graduation functions at the school were also noted. The evaluation reflected no areas of strength beyond the observation that Respondent "uses various methods and materials." The 1982-83 School Year The chairperson of the social studies department recommended that Respondent be assigned all 9th grade American Government classes for the 1982-83 school year. The recommendation was approved by Assistant principal Shirley Jackson and by Luke Thornton, the principal. Respondent felt "absolutely demoralized, devastated and dehumanized" and worthless in the eyes of fellow teachers as a result of his assignment to teach 9th grade. The 1982-83 school year produced numerous complaints about Respondent's teaching. His teaching technique essentially consisted of giving students a text book reading assignment and have them answer review questions at the end of the chapter. Students completed these assignments in class time while Respondent read the newspaper or listened to the radio. Students cheated on many occasions in order to complete their work by passing answer sheets around the classroom while Respondent was present. Respondent sometimes gave lectures to his classes. Many times the lectures had nothing to do with the course content. Respondent discussed a lawsuit he had initiated against the school board without relating it to the lesson content. He repeatedly told his students they were immature, he hated them and he preferred to teach upperclassmen. Respondent would tell students to be quiet or find the answer in the book when they asked for assistance. Respondent called students names such as "jackass" and "jerk" in class. Students did not pay attention to Respondent because they found his classes boring. Respondent's general reputation among students was that he was not a good teacher; that he treated students in the same manner each year, and that he was "weird." Many of Respondent's students tried to transfer out of his class. Reasons given to Pat Konttinen a school guidance counselor, for requesting transfers included no motivation for students, inability to understand Respondent's lectures when he gave them, Respondent's failure to lecture on the subject matter, testing students on materials not covered in class, and that the class was boring. Ms. Konttinen discussed specific complaints of students with Respondent, but he did not change his teaching style. The testimony of students concerning the 1982-83 school year reveals that they have had no other teachers at the school who taught as poorly as Respondent. Respondent had the highest rate of textbook losses for the 1982-83 school year. During the first semester of the 1982-83 school year, Ms. Sandt again substituted for Respondent when he was absent. No lesson plans were available contrary to the requirement that such plans be provided. Respondent also failed to complete emergency lesson plans. Ms. Sandt wrote lesson plans and gave assignments when substituting because she had no idea when he would return. When Respondent did return, he threw assignments completed by the students in the trash because Sandt had not graded the work. Substitute teachers do not normally grade papers. The students felt the substitute teacher, Ms. Sandt, was a better teacher than Respondent. During Respondent's absences, Ms. Sandt experienced no discipline problems. Earl Higgs, in his capacity as dean, continued during the 1982-83 school year to receive numerous discipline referrals from Respondent. In each case, Higgs asked students for their side of the story and advised Respondent of actions taken on referrals. These referrals indicated that Respondent did not have proper control of his classes. Students were referred for minor disciplinary matters because Respondent did not want to handle problems on his own. Students who were referred for discipline by Respondent were either never previously referred by any other teacher, or, at most, referred one other time. Respondent continued to send groups of students to the dean. Sometimes the students would get out of control talking and laughing in class because "they could get away with it." On occasion, Respondent would shut the door to the classroom, close the windows and turn off the air conditioner as punishment for the class until the class was in control. On one particular occasion, Luke Thornton walked back to Respondent's room with four girls after they complained that Respondent would not open the room windows and the air conditioning was not working. On arrival at the room, Thornton found the room extremely hot. Respondent was wearing a sweater and the room windows were closed. The principal opened the windows to prevent students from passing out in the heat. Respondent improperly grabbed a student by the arm to discipline him during the 1982-83 school year. Bruises were left on the arm. After an investigation, Respondent was counseled concerning the incident. In his 1983 evaluation of Respondent, Luke Thornton noted that Respondent had knowledge and understanding of his subject matter, maintained an appropriate appearance, possessed appropriate educational qualifications and adhered to the defined duty day. The principal noted no other areas of strength. Numerous performance deficiencies were noted in a sheet attached to the 1983 evaluation form. Specific recommendations for improvement were cited. In regard to teaching technique, Respondent was informed he should vary methods of instruction. Consistency in discipline standards was noted as a way to improve classroom environment. Respondent was urged to strive to achieve rapport with peers and parents, as well as to timely submit lesson plans. Luke Thornton held several conferences with Respondent to discuss the deficiencies noted in the 1983 evaluation. Respondent was not receptive to suggestions. He complained of unfair treatment in course assignments and repeatedly discussed his lawsuit against school officials. Respondent continued to maintain he was better suited to teach 11th graders, although he was certified to teach 9th and 11th graders. The principal told Respondent to be responsible to his students regardless of other personally perceived problems. He also told Respondent that he should work to improve performance. While there is no significant technical difference in teaching either 9th or 11th grade, there is a difference in maturity levels of the students in each grade. Such a difference in maturity levels requires a difference in teaching style. Pat Martin, a guidance counselor, testified that ninth grade boys "get a little antsy" and have to be motivated by the teacher. This testimony was corroborated by Assistant Principal Earl Higgs who preferred to teach 9th graders but conceded they required more assistance and can be more difficult to handle. The 1983-84 School Year Respondent remained in the same teaching assignment during the 1983-84 school year. He did not request a transfer to another school, nor did he request a schedule change. Testimony of students of Respondent for 1983-84 school year was consistent with the testimony of his students from the 1982-83 school year. Respondent's teaching techniques did not vary from the previous year. Respondent's attitude remained unchanged in the 1983-84 school year as he continued to advise his students that they were immature and that he preferred to teach upperclassmen. Students requested transfers at an increased rate from Respondent's classes, indicating that Respondent was unresponsive and they did not know how they were doing in his class. Respondent was advised of student and parent complaints by guidance counselors Pat Konttinen and Melinda Wong. They observed no change in his behavior. Two written complaints were received by Ms. Wong concerning Respondent's behavior in the classroom. Respondent did not issue required progress reports to students at the proper time to advise them whether they were failing. When several students were failed by Respondent, they complained about this fact. Luke Thornton discussed this problem with Respondent. Respondent had the second highest rate of textbook losses for the social studies department. Students defaced a number of books due to Respondent's improper storage of the books. Respondent continued to ignore requests to make lesson plans available. As of February, 1984, Respondent had turned in three lesson plans for a 20 week time period. By June, 1984, Respondent had completed five lesson plans when he should have completed a total of 36 lesson plans. The lesson plans completed by Respondent were usually unsatisfactory. Respondent was on leave for approximately three weeks during the Spring semester of this school year. The substitute teacher was Robin Thomas. Respondent left no lesson plans, nor did he have emergency lesson plans available as required. Catherine Thornton, the department chairperson, provided Ms. Thomas with assistance. Thomas created lesson plans, gave assignments to students and corrected the results even though she was not required to do so. She had no problems with discipline in any of Respondent's five classes. She was 21 years old at the time. When Respondent returned to the class after his absence, the students did not want him back and told Respondent to go away. Respondent did not consider Thomas' graded assignments. Students were required by Respondent to repeat the work previously given by Thomas. Also, after returning to school, Respondent requested lesson plans from Ms. Thomas contrary to normal procedure. On several occasions, David Culp, a dean at the school, was advised by Respondent that he, Respondent, refused to teach the class. Students also told Culp that Respondent would stop teaching. Culp received numerous complaints from parents about the lack of teaching their children received from Respondent. Respondent refused to grade papers on one occasion. He also refused to sign a withdrawal slip for a student even though requested to do so by Culp's office. Both Culp and Earl Higgs received frequent discipline referrals from Respondent. Higgs, serving his last semester as dean during the first semester of the 1983-84 school year, testified that Respondent's referrals did not diminish while he was a dean. Culp became a dean beginning with the 1983-84 school year. Culp's testimony was consistent with that of Higgs concerning the type of referrals Respondent sent to him. Culp was also called to Respondent's room to assist Respondent in regaining control of the class. According to Culp, he routinely visited Respondent's class because of his personal observation that Respondent did not have adequate control of students and the atmosphere in the classroom was so hostile that learning could not take place. Culp discussed Respondent's large number of discipline referrals with Respondent. Culp, like Higgs, had many more discipline referrals from Respondent than other faculty members. Culp estimated 25 per cent of all referrals received by him were from Respondent with the remaining 75 per cent split among the remaining 139 faculty members. Students continued to complain that Respondent did not open windows or turn on the air conditioner when requested. A parent's complaint regarding Respondent's discipline techniques was filed with Luke Thornton. Respondent began to come to work late and leave early. This action was noted and Respondent was warned to adhere to the defined duty day. On April 25, 1984, Luke Thornton placed Respondent on a remedial program known as the Notice, Explanation, Assistance and Time (NEAT) procedure as a result of Respondent's continuing problems. The purpose of the program is to provide assistance to teachers with performance problems. Respondent was given a detailed written summary of all deficiencies noted in his performance and given until October 16, 1984, to correct those deficiencies. Among the deficiencies noted were failure to use acceptable teaching techniques, lack of a positive classroom environment through use of acceptable control, lack of professional and effective working relationships with peers and failure to submit proper records. Respondent believed the NEAT procedure was a "device used to get rid of tenured teachers, especially those who made waves." He characterized the "T" in NEAT for "termination," not "time". Respondent's evaluation for the 1983-84 school year noted that the same deficiencies pointed out previously still existed. The evaluation noted that Respondent possessed appropriate educational qualifications and used good oral and written language. Among other subjects, Respondent was criticized for having an inadequate variety of methods and materials, inadequate planning, using inappropriate language with students, discussion of inappropriate topics with students during class time, unwillingness or inability to work effectively with parents, unwillingness or inability to provide a positive learning environment, failure to submit proper records, failure to comply with defined duty days, and failure to have an effective relationship with colleagues. He was admonished to avoid improper language with students, to maintain appropriate standards of discipline and to promote a positive relationship between students and teacher. The 1984-85 School Year At the beginning of the 1984-85 school year, Luke Thornton asked Respondent what assistance he could offer Respondent that had not yet been provided. Respondents refused the principal's offer of assistance. Based on testimony of students who had him as a teacher for the 1984- 85 school year, Respondent's teaching methods did not vary. Students again confirmed that Respondent told them he hated 9th graders and felt they were immature. Students also confirmed that when given worksheet assignments, some students would cheat while Respondent read the newspaper, listened to the radio or looked out the window. Respondent continued to refer to his lawsuit against the school board and school officials during class time. He also discussed with his students the qualifications of another teacher in the social studies department. Respondent's general reputation among his students was that he was boring and no one liked or respected him. Instead of paying attention to Respondent, some students would sleep or "horse around." Students indicated they did not learn anything or learned very little because Respondent did not teach. Also, these students had not encountered any other teachers at the school with teaching problems like those of Respondent. Complaints by students regarding Respondent's refusal to open windows and doors for air continued. On one occasion, Respondent told the class the air conditioner was not working, but refused to open windows because the students were too loud. Respondent refused to give credit for assignments given by the substitute teacher. He refused to issue progress reports. He refused to change a student grade after being directed to do so by Luke Thornton, although such change was appropriate. Guidance counselors continued to receive requests from students seeking transfers from Respondent's class. A new guidance counselor for the 1984-85 school year, Pat Martin, received reports that Respondent constantly talked about his lawsuit during class time. Another guidance counselor also received numerous self-referrals from Respondent's students who were concerned that they were not learning American government, the course subject matter, and that Respondent was talking about his court case. Martin, who had formerly served as a social studies teacher at the school with Respondent, was unable to discuss complaints she received with Respondent. He would not communicate with her and requested she not be allowed to sit in parent conferences with him. As a result, Martin was forced to communicate with Respondent in writing. She handled several complaints of students and parents in this manner. Guidance counselor Elizabeth Konen informed Respondent of complaints from students and parents. Usually, Respondent advised Konen he had no time to participate in conferences with the parents and students. In some instances, Respondent would not respond to parents requests that he contact them. At other times in parent conferences, Respondent would discuss his personal problems with the administration rather than the student's problems. Respondent improved in this school year slightly on textbook accountability, but books and desks continued to be defaced. He also continued to disregard his defined duty hours. Respondent did not turn in any lesson plans during the entire school year. At the conclusion of the year, he turned in a complete set of plans. Those plans did not meet requirements of indicating what part of the unified curriculum objectives had been met. In addition to David Culp, who continued to receive a large number of student discipline referrals from Respondent, Sandra Cowne was assigned to be a dean. Ms. Cowne's testimony is that 35 to 45 percent of her time was spent dealing with referrals by Respondent. Cowne noted 75 per cent of those referrals could and should have been handled by Respondent. Cowne requested students who were referred by Respondent to write out the details of the incident where the student's version differed with that of Respondent. Usually, Respondent did not indicate on the referral form that any action had been taken by him, or whether he had provided instruction to his students about expected and acceptable behavior. Students admitted to administrators that they deliberately "egged" Respondent on, particularly when he made personal comments about them. They also complained that Respondent would shut the windows and make them sit in the heat for discipline, or that he would turn off the air conditioner. They complained that Respondent made them write sentences as punishment, an inappropriate method of discipline. Cowne dealt with several problems when it became apparent Respondent did not have control of his classes. She assisted Respondent in calming classes down and restoring order. The disruption caused by discipline problems adversely affected the amount of learning that took place in Respondent's classroom. Luke Thornton decided to extend the NEAT Procedure to the cover the entire 1984-85 school year. During this time, numerous conferences were held and memos provided to Respondent concerning a multitude of problems. Respondent was observed in class by three administrators. The first observation was conducted on September 19, 1984, by H. W. Berryman, an assistant superintendent and area administrator. An employee of the Palm Beach County School District for 24 years, Berryman has evaluated the performance of principals, teachers, department heads and directors. In his memo to Luke Thornton following the observation, Berryman noted that too much time was taken with roll call and students were not attentive to Respondent's lecture. Berryman was concerned that students in the class were not involved in the total learning process. Berryman stated that he foresaw Respondent "in serious difficulty in managing conduct of students and considered this his most urgent need for growth." On October 4, 1984, Respondent was observed by Dr. Mona Jensen. Jensen is a consultant, certified by the Florida Performance Measurement System (FPMS). The FPMS was designed to determine effective teaching behaviors. Jensen also trains other administrators in the use of FPMS, both locally and statewide. The FPMS utilizes a written instrument called a Summative Observation Form. This form is used to evaluate teacher performance by recording the types of effective and ineffective behaviors observed in four domains: management of student conduct, instructional organization, presentation of subject matter and communication skills. Jensen has previously observed teachers with performance problems on the NEAT procedure. The report provided by Jensen to Respondent and Luke Thornton was based on actual behaviors of Respondent which she observed. Jensen noted in the report that students were talking to one another and not participating in the activity at hand. Jensen provided specific recommendations for improvement in all the areas addressed by the Summative Observation Form. According to Jensen, the main problem with Respondent's teaching technique was the lack of several positive teaching behaviors. She offered Respondent a conference and assistance, but he rejected her offer. Respondent was also observed by Lois Biddix on October 29, 1984. She is a FPMS certified state trainer and is authorized to train administrators to observe teachers. Biddix used the Summative Observation Form in her observation of Respondent. Biddix provided a written summary to Respondent and to Luke Thornton. She observed students talking and engaging in activities unrelated to the lesson. The atmosphere in the classroom, she observed, was sedentary and lethargic. Students suffered from boredom and frustration caused by Respondent's lack of enthusiasm and failure to introduce new content into the lesson. Biddix's observation of students talking, putting on makeup and sleeping are consistent with those of Berryman and Jensen. Biddix's concern was that students were not involved in the learning process. Her recommendations for improvement were consistent with those noted by Jensen. Dr. Jensen completed a second observation of Respondent on January 31, 1985. Again, she provided a written summary of her observations to Respondent and Luke Thornton. On this occasion, Respondent was presenting a lesson and students were not paying attention or participating in the class discussion. Respondent became frustrated with a student who made a personal remark to him. Jensen's recommendations for improvement were basically the same as those proposed by her in October, 1984. She again offered to arrange a conference with Respondent to discuss recommendations and he again spurned her offer. In response to a recommendation by Earl Higgs that Respondent observe successful teachers in their classrooms, Respondent advised that he wanted to observe Catherine Thornton and Mike Lott. Respondent did not associate with these teachers professionally or otherwise. Both Lott and Catherine Thornton requested that Respondent not be allowed to observe their classes. This request was honored by Luke Thornton because he was aware that Respondent disliked these two teachers. Respondent's annual evaluation for the 1984-85 school year indicated the atmosphere in his class was not conducive to learning. He was criticized again concerning the discipline of his class. It was also noted that he continued to make unprofessional comments to his students despite warnings not to do so. Luke Thornton had reviewed specific incidents of such conduct with Respondent during the school year. The evaluation also noted Respondent's failure to adhere to defined duty days after warnings, other poor work habits (i.e., lesson plans) , and his inability to get along with his peers. The 1985-86 School Year Luke Thornton extended the NEAT procedure for Respondent through November 1985, with the hope that Respondent's performance would improve. In the August 19, 1985 letter, Thornton stated: In order to assure that you are given every opportunity to be successful, I am extending the NEAT procedure to November 1, 1985. If at that time, the deficiencies consistently noted . . . continue to exist, I will make my recommendation to the superintendent concerning your employment status with the Palm Beach County School Board. The testimony of Respondent's students for the first semester of the 1985-86 school year confirm that Respondent did not change his teaching techniques despite suggestions given to him for improvement. 9l. One student testified that on the first day of class Respondent told the students they were immature. Other students testified to Respondent's repeated statements that they were immature, childish and that he did not like them. Further, Respondent continued to discuss his problems with the administration during class time. Classroom temperature remained uncomfortable. Respondent advised students to complain to the administration. In one instance, a student vomited in the classroom, creating a foul odor. Although students complained about the smell and administrators located another available classroom, Respondent refused to move his classes. Students testified that Respondent's reputation among them was that he was a "jerk" and a bad teacher who was not liked or respected. Several students stated that they would not want Respondent as their teacher again. He had a bad attitude and they either did not learn anything or they did not learn as much as they felt they should. Respondent did display improvement in taking roll call issuing progress reports, adhering to defined duty days and reducing the number of failures in his classes. He continued to fail to attend open house and to provide adequate lesson plans. In addition to Ms. Cowne and Mr. Culp, Linda Chubbuck was assigned as dean at John I. Leonard High School for the 1985-86 school year. Chubbuck received referrals of students from Respondent which were usually for such minor infractions as talking in class, refusing to be quiet, or not writing "punishment sentences". Student and parent complaints were received by the deans as a result of Respondent continued making students write repetitious sentences. Groups of students were still referred by Respondent. On two occasions, Chubbuck was referred nine to ten students at one time. Cowne was referred six students at one time. The groups were usually referred by Respondent because the students were not being quiet, would not settle down or were otherwise causing disruption. The students who were referred to the deans described Respondent's classes as chaotic. They described Respondent as "caustic and cutting with them." Further, Respondent did not take action to control his classes and rarely instructed students concerning behavior. The deans continued to answer Respondent's requests to come to his class to settle the class down. David Culp saw no improvement in Respondent's ability to control his classes over a three year period. Respondent continued to have more referrals than other teachers, and it was difficult to support Respondent's actions. Due to the constant chaos in Respondent's classes, the deans concluded that very little learning could be taking place. The number of referrals from those classes decreased sharply after Respondent was later suspended from the school. Guidance counselors continued, during this school year, to receive the same type of complaints about Respondent as they had in the past. The only difference was the names of the students making the complaints. The guidance counselors concluded that Respondent was not benefiting students emotionally or academically. Dr. Mona Jensen conducted her third and final observation of Respondent on December 2, 1985. She observed that Respondent's pattern of instruction had not changed. She determined his lesson plan to be insufficient. Respondent had not added any of Jensen's prior recommended positive behaviors to his technique. Respondent continued to fail to provide motivational or positive reinforcement to his students. Jensen concluded that Respondent's "teaching behaviors" were ineffective, ranking Respondent below average as a teacher. Jensen testified that a teacher's behavior should not change based upon the quality of the students. Further, a professional should not allow personal problems with the administration to interfere with providing successful opportunities to students. H.W. Berryman conducted a second observation of Respondent in December, 1985. Berryman was more complimentary of Respondent than was Jensen. Berryman noted Respondent had improved in getting instruction started in the class. He also commended Respondent's knowledge of the subject matter, but noted Respondent seemed to be writing off a majority of the students in the class by allowing them to be inactive and uninvolved in the learning process. Respondent did not communicate well with other social studies teachers at any time at issue in this cause. No improvement of Respondent's behavior in this area was noted during the first semester of the 1985-86 school year. He had heated words for Catherine Thornton, the department chairperson, and expressed his disdain for her. He accused another teacher of theft of a map from his classroom. The atmosphere of the workroom for social studies teachers at the school was hostile and uncomfortable when Respondent was there. Respondent continued to perceive his assignment to teach 9th graders to be a demotion. His peers did not agree. Testimony of teachers indicates that each level of teaching has unique problems. Some teachers volunteered to teach 9th grade. Respondent had difficulty with the administration over reserved parking spaces for the deans, refusing to refrain from parking in the places reserved for them until ordered by Luke Thornton to park elsewhere. The school's security officer was asked by Respondent to investigate the theft of pens and pencils from his desk, as well the source of a stick figure drawing of Respondent. The security officer had not received similar requests from other teachers. An evaluation of Respondent on November 18, 1983, noted he did not have an up to date plan book; that parent complaints about Respondent's unwillingness to work to resolve student problems had been received; and that Respondent remained unable to have a positive relationship with coworkers. Respondent was on the NEAT procedure for a total of 16 academic months. During that time, Respondent's teaching style did not change. He continued to make disparaging remarks to students, failed to provide classroom management and failed to improve his peer relationships. He did not attend open house functions, and failed to maintain adequate lesson plans. Parent and student complaints about him did not diminish. District administrators and school personnel were unable to influence Respondent to change his behavior. Due to Respondent's inability to change and the finding that Respondent was damaging students, Luke Thornton recommended Respondent be terminated from employment. Respondent was suspended in February of 1986, and subsequently terminated from employment by the school board. In Luke Thornton's professional opinion, which is credited, Respondent performed incompetently as an educator from the fall of 1981 until his termination. Further, Respondent's personal conduct during that time seriously reduced his effectiveness as an employee of the district school board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of August, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Petitioner submitted 128 proposed findings of fact. Those findings are treated as follows: 1. Included in finding 2.-3. Included in part in findings 1-3, remainder rejected as unnecessary for conclusion reached. 4.-5. Included in findings 4-5. 6. Included in findings 6-7. 7.-8. Included in findings 9-10. Included in finding 12. Included in finding 11. Included in part in finding 6, remainder rejected. Included in finding 7. Addressed in findings 13-14. 14.-15. Addressed in finding 14. 16. Included in finding 15. 17.-18. Addressed in findings 16 and 14. Included in finding 17. Included in finding 18. 21.-22. Included in findings 18-19. 23.-24. Included in findings 20-21. Included in finding 23. Included in finding 24. Included in finding 25. 28.-30. Included in findings 26-28. Included in finding 29. Included in finding 30. Rejected as unnecessary to conclusion. 34.-35. Included in finding 32. 36.-37. Included in findings 33-34. Included in finding 31. Included in finding 36. 40.-41. Included in findings 37-39. 42.-43. Included in findings 41-42. 44. Addressed in part in finding 43. Remainder rejected as unnecessary to conclusion. 45.-55. Included in findings 44-54. 56.-57. Addressed in finding 55. Included in finding 56. Included in finding 48. 60.-61. Included in findings 56-57. 62. Included in findings 58-59. 63.-64. Included in findings 60-61. 65.-66 Included in finding 62. 67.-70. Included in findings 63-66. 71.-75. Included in findings 67-70. 76.-83. Included in findings 72-77. 84.-85. Included in finding 76. 86. Included in finding 71. 87.-94. Included in findings 77-83. 95.-128. Included in findings 85-111, except for a portion of proposed finding 122 which is rejected as unnecessary for conclusion reached. RESPONDENT'S PROPOSED FINDINGS Respondent submitted 145 proposed findings of fact. They were encompassed in 52 pages and are treated as follows: 1.-19. Rejected as unnecessary to conclusion reached and cumulative. 20.-24. Included in part in findings 13-14, and 21; remainder rejected as unnecessary to conclusion. 25. Addressed in part in finding 15. Remainder unnecessary for conclusion. 26.-28. Rejected as unnecessary for conclusion reached. 29.-31. Addressed in part in finding 20. Remainder rejected as unnecessary to conclusion. 32.-33. Included in findings 37-38. 34. Included in finding 60. 35.-36. Included in part in finding 88, remainder rejected as unnecessary to conclusion. 37.-38. Included in part in finding 108, remainder rejected as unnecessary to conclusion. 39.-40. Included in part in findings 3133, remainder rejected as unnecessary to conclusion. 41.-52. Rejected as unnecessary to conclusion reached. Included in part in findings 20-22, remainder rejected as unnecessary to conclusion reached. Rejected as unnecessary to conclusion reached. Included in part in finding 40, remainder unnecessary to conclusion. Included in finding 23 in part, remainder rejected as unnecessary to conclusion. 57.-63. Rejected as unnecessary to conclusion. 64.-65. Included in part in finding 93, remainder rejected as unnecessary to conclusion. 66.-73. Rejected as unnecessary to conclusion reached. 74. Included in part in finding 113-114, remainder rejected as unnecessary to conclusion. 75.-80. Rejected as unnecessary to conclusion. Addressed in finding 45. Rejected as unnecessary to conclusion reached. 83.-84. Included in part in finding 46, remainder unnecessary to conclusion reached. 85. Rejected, unnecessary. 86.-87. Addressed in part in findings 46 and 57, respectively; remainder rejected as unnecessary to conclusion. 88. Included in part in finding 88. Remainder unnecessary. 89.-90. Rejected as unnecessary to conclusion reached. 91.-96. Included in part in findings 34-35, remainder rejected as unnecessary. 97.-100. Rejected as unnecessary to conclusion reached. 101.-102. Included in part in finding 14, remainder unnecessary to conclusion. 103.-107. Rejected as unnecessary to conclusion. 108.-113. Included in part in findings 58-59, and 79; remainder rejected as unnecessary to conclusion. 114.-118. Rejected as unnecessary to conclusion. 119.-120. Included in part in finding 87, remainder rejected as unnecessary to conclusion. 121.-123. Rejected as unnecessary to conclusion reached. l24.-125. Included in part in finding 80. Remainder rejected as unnecessary to conclusion. 126.-129. Included in part in findings 81-84, remainder rejected as unnecessary to conclusion. Included in part in finding 67. Remainder rejected as unnecessary to conclusion. Included in part in finding 86, remainder rejected as unnecessary to conclusion. Rejected, unnecessary to conclusion and cumulative. Included in part in finding 88, remainder rejected as unnecessary to conclusion. Included in part in finding 89, remainder rejected as unnecessary. 135.-136. Rejected, unnecessary to conclusion reached. 137.-141. Included in part in findings 102-103, remainder unnecessary to conclusion. 142.-143. Included in part in finding 85, remainder rejected as unnecessary to conclusion. 144.-145. Included in part in finding 110, remainder rejected as unnecessary. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Suite C-135 Tallahassee, Florida 32303 Thomas W. Young, III, Esquire 208 West Pensacola Street Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator. Professional Practices Services Department of Education 319 W. Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
The Issue The issue in this case is whether Respondent, Mary Chung ("Respondent"), committed the alleged conduct and, if so, whether Petitioner, Lee County School Board ("School Board"), has just cause to terminate her employment as a food service worker.
Findings Of Fact Respondent is a food service worker at Lehigh Senior High School ("Lehigh") in Lehigh Acres, Lee County, Florida. She was employed in this capacity for the 2003/2004 school year. Respondent was present for work at Lehigh on May 21, 2004. Respondent was scheduled to work from 6:15 a.m. to 2:15 p.m. on this date. This had been her work schedule all year. On May 21, 2004, Respondent reported for work at least 10 minutes late. She arrived at work at approximately 6:25 a.m. Respondent had not called in to notify anyone that she would be late to work that morning and did not advise or explain to her supervisor the reason for her tardiness. Accordingly, Respondent's tardiness on the morning of May 21, 2004, was not excused by her supervisor, Carol Lewis ("Lewis"), who was the food service manager at Lehigh. Respondent and the other employees in the kitchen are given rotating assignments. They rotate to new assignments every two weeks. During the time period which included May 21, 2004, one of Respondent's responsibilities was to open cans of fruit. In accordance with her assigned duties, upon Respondent's arrival in the kitchen on May 21, 2004, Respondent began opening cans of fruit. Lewis approached Respondent while she was opening the cans and directed her to take two coffee pots to the school's media center for a staff appreciation breakfast. It was not unusual for Lewis to direct workers to stop the tasks they were working on to attend to other tasks that needed to be done. In fact, other food service workers in the kitchen that morning were helping with preparations for the staff breakfast in addition to their other assigned tasks. Respondent first ignored Lewis's request, and when directed again by Lewis to move the coffee pots, Respondent told a fellow employee, Lucy Roan ("Roan"), to move them. Lewis overheard Respondent's remark to Roan and corrected her by saying that she wanted Respondent to move the pots. Respondent then proceeded to where the pots were located and indicated to Lewis that she could not lift them onto the cart that she was to use to take them to the media center. According to Respondent, the reason she could not lift the coffee pots and place them on the cart was because of a problem with her foot. Lewis then put the coffee pots on the cart for Respondent and, again, directed Respondent to take them to the media center. When Lewis came back by the area a few minutes later, Respondent had still not taken the coffee pots to the media center. Lewis then directed Respondent to leave the school and said Respondent was fired. Lewis reported the incident to Ronald E. Davis ("Davis"), the principal of Lehigh during the 2003-2004 school year and at the time of the incident. Davis met with Respondent about the incident and gave her a written reprimand dated May 26, 2004. The reprimand was delivered to her on May 28, 2004. The reprimand indicated that Davis was also recommending that Respondent be dismissed. Davis contacted Georgianna W. McDaniel, director, Personnel Services ("McDaniel"), regarding the May 21, 2004, incident. McDaniel advised the principal to forward documentation regarding the incident to Personnel Services. McDaniel has certain responsibilities with regard to employee discipline. She counsels supervisors and administrators regarding appropriate disciplinary action; she suspends employees (with pay) when recommended by the superintendent; and she acts as the predetermination conference administrator. On or about June 1, 2004, Davis forwarded the May 26, 2004, letter of reprimand that had been given to Respondent to the School District's Personnel Services office. He also sent four written statements from the food service manager and three food service workers who were present in the kitchen when the incident involving Respondent occurred. These statements were written at Davis' direction A predetermination conference was scheduled for July 2, 2004, to give Respondent an opportunity to respond to Davis' recommendation for her dismissal based upon the incident on May 21, 2004. Respondent was notified of the conference by McDaniel by certified letter dated June 23, 2004. Respondent attended the predetermination conference and was given an opportunity to address the complaint filed by Davis. However, the matter was not resolved, and the School District superintendent recommended that Respondent's employment as a food service worker be terminated. The School Board met on August 12, 2004, to consider the Petition. At that meeting, the School Board suspended Respondent without pay and benefits pending receipt of the recommended order of the Administrative Law Judge. Prior to the May 21, 2004, incident, Respondent had experienced work-related problems and/or areas of concern while working as a food service worker. These problems had been discussed with Respondent and documented in her record. On May 9, 2002, Respondent was put on Procedures for Improvement by her then assistant principal, James Buchanan. Procedures for Improvement is a tool used by the School District to notify employees of unacceptable conduct and to give them an opportunity to correct their behavior and desist in any further conduct of that nature. In Respondent's case, the May 9, 2002, Procedures for Improvement noted the following specific deficiencies in Respondent's behavior: "Employee refused to leave area to discuss a problem/situation with the supervisor." The desired improvement in her behavior was: "1) Employee will interact appropriate [sic] with supervisor; 2) Employee when asked to go to an area by a supervisor will go, and follow any other directives by a supervisor; [and] 3) Employee will conduct herself properly with co-workers." Respondent was advised she could achieve this desired result as follows: "Employee will do what is told of her to do by a supervisor. Do the work that is assigned to her and complete it in a timely manner." Her success in reaching the desired result would be judged as follows: "No further incidents of refusing to go to a private area to talk out differences. Employee will have no other incidents with co-workers and supervisors." Respondent was also notified in her 2003-2004 Performance Assessment that she was deficient in certain areas and that she needed to "focus" on the following areas in the future: "6) Is punctual in attendance; 8) Exhibits dependability; 11) Exhibits positive attitude; 14) Has good rapport with others; and 15) Accepts criticism constructively." Her supervisor also noted in the comments section that she: "Calls in sick or late too much. Not dependable at all — Gripes about others or duties." She also noted that as of the date of the Performance Assessment (March 2004), Respondent had been absent for 231 hours (or 33 days) and tardy 15 times. Lewis prepared Respondent's 2003/2004 Performance Assessment. It was her responsibility as the food service manager to prepare an annual Performance Assessment for all the food service workers. Lewis prepared the Performance Assessment on March 24, 2004, and reviewed it with Respondent on March 30, 2004, the same date that Respondent signed the Performance Assessment. As a food service worker, Respondent was considered a "10-month employee." She did not work during the summer months. Her last day of work for the 2003-2004 school year was Friday, May 28, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment as a food service worker with the Lee County School District. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 3rd day of November, 2004. COPIES FURNISHED: J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Mary Chung 2147 Gulfside Village Drive Lehigh Acres, Florida 33972 Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable John Winn Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district. The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district. As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record. DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 27th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637 Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board: The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand. Paragraph 12 is rejected as irrelevant. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted. Paragraph 17 is rejected as irrelevant. Paragraph 34 is rejected as argument or comment. Paragraph 35 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant. Paragraph 47 is rejected as vague or argument. Paragraphs 49 through 52 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor: The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. Paragraph 13 is rejected as irrelevant. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted. Paragraph 33 is rejected as contrary to the weight of the credible evidence. Paragraph 39 is rejected as argument. Paragraph 40 is rejected as argument. Paragraph 46 is rejected as argument or vague. Paragraphs 48 through 51 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force. Paragraph 9 is rejected as irrelevant. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant. Paragraph 15 is rejected as argument or irrelevant. Paragraph 16 is rejected as argument or irrelevant. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant. Paragraph 19 is rejected as unnecessary comment. Paragraph 20 is rejected contrary to the weight of credible evidence. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant. Paragraph 27 is rejected as speculative, irrelevant, or argumentative. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argumentative and irrelevant. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 34 is rejected as contrary to the weight of the credible evidence. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 36 is rejected as irrelevant or argument. COPIES FURNISHED: Tobe Lev, Esq. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Roseanna J. Lee, Esq. Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN 390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde, Exec. Dir. 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The issue in this case is whether Respondent is guilty of misconduct in office or wilful neglect of duty as a teacher.
Findings Of Fact Respondent is a professional chef. After teaching at two schools for 17 years in Massachusetts, Respondent moved to Florida and became a culinary arts instructor at Mid-Florida Tech in January, 1990. Mid-Florida Tech is a vocational educational center operated by Respondent, evidently for students of at least high school age. Respondent was employed at Mid-Florida Tech as a culinary arts instructor through May, 1993. For the 1992-93 school year, Respondent was employed under a professional service contract. Typically, the culinary arts program leads to a certificate certifying that the student has completed the course requirements in training to become a chef. The course normally takes 18 months of classwork, which consists mostly of practical exercises by the students preparing various types of food. There is little lecturing in the class, which is located in a very large institutional kitchen with four or five workstations. There is an adjoining dining room in which the students can serve the meals that they have prepared. There is also a walk-in refrigerator in which various foods are stored. Respondent has an office adjoining the kitchen area. The office has a large window with no blind, so that it is visible from almost all points within the kitchen. Respondent taught the students and was assisted on an occasional basis by two visiting chefs. Much of the classwork, which took place daily from about 7:30 am to 2:00 P.M., consisted of students preparing food under the direct supervision of Respondent, who would circulate among workstations through the vast kitchen. The class during the 1992-93 school year was loosely structured. Several of the students were special education students. Some students presented behavioral problems. Some students were adults who were expressly interested in retraining for a new career. For a variety of reasons, attendance was sometimes irregular as some students merely cut the class and others could not always attend due to the conflicting demands of children and jobs. J. D. became a student at Mid-Florida Tech in February, 1993. She enrolled in the culinary arts department and was assigned to Respondent's class. The mother of four children, J. D. received financial assistance from a private industry council and intended to obtain her culinary certificate in order to begin a new career and better support her children financially. J. D. became uncomfortable in Respondent's classroom due to the sexual tone of Respondent's comments. Respondent interspersed numerous sexual jokes and innuendos with his teaching. Amid the confusion that often prevailed in the class, Respondent would circulate, "entertaining" the students with various comments and behaviors, such as a recurring imitation of stereotypical behavior associated with male homosexuals. In this routine, Respondent would place one hand on his hip, hold another hand in front of him with a limp wrist, raise his voice an octave, and sometimes muse to the class whether he wanted a boy or a girl today. At some point, the sexual humor became vulgar by any reasonable standard. Respondent one time recounted to J. D. that he had a dream that she was sitting on his face while he was having oral sex with her and, when he awoke, he found his cat sleeping on his face. Respondent recounted versions of this dream to J. D. on two occasions: one time they were in the kitchen out of hearing range of other students in the area and another time in the presence of another male classmate E. K., who was a good friend of J. D. On another occasion, J. D. was speaking to Respondent about an upcoming test. There were various competencies that each student had to demonstrate to Respondent's satisfaction in order to progress to the point where they could take the final test leading to the certificate at the conclusion of the program. Respondent assured her that if she had sex with him "three different ways" that she would not have to take the test. Another time, as J. D. and Respondent were talking just outside of his office, he said to her, "Come behind my desk and given me some head." By "head," Respondent was referring to oral sex. On one other occasion, Respondent greeted J. D. with the remark that she looked hot and he wanted to peel the pants off her. The record does not disclose any additional remarks that Respondent made to J. D. directly or to the women in the class generally. However, he did, on more than one occasion, moan as J. D. walked by him. Three times Respondent initiated offensive touching. One time, he followed J. D. into the walk-in refrigerator and briefly grabbed her buttocks. Another time he passed by her closer than was necessary and brushed her breasts with his hand or shoulder. Another time he squeezed against her body as she and other students were circled around a workstation watching a demonstration by a visiting chef. The above-described sexual behavior was unwelcome by J. D., who found Respondent repulsive. In part due to a vast difference in their size and personalities--Respondent is more extroverted and J. D. more introverted--J. D. felt intimidated by Respondent. She did not ask him to stop this offensive behavior for fear of offending him and jeopardizing her ability to obtain a chef's certificate. She did not complain to other teachers or administrators until May, 1993, for the same reasons. Due to her increasing repulsion at Respondent's behavior and the demands of a new job, J. D.`s attendance fell off somewhat toward the end of Respondent's employment with Mid- Florida Tech. There is no doubt that Respondent's behavior, regardless of his intentions, interfered with J. D.'s education and would have interfered with the education of any reasonable person under the circumstances. Another perspective on Respondent's behavior during the 1992-93 school year is provided by a female staff person, Clair Blanchard. Ms. Blanchard is a special needs coordinator, whose responsibilities required that she visit Respondent's classroom periodically to monitor the progress of the special education students attending Respondent's class. Respondent's routine with Ms. Blanchard was to hang over her at Wednesday luncheons, in front of all the other students, singing in imitation of the entertainer, Dean Martin. Respondent would get in Ms. Blanchard's face and tell her she was beautiful. He would wrap his massive arms around her, as well as other females in Ms. Blanchard's presence. Ms. Blanchard repeatedly demanded that Respondent stop hugging her and he ignored her. On another occasion, Ms. Blanchard and Respondent had a conference with a male student, whose misbehavior jeopardized his continued enrollment at Mid-Florida Tech. The purpose of the meeting was to discuss the student's behavior and warn him that he could be expelled if he did not straighten out. Despite the gravity of the situation, Respondent undercut Ms. Blanchard's role by constantly blowing her kisses across the desk in full view of the student. A situation unrelated to the present case led to Respondent's removal from the classroom in May, 1993. Respondent did not endear himself to certain administrators at Mid-Florida Tech for a variety of reasons, such as his involvement of the union in a pay issue, flamboyant classroom behavior, and loose classroom management. In any event, a long-standing dispute concerning Respondent's contract status came to a head toward the end of the 1992-93 school year. Fearing that Respondent would not be hired to teach the following year, various students became involved in an effort to retain Respondent. Many of the students were quite fond of Respondent. Some of the students feared only that the culinary arts course would be discontinued if Respondent were not rehired. It is unclear to what extent Respondent was involved with the students' efforts, but he did telephone a newspaper reporter, hand the phone to J. D., and ask her to tell the reporter what was going on and express her support for Respondent. J. D. did as instructed, and the reporter told her that there was no story there. Sensing that Respondent was behind the students' efforts to allow him to keep his job, the administration relieved Respondent of his teaching duties on May 14, 1993, and assigned him administrative duties until the end of the school year. Respondent's replacement was Valerie Shelton, who was a female teacher in the culinary arts program. Two weeks after Ms. Shelton assumed Respondent's duties, J. D. felt sufficiently emboldened to complain to her about Respondent. Ms. Shelton arranged for the still-reluctant J. D. to speak with an administrator. Following an investigation, Petitioner terminated Respondent's contract on the grounds set forth in the Administrative Complaint. Respondent provided no insight into his behavior, as he elected at the hearing to deny that any of the above-described events took place. Likely, Respondent intended to be humorous with at least some of his comments. As J. D. reported to Ms. Shelton, J. D. herself believed at first that Respondent's behavior was, although in poor taste, only joking. However, as the comments became more vulgar and accompanied by offensive touching, J. D. was more profoundly affected by Respondent's behavior. Regardless of Respondent's true intent, J. D. became more reluctant to attend class and contemplated dropping out of the culinary arts program. Regardless of Respondent's specific intent or state of mind when engaging in this behavior, the reaction of J. D. was reasonable under the circumstances. Respondent's conduct constitutes misconduct in office as it pertains to J. D. Respondent's misconduct, as described above, was so serious as to impair his effectiveness as a teacher in the school system. In addition to the effect that he had on J. D., Respondent undercut the authority of another teacher, Ms. Blanchard, and thereby implicitly condoned student misbehavior and explicitly reinforced the sexually abusive classroom atmosphere. Despite Ms. Blanchard's protests, Respondent continued to hug her repeatedly in the presence of students and treated her in a demeaning manner based on sex. This behavior undermined her authority with the special needs students and, more importantly, with the other students who periodically mistreated the special needs students.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's contract for misconduct in office. ENTERED on April 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 4th day of April, 1994. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-4860 Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as recitation of evidence. 5: rejected as subordinate. 6: rejected as recitation of evidence. 7-22: rejected as subordinate. 23-28: adopted or adopted in substance. 29: rejected as subordinate. 30-31: adopted or adopted in substance. 32: rejected as subordinate. 33: rejected as recitation of evidence. 34: adopted or adopted in substance. 35-36: rejected as subordinate. 37-38: rejected as irrelevant. 39-41: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4-5: rejected as subordinate. 6-9: adopted or adopted in substance. 10-11: rejected as recitation of evidence and subordinate. 12-13 (first and second sentences): adopted or adopted in substance. 13 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 14: rejected as subordinate. 15-16: rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence to the extent that the effect of Respondent's offensive behavior is discounted. 18: rejected as irrelevant. 19-27: rejected as subordinate. COPIES FURNISHED: Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Donald Shaw Superintendent, Orange County School District P.O. Box 271 Orlando, Florida 32802-0271 Rosanna J. Lee Honigman, Miller 390 Orange Ave., Ste. 1300 Orlando, Florida 32801-1677 Ronald G. Meyer Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, Florida 32302 Frank C. Kruppenbacher Kruppenbacher & Associates, P.A. P.O. Box 3471 Orlando, Florida 32801-3685
The Issue The issue to be resolved in this proceeding concerns whether the Respondent should be discharged for alleged violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1991)("Act"), as set forth in the Notice of Termination entered May 6, 2004.
Findings Of Fact The Respondent holds Florida Educator's Certificate No. 537246, licensing her to teach in Florida. That license allows her to teach music for kindergarten through twelfth grades. She has worked for the Duval County School Board as a teacher continuously since 1997 and is a tenured teacher. She has prior teaching experience with the Duval County School Board as well. During the 2001-2002 school year Patsy Butterbrodt, a music teacher for the Petitioner, evaluated the Respondent during Ms. Johnson's assignment as a teacher at William Raines High School (Raines). Ms. Butterbrodt found that the Respondent's teaching was unsatisfactory due to the Respondent's poor organization, her failure to comply with the music curriculum which had been adopted, and overall lack of professionalism. Ms. Butterbrodt, is the principal author of the music curriculum, provided the curriculum to Ms. Johnson and observed her teaching. The Respondent taught at Andrew Jackson High School (Jackson) during the 2002-2003 school year. During that year Principal Jack Shanklin counseled the Respondent concerning her excessive absences and excessive tardiness, as well as her failure to comply with the Petitioner's curriculum standards and other requirements. He found that her lesson plans were habitually inadequate and "sketchy" and that she failed to adequately adhere to "standards based teaching" principles and requirements. She was required to make a syllabus for her students and never did so. These problems, coupled with her excessive tardiness and absences resulted in her being placed upon a "Success Plan" designed to improve her performance. She continued to be deficient, however. Her student progress reports were never done on time and she was non-compliant with her Success Plan. After the inauguration of the Success Plan her lesson plans were still inadequate. On December 16, 2002 the Respondent was given a written reprimand for her tardiness and excessive absences and was suspended without pay for five days. At the request of Principal Shanklin, the assistant principal for curriculum, Ms. Pierce, observed and evaluated the Respondent. Ms. Pierce concluded that her performance was unsatisfactory. Ms. Pierce reported that the Respondent failed to comply with the curriculum standards or with standards for punctuality. She often simply failed to attend her class. In fact, security became a problem during the Respondent's tenure at Jackson High School. She was often not at her classroom on time, causing the students to be locked out of the room. The Respondent also repetitively failed to enforce tardy procedures for students. Ms. Pierce wrote the Success Plan which the Respondent failed to comply with for her tenure at the Jackson High School. Principal Shanklin also asked Allen Fletcher, the assistant principal for curriculum at Jackson to observe and evaluate the Respondent. He evaluated and monitored her compliance with the Success Plan. He established that progress reports for students were not finished on time by the Respondent and that the "scan sheets" regarding student academic progress were habitually late. He established that she was non-compliant with the Success Plan designed to improve her performance (See Exhibit M in evidence). At the conclusion of the 2002-2003 school year, Principal Shanklin evaluated Ms. Johnson as being unsatisfactory. Art Lauzon was the principal at Sheffield Elementary School at times pertinent hereto. The Respondent was assigned, at her request, as a music teacher at that school for the 2003- 2004 school year. A Success Plan was developed for the Respondent at Sheffield and principal Lauzon personally administered the plan. During that school year Mr. Lauzon observed the Respondent using inappropriate teaching methods and being excessively tardy and absent on multiple occasions. He had difficulty getting her to attend school reliably. She was ultimately assigned an unsatisfactory rating for that school year. Mr. Lauzon found that her lesson plans were never adequate and that parents were sending letters of complaint to him. Dr. Mary Jeanette Howle has a doctorate degree in music education and is nationally board-certified in music education. Dr. Howle established the applicability of the Sunshine State Standards for music education as the basis for the curriculum the Respondent was supposed to employ (as shown by exhibit B in evidence). She observed the Respondent on three occasions. The Respondent did not comply with the properly adopted musical curriculum nor did she employ appropriate teaching standards. Additionally Jan Moore, a teacher with 35 years' experience in the Duval County System and 33 years' experience at Sheffield Elementary was asked to observe the Respondent's teaching. Ms. Moore found the Respondent's attendance to be unsatisfactory and that she employed poor teaching methods and practices. She opined that the Respondent was an unsatisfactory teacher, although she was a very talented musical performer and a nice person. Dr. Howle likewise found her to be a warm and loving person in her relationship with students, but a very unsatisfactory teacher. Their opinions are most credible and are accepted as fact. At the conclusion of the 2003-2004 school year at Sheffield Elementary, Ms. Johnson received another unsatisfactory evaluation, as a result of these observation and evaluation efforts. Mr. John Williams has 25 years' experience with the Duval County School Board. He is the director of professional standards and is responsible for employee discipline. He suspended the Respondent for five days without pay due to her repetitive tardiness. He established that the Respondent's tardiness, attendance pattern, and absences were unacceptable. Mr. Williams sponsored Composite Exhibit A which is a two-page compilation of the Respondent's absences. She had missed a total of 356.85 hours at Jackson High School and 259.73 hours at Sheffield Elementary School. These attendance deficiencies are grossly excessive. Mr. Williams also established that there had been many problems in the Respondent's past history with the Duval County School Board concerning her performance, her attendance, and tardiness earlier than the past two years and at least as far back as 1992. Mr. Williams was the custodian of the Respondent's complete file, including her disciplinary record, and also established that the Respondent has been a unsatisfactory teacher for a substantial period of time. The Respondent testified and essentially admitted most of the allegations of the Petitioner. She acknowledged the problems with her teaching and the problems with her tardiness and attendance. She argued, however, that her previous many years' employment experience with the Petitioner should ultimately affirm her value as a teacher and justify her retention. Mr. Williams established, particularly on rebuttal, that the problems found above concerning the Respondent's performance as a teacher, and her past history of performance were of long standing as to her attendance, punctuality and adherence to professional standards. Indeed, if she had made only one point lower on her evaluation for the 1991-1992 school year she would have received an unsatisfactory rating for that year as well. In summary, the Petitioner established that the Respondent's performance as a teacher, and her professional competence as a teacher are so deficient as to justify her termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board finding that the Respondent, Diane Johnson, should be discharged from her employment with the Duval County School District. DONE AND ENTERED this 2nd day of March, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 2nd day of March, 2005. COPIES FURNISHED: John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Virginia Baker Norton, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Diane Johnson 2746 Stardust Court, No. 44 Jacksonville, Florida 32211
The Issue The issue is whether Respondent's employment with the District School Board of Taylor County, Florida, should be terminated.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She was, when first employed, a teacher at Gladys Morse Elementary School and then was employed as a teacher at Taylor Elementary School. Until January 19, 2005, she taught at Taylor Elementary School. Her employment was pursuant to a professional services contract. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or have a physical handicap or handicaps. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities, she is County Coordinator for the Special Olympics. The School Board operates the school system in Taylor County. The School Board is a party to a Master Teacher Contract (Master Teacher Contract), with The Taylor Education Association, which is an affiliate of the Florida Education Association, the American Federation of Teachers, the AFL-CIO, and the National Education Association. This contract governs the relations between teachers, and others, and the School Board. Accordingly, it governs the relations between the School Board and Dr. Whalen. Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crises Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction-Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, the act of lying upon a child could prevent a child from breathing which could result in injury or death. Ms. Kriedler teaches CPI throughout the District. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. A memorandum dated April 7, 2003, and signed by Principal Sylvia Ivey, was presented to Dr. Whalen by Principal Ivey. The memorandum addressed conversations that Dr. Whalen had with two of her colleagues on April 3, 2003. The memorandum recited that these conversations raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video- taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The record reveals that Dr. Whalen's classroom was already being video-taped as early as November 20, 2002. It is certain that the classroom was being video-taped daily from April 2003, until the end of the school year. By January 2005 the practice of video-taping Dr. Whalen's classroom on a daily basis had ended. The incident giving rise to this case was not video-taped. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your Classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. During January 2005, a school resource officer, who is a deputy sheriff, was available should it become necessary to physically restrain a child who was a threat to himself or herself or others. On January 19, 2005, J.R. a female, was a student in Dr. Whalen's classroom. J.R. was ten years old and in the third grade. J.R. had been a student in Dr. Whalen's classroom since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair at the hearing. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student when once he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered the CD player and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Vincent Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed J.R.'s back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten under the circumstances described. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks are consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or wound like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding as to the origin of the marks on J.R.'s back. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is found that the assault on Dr. Whalen was sudden and unexpected. J.R. was suspended from Taylor Elementary School for ten days following this incident. Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. Dr. Whalen received memoranda of counseling on December 2, 2002, and April 7, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Whalen be immediately reinstated to her former position without diminution of pay or benefits, pursuant to the Master Teacher Contract. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of June, 2005. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Oscar M. Howard, Jr., Superintendent Taylor County School Board 318 North Clark Street Perry, Florida 32347
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
