Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue Did Respondent, Volusia County Schools (School Board), decline to renew the contract of Petitioner, Glen Collins (Mr. Collins), because of his age? Did the School Board unlawfully retaliate against Mr. Collins for protected activity?
Findings Of Fact The School Board is an employer as defined by section 760.02(7), Florida Statutes (2010),1/ the Florida Civil Rights Act. The School Board had policies and procedures in place during Collins' employment that prohibited the discrimination or harassment of any employee "on the basis of [that employee's] race, color, religion, national origin, sex, disability, marital status, political beliefs, sexual orientation, or age." The School Board provided these policies and procedures to all employees in the new employee briefing. The School Board also provided employees periodic training on the policies. Additionally, the policies and procedures were available to employees on the School Board's website and in employee handbooks. The School Board also operated a human resources department to help enforce the policies and answer employee questions or concerns about the policies. The School Board's anti-discrimination policy encouraged any employee who believed he or she had been subject to harassment on the basis of age to notify the equity officer, through use of a report form or orally, within 60 days of the alleged harassment. The School Board policies commit to promptly investigate any complaint(s) of harassment, whether formal or informal, verbal or written, and take appropriate action to prevent further harassment, including disciplining the employee violating its policy. The School Board also prohibited retaliation against any employee for reporting allegations of harassment or participating in an investigation, proceeding or hearing related to the alleged harassment. The School Board would take the appropriate disciplinary or other action against any employee found to be in violation of the policy. Mr. Collins worked for the School Board from August 28, 2006, until June 30, 2010. He began employment in the maintenance unit for the school system. The maintenance unit employees were responsible for repair and other maintenance of the School Board facilities throughout Volusia County. Russell Tysinger (Mr. Tysinger) hired Mr. Collins. In 2006, the School Board operated separate construction and maintenance departments. The maintenance department consisted of employees at two district offices, one in Daytona Beach and one in Deltona. Mr. Collins began work at the Daytona office. Mr. Collins was a skilled, diligent, and committed employee. Over the years he worked in several positions including Electrical Maintenance Supervisor for the East Side (of the County), Facility Mechanical Technician (FMT) Supervisor, and Trade Supervisor (Electric). In addition to performing all the duties of his various positions during his years of employment, Mr. Collins volunteered for additional duties and actively sought to identify and solve problems at the schools for which he was responsible. For instance, when a plumbing supervisor retired, Mr. Collins volunteered to assume the duties of that position. This permitted the School Board to save money by eliminating the position. The School Board recognized Mr. Collins' skills and dedication. It gave him additional duties and pay increases. The School Board does not claim that Mr. Collins' termination was for discipline or unsatisfactory work. In 2008, and in every year since, the School Board's revenue has declined. This has caused a decrease each year in the budget of the maintenance and construction department and other departments. When the School Board hired Mr. Collins, he knew that it faced financial difficulties and was likely to downsize. Mr. Tysinger, the maintenance unit's head, had to reduce costs, increase efficiency, and economize in both the materials and labor components of his budget. In 2008, he eliminated several vacant positions and did not fill positions created by retirements. In 2009, when the head of the construction unit resigned, the School Board consolidated the maintenance and construction units to save money. Mr. Tysinger became the head of the consolidated unit. The School Board eliminated the position filled by the former head of construction. In 2009, Mr. Tysinger faced a greater need to reduce costs, including labor costs. This year there were not enough retirements and vacancies to achieve the needed personnel cost savings simply by eliminating vacant positions. Mr. Tysinger laid off 12 employees from the newly consolidated unit, including five in supervisory positions. He reduced capital and material expenditures also. And he reinvigorated an energy conservation program to reduce utility costs. During the 2009-2010 time period, Mr. Tysinger also changed the maintenance shop locations from two (one on the east side of the county and one on the west side) to five distributed around the county. He did this to reduce the costs of the various tradesmen driving to the schools where they performed their tasks and to improve efficiency by having less driving time and more working time. These changes saved the financial equivalent of 33-full time equivalent positions and doubled the department's productivity. In July of 2009, Mr. Collins became an FMT supervisor, responsible for overseeing and assisting 11 FMTs. These duties were in addition to his duties as an electrical maintenance supervisor. On December 3, 2009, Mr. Collins executed an annual contract with the School Board for the 2009-2010 school year. The contract specifically provided that "[a]n Employee may be dismissed where the School Board through financial necessity for good cause shown deems it necessary to decrease the number of employees of the particular kind of service in which the affected Employee was engaged." The contract expired on June 30, 2010. In 2010, the School Board required Mr. Tysinger to cut approximately 1.8 million dollars from his personnel budget and four to five percent from his materials and supplies budgets. These further budget reductions required Mr. Tysinger to lay off 38 employees in the construction and maintenance division and take other cost-cutting measures. Mr. Tysinger conducted a rational analysis of employees and their skill sets to determine which employees he would have to let go in 2010. First, Mr. Tysinger identified all of the skill sets that he needed to have in the maintenance and construction unit. This included plumbing, electrical, and heating and cooling. He also determined how many employees with each skill set he needed. Then he identified the employees with the needed skills. After that, Mr. Tysinger reviewed the seniority of each employee in each group determined by the skill set groupings. He then determined who would be laid off by seniority, while ensuring that he maintained the skill sets needed and the number of employees he required with those skills. Using seniority as a factor helped ensure that the School Board retained the employees with the most experience with the School Board facilities and systems. Mr. Collins was one of the individuals let go. Mr. Tysinger advised Mr. Collins on May 27, 2010, that the School Board would not renew his contract in June when it expired. Mr. Collins was 52-years-old. The School Board's Maintenance and Construction unit retained employees older than Mr. Collins. For example, the School Board retained Mr. Ken Blom and Mr. Rick Jones, both of whom were older than Mr. Collins. During the period between May 27, 2010, and the end of the contract period, Mr. Collins' supervisor asked him to train Antonio Gutierrez in the job duties that Mr. Collins performed and inform Mr. Guiterrez about projects and activities underway. Mr. Gutierrez is younger than Mr. Collins. His age does not appear in the record. Mr. Tysinger retained Mr. Gutierrez because of his expertise with air conditioning units, because air conditioning was one of the largest problem areas, and because of his seniority. During the time period when he reduced the number of staff, Mr. Tysinger also reassigned employees to different locations and units to provide the needed distribution of skill sets at each location and in each unit. This process took several months. In this process, as an interim measure, Mr. Tysinger assigned Mr. Gutierrez to perform many of Mr. Collins' functions. Mr. Gutierrez did not replace Mr. Collins or permanently assume his duties. Mr. Tysinger reassigned the majority of Mr. Collins' duties to Mr. Blom. This included his electrical duties and supervision of some of Mr. Collins' former FMTs. He assigned Mr. Collins' plumbing responsibilities and some of his FMTs to Mr. Ford. And he assigned some of Mr. Collins' electrical responsibilities to Mr. McKinnon. The ages of Mr. Ford and Mr. McKinnon do not appear in the record. Mr. Collins' claim of age discrimination rests solely on his belief that Mr. Gutierrez assumed his job responsibilities. During his employment with the School Board, Mr. Collins identified maintenance problems at different schools, including Pine Ridge High School, over the years and reported them. Mr. Collins also discovered sealant was being improperly applied and raised concerns about this. Mr. Collins thinks that his identification of the problems embarrassed the supervisors responsible for the schools and that his termination was retaliation for identifying the problems. There is no persuasive evidence to support Mr. Collins' belief. There is no evidence that Mr. Collins opposed any practice that is unlawful under the Florida Civil Rights Act of 1992 (chapter 760, Florida Statutes), or that he made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Civil Rights Act. Budget reductions required the School Board to reduce the number of employees in the construction and maintenance unit where Mr. Collins worked. Mr. Tysinger and the School Board did not consider Mr. Collins' age in deciding to end his employment. They also did not act because of any dissatisfaction with his good work identifying problems with the maintenance of the schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Collins' Petition for Relief. DONE AND ENTERED this 11th day of April, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2012.
Findings Of Fact The Respondent holds teaching certificate number 069548, Rank 3, being certified in the area of art education. At times pertinent to the Administrative Complaint and the Notice of Charges herein, the Respondent was an instructional employee with the School Board of Dade County at Rainbow Park Elementary School or Norland Elementary School. The Petitioner, School Board of Dade County, is an agency of the government of Metropolitan Dade County, a political subdivision of the State of Florida, which is charged with employing and regulating the terms and conditions of employment and conduct and practices of instructional personnel employed in its public schools in Dade County. The Petitioner, Education Practices Commission, is an agency of the State of Florida charged with the enforcement of licensure standards for teachers and regulation of the professional conduct and practices of teachers under its licensure jurisdiction. During times pertinent to Counts I through IV of the Administrative Complaint, the Respondent was assigned to Rainbow Park Elementary School in Dade County as an art teacher. Patrick Outler was a 12-year-old student in the Respondent's art class at that school. On May 1, 1978, an altercation occurred between the Respondent and Patrick Outler in Respondent's classroom. The Respondent grabbed that student by the arm, stating that he was going to take the student to the office. When they were outside of the classroom in the open hallway, and while remonstrating with the student because of the student's conduct in class, the Respondent jerked or shook the student back and forth while holding on to his shoulders near his neck, also pushing him against the wall. The student was not noticeably injured in this episode. Sarah Bullard, a teacher's aide in an adjoining classroom, heard the disturbance, caught up with Patrick Outler, who was fleeing the Respondent's grasp and held him in her room pending the arrival of the principal. She heard the Respondent make a profane statement to the student during the course of this episode. On May 9, 1973, the Respondent was involved in a disciplinary-related incident with a student, Tashanika Melvin. Tashanika Melvin was 5 1/2 years of age and a student at Rainbow Park Elementary School. The Respondent was her art instructor. On that date, while the student was seated at her desk during one of her classes with the Respondent, he summoned her up to the center of the blackboard, apparently to impose discipline for some departure from standards of department (the nature of which does not appear of record). The student went to the front of the class, whereupon the Respondent struck her on the knee with a ruler. This caused the student to become upset and to cry as a result of this disciplinary measure, although she was not physically injured. Another such incident took place on September 28, 1979, involving a student by the name of Edgrena Roberts, a student in the Respondent's fourth grade art class at Rainbow Park Elementary School. The first incident occurred when the student was standing around a table with other students and a student threw a piece of clay at or in the direction of the Respondent. The Respondent, believing that Edgrena Roberts was the culprit in the clay-throwing incident, proceeded to where she was standing, accused her of throwing the clay, which she denied, at which point the Respondent pushed the side of her head with his hand such that her head hit the wall or window frame. The next incident involving this same student occurred when she was walking by the classroom with a friend and the friend threw a pencil into the Respondent's class. The Respondent rushed out into the corridor, seized Edgrena Roberts and shook her and then took her to the principal's office. There is no evidence that she was physically injured by this contact. On February 12, 1979, student Frank Freixas and a friend were standing outside the Respondent's classroom. That student and his unidentified friend were uttering the phrase "Heil Hitler" in a loud tone of voice. The Respondent, upon hearing these exclamations, ran out of his classroom and across the small courtyard to where the student was standing. The Respondent grabbed Freixas by his arm and began swinging him around before releasing his arm, causing the student to fall. In falling, the student struck a sprinkler head in the lawn of the courtyard, sustaining a minor scratch. A number of other persons on the staff, as well as students, observed this incident: Edna H. Armstrong, Willie Mae Williams, Justine Wilcox, Gloria Williams and Mary Sabb. The Respondent served in the United States Armed Forces during World War II and was wounded by hostile German fire in the European Theater in 1945. Dr. Michael Gilbert, who examined the Respondent after the hearing and testified by deposition, established that veterans, especially those who have been wounded, often react emotionally because of their war experiences. As a result of these altercations with students, Mrs. Andel Mickens, the principal at Rainbow Park, initiated an internal investigation concerning the Respondent's suitability to remain as a teacher at her school. She ultimately recommended his termination from employment. She acknowledges that the Respondent has a favorable record as a teacher and exhibits a great deal of talent in the area of art education and is an excellent teacher from a skills standpoint. Her basis for recommending his termination was because of the incidents described above and her view regarding their reflection on the Respondent's emotional suitability to occupy a classroom instruction position. As a result of this recommendation, Dr. Patrick Gray, Executive Director of Personnel Control of the Dade County School Board, conducted an investigation regarding these charges or incidents and as a result of that investigation, required a medical evaluation of the Respondent and issued a formal reprimand. The Respondent was admonished to avoid all future such occurrences and was transferred to another work location at Norland Elementary School. In the course of this investigation, the School Board had the Respondent evaluated by a psychiatrist before his reassignment. On February 12, 1981, while the Respondent was an art instructor at Norland Elementary School, an incident occurred involving student Jeffrey Green. Jeffrey Green was playing with a friend after school and threw a paper airplane into Mr. Parker's classroom. He came in the classroom to retrieve it and, Mr. Parker, apparently being angry at the student, seized his fingers and bent them back, such that the student's fingers hurt for several hours thereafter. The last incident charged, involving physical contact with students, occurred April 30, 1981, involving a student named James Moore. During this incident, James Moore was repeatedly interrupting the Respondent's class and causing disruption to the orderly conduct of the class. The Respondent called him to the front of the class evidently to remonstrate with him concerning his behavior. The student at that point continued to exhibit disruptive behavior and the Respondent pushed him out of the door of the classroom. James Moore fell to the ground or floor of the corridor outside of his own volition after only a gentle push designed to remove him from the chair. He did not fall as the result of any physical contact by the Respondent. The Respondent merely lightly pushed him out of the door to avoid further disruption of his class and told James Moore to remain outside until he could come and take him to the principal's office for disciplinary action. Ms. Andel Mickens was the Respondent's supervisor during his tenure at Rainbow Park Elementary School. During his tenure there, the Respondent was warned on a number of occasions regarding his improper corporal punishment procedures or improper physical contact with students. Mr. Leo Strausberg was the Respondent's supervisor and principal at Norland Elementary School. On three occasions during his tenure at Norland Elementary School, the Respondent was counseled and warned regarding the necessity of and consequences of engaging in improper physical contact with students while attempting to impose discipline upon them. Dr. Michael Gilbert, a psychiatrist, examined and evaluated the Respondent subsequent to the hearing with his deposition being stipulated into evidence. The doctor's testimony is the only testimony or evidence resulting from a psychiatric or psychological evaluation of the Respondent in evidence in this proceeding. It was thus established that the Respondent is a man of high moral and professional standards. The nature of his personality tends to be that of a perfectionist and "somewhat of a martinet" in terms of his experience and personal functioning. He tends to be a compulsive, conscientious person with a high level of aspiration and a strong compulsion to adhere to the high standards he sets for himself and others. As a result of his high standards of behavior, he tends to be less tolerant of aberrational behavior by his students and such behavior which does not comport with his own high standards presents a greater incidence of stress for the Respondent than it might in other persons or teachers who are more tolerant of substandard behavior in students. There is no evidence of an emotional or personality disorder. He is not an emotionally unstable person so as to be unfit to deal with children. The provision of a modicum of counseling or psychotherapy would enable him to gain insight into his needs, and to learn to be more tolerant of the behavior of adolescents. The Respondent is not an overly violent or routinely physically abusive individual, but rather his behavior arose from frustration in dealing with department by his students which did not measure up to his high standards. The Respondent has never been the subject of a disciplinary proceeding such as this in the past. His evaluations and ratings in the past have been uniformly of a high order and he has been described as an excellent art teacher in terms of knowledge of subject matter and his abilities as an artist. His only difficulties in exercising his responsibilities, which culminated in the instant prosecution, have been these described altercations with students.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of counsel, it is RECOMMENDED: That the Respondent be dismissed from employment by the Dade County School Board and forfeit all back pay. It is, further RECOMMENDED: That the Respondent's teaching certificate be suspended for a period of one year and thereafter be reinstated, and that the Respondent, during that period of time, obtain an appropriate course of psychological counseling designed to enable him to cope with stressful situations and to control his frustration and aberrant conduct when dealing with problems involving student behavior. DONE and ENTERED this 8th day of March, 1984 in Tallahassee, Florida. P. MICHAEL RUFF 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 8th day of March, 1984. COPIES FURNISHED: Craig R. Wilson, Esquire Suite 294, 315 Third Street West Palm Beach, Florida 33401 Jesse J. McCrary, Esquire 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Phyllis O. Douglas, Esquire 1410 North East 2nd Avenue Miami, Florida 33132 William DuFresne, Esquire Suite 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Greisheimer, Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools School Administration Building 1410 North East Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINOTON, as Commissioner of Education, Petitioner, vs. DOAH CASE NOS. 81-2107 82-2741 ROSS PARKER, JR., Respondent. /
The Issue Whether just cause exists for Petitioner to suspend Respondent for 10 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a kindergarten teacher at Park Lakes Elementary School (“Park Lakes”), a public school in Broward County, Florida. The proposed discipline is based upon conduct occurring on Thursday, May 15, 2014, during the 2013-2014 school year. During the 2013-2014 school year, Kerlaine Louis was a paraprofessional assigned to Respondent’s class. On May 15, 2014, Respondent and Ms. Louis took thirteen of Respondent’s kindergarten students to the City of Lauderhill Mullins Park Pool Facility (“pool facility”) to participate in a water-safety class.1/ To get to the pool facility on May 15, 2014, Respondent, Ms. Louis, and the thirteen students rode together on a standard Broward County school bus. The bus picked up Respondent, Ms. Louis, and the thirteen students from Park Lakes at approximately 11:00 a.m. Respondent and Ms. Louis loaded the students onto the school bus at that time. Approximately 10-15 minutes later, the bus arrived at the pool facility with all of the thirteen students present. The bus drove directly from the school to the pool facility, and dropped Respondent, Ms. Louis, and the thirteen students off in front of the building where the pool facility is located. The pool is located behind the building. The thirteen students were scheduled to start their water-safety class at 11:30 a.m. The class was scheduled to end at 12:00 p.m. However, due to bad weather, the class was canceled. Respondent learned of the cancellation of the class after arriving at the pool and exiting the school bus with the children. Because the class was canceled, Respondent, Ms. Louis, and the thirteen students gathered in the patio area located in the back of the pool facility (behind the building and near the pool), where they waited under a covered patio area for the school bus to return to pick them up and bring them back to the school. Respondent brought some paperwork with her to work on at the pool facility. While waiting on the bus to return, the students interacted with each other. During this time, Ms. Louis spent most of her time pre-occupied with an exceptional student in the class who is autistic.2/ No lifeguards were on duty or in close proximity to the students and nobody was in the pool. While waiting for the bus to return to the pool facility, Respondent left the patio area and went inside the building. Respondent returned to the patio area in the back of the pool facility after being gone approximately five minutes. As she returned to the patio area, Respondent saw the bus coming around the front of the building. The bus returned to the pool facility at approximately 12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen students. Respondent gathered the children to walk them to the area where they would board the bus. Because it was raining, Respondent, Ms. Louis, and many of the children quickly boarded the bus. Shortly thereafter, the bus departed for the return trip to Park Lakes. However, by the time the school bus returned to the school at approximately 12:30 p.m., only Respondent, Ms. Louis, and eleven of Respondent’s students were on the bus. Two of Respondent’s students were left behind at the pool facility, unsupervised after Respondent and Ms. Louis left the pool facility without checking to see that all of the students were accounted for. Respondent did not realize that two of her students had been left behind at the pool facility until sometime after returning with the other students to her classroom at Park Lakes.3/ The two students that were left behind at the pool facility had gone to the bathroom. The bathroom is located along an exterior corridor of the building. Taking attendance and conducting a “head-count” of kindergarten students is an essential duty of a kindergarten teacher. Taking attendance and conducting a “head-count” of kindergarten students is required of all kindergarten teachers at Park Lakes at every transition point during a field-trip. A transition point occurs whenever there is movement of the children. Taking attendance and conducting a “head-count” of Respondents’ students who were participating in the water-safety class at every transition point was necessary to insure that all of Respondents’ students who were participating were accounted for and remained safe. The responsibility for that task fell on Respondent. Respondent was expected to take attendance and conduct a “head-count” of the students taking the water-safety class as they were leaving the classroom; as they were exiting the school; as they were boarding the bus; and while they were in route to the pool facility. Respondent was also expected to take attendance and conduct a “head-count” of the students taking the water-safety class when they exited the pool facility; as they boarded the bus to return to the school; while they were on the bus in route back to the school; and upon the students’ return to the school after departing the bus. At hearing, Respondent acknowledged that she failed to take attendance or conduct a “head-count” of her students prior to boarding the bus at the pool facility to return to the school. Furthermore, Respondent acknowledged at hearing that she failed to take attendance or conduct a “head-count” of her students while on the bus during the return trip to the school, or at the school after returning to the school. At hearing, Respondent conceded that she “dropped the ball” by failing to take attendance and conduct a “head-count” of her students before getting on the bus at the pool to return to the school, on the bus during the return trip to the school, and when she returned to the school. Had Respondent taken attendance and a “head-count” of her students while at the pool facility just prior to boarding the bus to return to the school, or while on the bus before leaving the pool facility, she would have discovered that two of the students were missing, and the children would not have been left behind at the pool facility. Respondent was visibly upset and remorseful of her conduct at the hearing. Within five minutes after the school bus departed to return to the school, April Nixon, a lifeguard at the pool facility who was inside the building, encountered the two children standing in an interior hallway of the pool facility. Ms. Nixon immediately called Park Lakes to report that the two students had been left behind; she locked all of the doors, and she remained with the students from the point she discovered them until two Park Lakes employees came to pick them up at approximately 1:25 p.m., and return them to the school. Significantly, for several minutes after the bus departed to return to the school, the two students were unsupervised, and their physical health and safety were in jeopardy. They could have easily wandered into the pool and drowned; walked further outside of the facility where they could have been kidnapped; or walked into a large lake, which is located very close to the perimeter of the pool facility-- accessible through a short walk through an unlocked door. Respondent failed to make reasonable effort to protect the two students from conditions harmful to their physical health and safety by failing to take attendance and conduct a “head- count” of the students in her class on multiple occasions on May 15, 2014, including: 1) when the students exited the pool facility to return to the bus; 2) as they boarded the bus at the pool facility to return to the school; 3) while they were on the bus in route back to the school; and 4) upon the students’ return to the school after departing the bus. Respondent’s conduct on May 15, 2014, also demonstrates incompetency due to inefficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent without pay for 10 days. DONE AND ENTERED this 8th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2015.
The Issue Whether Respondent, Claude Paul ("Respondent" or "Ms. Paul") committed the violations as alleged in the November 18, 2018, Petitioner's, Miami-Dade County School Board ("the School Board") action letter; and, if so, what is the appropriate penalty.
Findings Of Fact The Parties The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. Ms. Paul began her employment with the School Board in 2008 as a substitute teacher. Since then, she was employed at several different schools. Starting in February 2016, she was assigned to Miami Park. Prior to the instant case, Ms. Paul had no prior discipline. Ms. Paul's employment with the School Board is governed by Florida law, the School Board's policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. Circumstances Giving Rise to Ms. Paul's Discipline The proposed discipline is based upon conduct occurring on September 5, 2018, as a result of an altercation between an 11 year-old student, J.B., and Ms. Paul while he was an Emotional and Behavior Disturbed (EBD) student in her fifth grade class. Ms. Paul had J.B. as a student the prior year for fourth grade. Due to his frequent disruptiveness, Ms. Paul placed J.B. at a desk in the back of the class facing a wall during most of his fourth grade year (2017-2018 school year). September 5, 2018, was at the beginning of the 2018-2019 school year. On that date, J.B. was talking to another student and did not stop when asked to do so repeatedly by Ms. Paul. Ms. Paul told J.B. she was moving his desk to the back of the class. As Ms. Paul approached his desk, J.B. dropped his pencil case and bent down to pick it up. Believing Ms. Paul was going to physically restrain or move him, as he stood up, J.B. slapped Ms. Paul once or twice on the face and called Ms. Paul a "bitch." The witnesses' recollections of what happened next diverge. According to J.B., Ms. Paul grabbed his arms and twisted them up high behind his back. It hurt immediately and he was "sad and mad at the same time." She then took him to the adjacent room of Clinician Kawine Clermont where Ms. Paul then slapped J.B. in the face after sending Ms. Clermont to check on the students in Ms. Paul's class. J.B. laid on a mat in Ms. Clermont's classroom. He had difficulty getting up and complained that his arms hurt. He was then escorted from Ms. Clermont's room by Antranique Andrews, Miami Park Security Monitor, and Claribel Garcia, Assistant Principal, to the main office. J.B. was also given a bag of ice for his wrist while his grandmother, Linda Carter, who was called by Ms. Paul to come pick up J.B., spoke to school staff. According to Ms. Paul's final hearing testimony, she grabbed both of J.B.'s arms to keep from falling after he slapped her. He struggled to get away and they both fell to the ground. She also testified that she did not pull J.B.'s arms behind his back but rather laid him down on the floor and held his arms. This is inconsistent with her written statement given the day of the incident in which she stated, "Then he punched me. Several time [sic] in the face. I almost fell to the ground . . . I ask [sic] another student to get the mat. I hold one arm in the back, the other on the side. He lay [sic] down crying." Ms. Paul denies being alone in Ms. Clermont's room with J.B. or that she slapped him. Ms. Paul testified that she sent another student to get Ms. Clermont who then escorted J.B. to the clinician's room. The best person to corroborate Ms. Paul's recollection is Ms. Clermont, who did not testify. However, she provided a written statement in which she recited her version of the events. The statement is oddly written in the third person wherein she refers to herself as "Clinician." It states in part: Clinician was in her classroom when two students came over and reported J.B. slapped Ms. Paul. Clinician rushed over and J.B. was laying [sic] on a mat in a ball crying. Clinician had J.B. go over to her classroom. When J.B. went over to clinician classroom he layed [sic] back on mat balled up crying. The statement does not say that she, Ms. Clermont, brought J.B. over, but that she "had" him go to her classroom. This does not preclude the possibility that Respondent escorted J.B. to her room as J.B. claims. Security Monitor, Antranique Andrews, was directed by Assistant Principal Garcia to respond to Ms. Clermont's room. There she observed J.B. curled up and crying on the floor. When J.B. did not get up as directed by Ms. Andrews, she asked teacher's aide, Mr. Flowers (first name unknown) to assist. Together Ms. Andrews and Mr. Flowers got J.B. to stand up and wash his face before they took him to the office. Ms. Andrews observed red marks on J.B.'s arms and that he was upset. Ms. Andrews testified, "His arms were a little reddish. I guess you could say bruised, but red, like if you had an imprint from pressing, but that was it." When Ms. Carter arrived at school to pick up J.B., she was told that J.B. slapped Ms. Paul. She was not informed that J.B. was hurt during the altercation, although she was aware J.B. was given an ice pack because he complained of pain in his wrist. She also observed that the side of his face was red, which she first attributed to him being upset or crying. Video from a school security camera shows J.B. exiting the school while holding the ice pack on his wrist. When Ms. Carter and J.B. reached Ms. Carter's vehicle, J.B. asked for help to open the car door. J.B. was physically unable to open the door. When they arrived home, J.B. asked his grandmother to take him to the hospital because he thought his arms were broken. Ms. Carter, who was not feeling well herself, told J.B. to take a bath and go to bed. However, J.B. needed assistance with undressing because he could not use his arms. The next morning, J.B. still complained that he could not use his arms. Ms. Carter took J.B. to the emergency room at North Shore Hospital. J.B. received x-rays that revealed fractures in both arms. He was asked why he had red marks on his face and what happened to his arms. This was the first time Ms. Carter heard from J.B. what happened at school. Detective Bernise Charley, Miami-Dade Schools Police Department, was dispatched to the hospital where she interviewed J.B. and his grandmother. J.B. described how he had been slapped and physically abused by Ms. Paul while at school. She also spoke with the medical staff and took photos of J.B.'s face and arms. She personally observed red marks on the side of J.B.'s face consistent with a handprint. J.B. was transported to Joe DiMaggio Children's Hospital ("Joe DiMaggio") for further evaluation and treatment. X-rays were repeated at Joe DiMaggio and revealed that J.B. suffered a spiral fracture to his right humerus (upper arm), a distal radial and buckle fracture to his left forearm, and a buckle fracture to his left wrist. The injuries were determined to be consistent with the incident with Ms. Paul as described by J.B. J.B. and Ms. Carter were subsequently asked to meet with the Department of Children and Families ("DCF") and the University of Miami Child Protection Team on September 13, 2018, to review the incident. J.B. and his grandmother were interviewed separately and each described the incident. Dr. Joan V. Alvaranga's report states: J. is an 11 year old boy with fractures of the right humerous and left wrist which are consistent with the report he provided. In addition, J. had red marks on his face, which had resolved by the time of the CPT evaluation, which he reported he sustained when the teacher slapped him on the face. In my medical opinion, this case represents child physical abuse. Deviation from Appropriate De-Escalation Techniques Craig Siegel, District Chairperson for the Clinical Art Therapy Department and lead trainer for Safe Crisis Management, testified that teachers are provided training by the school district in a variety of techniques to safely de-escalate a potentially violent situation and to protect themselves and others. Ms. Paul completed Safe Crisis Management training in December 2016. Teachers are taught that they are to use non- physical intervention strategies first to de-escalate a threatening situation. These include, but are not limited to: talking; evading; blocking; escaping to a "safe zone;" and summoning help. Physical restraint is to be used only as a last resort if the student poses an imminent risk of serious injury or death to themselves or others. The physical techniques taught to teachers are designed to contain the student in the safest manner possible and reduce the risk of injury. Only the least amount of force necessary is to be used. The approved restraint methods do not include twisting a child's arms behind their back or slapping them in the face. Although Ms. Paul certainly had the right to protect herself when slapped in the face by J.B., it strains credulity to assert that a slap from a then 75-pound, 11 year-old boy, posed an imminent risk of serious harm or death such that it was necessary to apply enough force to break this child's arms in multiple places. No other adult witnessed the altercation, but they all saw J.B. curled up on the floor crying. J.B. was hurt badly enough that he was initially unable to get up off the floor without assistance, red marks were immediately seen on his arms and face, and he needed an ice pack for his wrist while still at school. J.B.'s story, that Ms. Paul twisted his arms behind his back and forced him to the floor, has remained consistent. No evidence was presented to suggest that J.B. received his injuries at the hands of anyone other than Ms. Paul. Regardless of whether Ms. Paul slapped J.B. or not, it is clear that she exceeded all bounds of reasonableness in her initial restraint of J.B. in reaction to him slapping her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Claude Paul guilty of misconduct in office and terminating her employment. DONE AND ENTERED this 20th day of November, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2019. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Claude A. Paul 6113 Southwest 33rd Street Miramar, Florida 33023 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact At all times material hereto, Respondent was employed by the Petitioner as a special education teacher at Parkview Elementary School, pursuant to a continuing contract with the School Board of Dade County, Florida. On June 6, 1986, Respondent was arrested for possession of cocaine. On approximately September 20, 1986, the principal at Parkview Elementary School was contacted by a probation officer regarding Respondent. The principal immediately advised Petitioner's Area Office and Petitioner's Office of Professional Standards of the phone call. He summoned Respondent to his office and advised her of the telephone contact. Respondent admitted that she had been arrested for possession of a controlled substance. Respondent continued to teach at Parkview Elementary School through the end of that school year and, possibly, during the subsequent summer session. According to the principal, Respondent continued to do a "fine job" as a teacher. By letter dated August 28, 1987, Petitioner advised Respondent that the superintendent of schools would be recommending to the School Board of Dade County, Florida, at its September 9, 1987, meeting that the School Board suspend Respondent and initiate dismissal proceedings effective at the close of business September 9, 1987, for immorality and misconduct in office. At the same time, Respondent was assigned to work in the Area Office and was removed from her teaching responsibilities at Parkview Elementary School. As a result of Petitioner assigning Respondent to the Area Office, several teachers at Parkview and the President of the PTA at Parkview inquired of the principal as to why Respondent was not at the school. They were told that there was a problem with the Area Office which would hopefully be resolved. On September 9, 1987, the School Board of Dade County, Florida, suspended Respondent from her employment and approved the recommendation for dismissal. As a result of the Board's action, information regarding Respondent's arrest, suspension, and termination appeared in the newspaper. Before the newspaper story of September 13, 1987, regarding the Board's action on September 9, 1987, there was no public knowledge and no public notoriety regarding Respondent's arrest. Even the arresting officer, who was unable to identify Respondent as the person he arrested, believed the person he arrested to be unemployed. Although the Office of Professional Standards will consider many factors in deciding whether to recommend to the School Board the suspension and/or dismissal of a teacher who has been arrested, the recommendation to suspend and dismiss Respondent was based solely on her arrest. The Notice of Specific Charges filed in this cause contains allegations that Respondent was previously placed on probation for the felony offense of a worthless check, that Respondent failed to complete the conditions of probation relative to the worthless check charge, that Respondent was arrested and charged with possession of a controlled substance, and that Respondent failed to complete the conditions of probation relative to that charge. No evidence was offered, however, in support of the allegations regarding any arrest on a worthless check charge, regarding Respondent being placed on probation, regarding any terms of such probation, regarding her failure to fulfill those conditions, or of the disposition of the charge of possession of controlled substance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent and awarding her back pay for the period of her suspension less any monies earned by the Respondent during that time. DONE and RECOMMENDED this 15th day of April, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4120 Petitioner's proposed finding of fact numbered has been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 10, and 12 have been rejected as not being supported by the evidence in this cause. Petitioner's proposed findings of fact numbered 2, 3, 5-8, and 11 have been rejected as being unnecessary for determining the issues in this cause. Petitioner's proposed findings of fact numbered 4 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 3-5 and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 6 has been rejected as being subordinate to the issues in this cause. COPIES FURNISHED: Joseph A. Fernandez, Superintendent School Board of Dade County Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire 2929 Southwest 3rd Avenue Miami, Florida 33129 Madelyn P. Schere, Esquire Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact On or about September 13, 1976, Petitioner Alvin Leonard Pondexter, was convicted in Leon County, Florida, of attempted petty larceny, a misdemeanor, on the charges of attempting on May 26, 1976 to steal two bicycles from students on the campus of Florida State University. At the hearing in this cause, Petitioner maintained that he only admitted to, and was convicted of, attempting to steal one bicycle. On June 12, 1976, while the charges contained in the preceding paragraph were pending and Petitioner was awaiting sentencing, Petitioner was arrested in Leon County, Florida, as he attempted to steal a ham from a Tallahassee food market. In an effort to free himself from restraint by the store security guard, Petitioner bit the tip of one finger off the guard's hand and bit the guard on the inside of a thigh. On December 20, 1976, Petitioner was convicted of battery on the guard and shoplifting, both misdemeanors, and was sentenced to one year in the Leon County jail. On or about September 9, 1979, Petitioner was arrested in Dade County, Florida, for lewd and lascivious behavior after police officers observed him performing oral sex with a 15-year-old male while in a parked car which was located in a beach parking lot off Collins Avenue. Bruce Munster, one of the officers who observed the Petitioner's conduct at the time of his arrest, noticed that the Petitioner became irate and caused Munster to pull his gun to effect the arrest. Petitioner refused to discuss the case at the hearing because the criminal charges against him in connection with this matter were dropped. Petitioner did not offer any rebuttal evidence at the hearing on this charge and in his deposition, he admitted that at the time of the arrest that his companion in the car was sitting in the front seat with his pants down. In 1980, Petitioner applied for a teacher's certificate. On October 21, 1980, his application was denied for the same reasons set out in the foregoing paragraphs. Petitioner failed to appeal or in any way contest the denial of his application. Dr. Patrick Gray, Executive Director, Division of Personnel Control, Dade County, testified as an expert in the areas of education and personnel administration in Dade County and the State of Florida, and as an expert with respect to the Code of Ethics and the Principals of Professional Conduct regulating teachers. The Petitioner's conduct amounts to immorality and moral turpitude, and lessens Petitioner's effectiveness as a public educator in the public school system. In addition, as stated by Dr. Gray the Dade County School system would not hire the Petitioner even if he were granted a certificate.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a Florida Teacher's Certificate. DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1984. COPIES FURNISHED: Alvin Leonard Pondexter 17120 Northwest 27th Street Miami, Florida 33056 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301
