Findings Of Fact The Respondent, Leonard Lawrence Buxton, currently holds a Rank II (Masters) teaching certificate (number 154610) expiring on June 30, 1989. In September, 1980, the Respondent was a teacher of Spanish students at American Senior High School in Dade County, Florida) Mr. Buxton was appointed class sponsor for the "class of 83" a short time after the beginning of the school year and after the initial orientation of sponsors. Some time soon after being appointed class sponsor, Mr. Buxton received authorization to conduct a class candy sale for money-raising purposes. The school treasurer, Mrs. Person, as well as Aaron Brumm, the director of student activities, instructed Mr. Buxton on financial matters concerning the candy sale and Mr. Brumm personally delivered all the subject boxes of candy to Mr. Buxton at the commencement of the sale activity. The record is not clear as to whether Mr. Buxton was instructed to turn in all monies derived from candy sales on a daily basis, weekly basis, or in some other fashion. The Respondent experienced difficulties soon after the beginning of the sale on January 20, 1981, involving collecting monies from students and missing boxes of candy. The missing candy disappeared while in Buxton's custody, since Brumm accounted for every box upon delivering it to Buxton. The Respondent's collection problems with his students concerning the proceeds of candy sales caused the sale to extend over a three month period. At the urging of Mr. Brumm, as well as his principal Lonnie Coleman, Respondent ultimately attempted to resolve the matter of collection of money and the missing boxes of candy, finally writing a personal check in the approximate amount of $302.40 payable to the school. That check was returned for insufficient funds by the payer bank. The Respondent contended that the account the check was written on had insufficient funds because his foster child, unknown to him, had withdrawn approximately $800 from that account, leaving insufficient funds to cover the check. In any event, the Respondent's principal, Lonnie Coleman, became aware of the deficiency and had a conference with the Respondent. Mr. Coleman told the Respondent to make the check good and "nothing will ever happen, there will be no problem". The Respondent paid the check and the principal considered the incident closed and initiated no negative job action toward the Respondent, merely orally reprimanding him. The principal felt this was an adequate remedy for any wrong the Respondent had committed in this instance, and following the incident, the principal recommended the Respondent for continued employement at his high school and found all his behavior as a teacher to be acceptable. The principal established that Buxton's personal problems did not render him ineffective as a teacher. Indeed, the principal found the Respondent to be a highly motivated, quite effective teacher, especially with Spanish-speaking students, and the principal would rehire the Respondent at the present time. It has been the practice in Dade County in the past for negative job action to only be initiated upon the principal's initial recommendation. On or about December 30, 1980, the Respondent was a passenger in his 1972 Pontiac which was being driven by an acquaintance, James Dausey, a young man who performed mechanical work on the vehicle. While Dausey was driving, the car was struck by a vehicle driven by Mrs. Ida LaPlant. Mrs. LaPlant offered to settle any damage claim Mr. Buxton might have "on the spot" or after he had obtained an accurate estimate of the damage to his car. The two parties negotiated for a time discussing the amount and the method of reaching the amount. Mrs. LaPlant offered approximately $500 to Mr. Buxton, but Mr. Buxton demanded $1,000 as he represented to Mrs. LaPlant that that amount was needed to cover any injury to Mr. Dausey as well as damage to his car. Mrs. LaPlant expressed the desire that they go to a body shop and obtain an estimate. He refused and demanded that she pay him $1,000 or he would call the police to investigate the accident. She did not want the police to become involved, so ultimately, at the Respondent's insistence, they went together to her bank where she withdrew $1,000 and gave it to the Respondent. The driver, Mr. Dausey, never complained of any injuries in her presence. In any event, the Respondent ultimately filed a claim for payment for damages sustained to his vehicle with his own insurance company representing that he had received no monies in payment for any damages sustained in that accident. Because of his misrepresentation concerning his reimbursement for damages sustained to his vehicle, the Respondent was prosecuted by the State Attorney for the Eleventh Judicial Circuit on, a two-count information charging the Respondent with filing a false and fraudulent insurance claim contrary to Section 817.234, Florida Statutes, and a count of grand theft pursuant to Section 812.014, Florida Statutes. On or about September 30, 1981, Respondent entered a plea of guilty to both counts and was placed on probation for a term of three years, although adjudication was withheld. He was ordered to make restitution to the Allstate Insurance Company in the amount of $294.00. The Respondent maintained he was attempting to get money from his insurance company to reimburse Mrs. LaPlant some of the money she had given him. In any event, it is uncontroverted that Mr. Buxton misrepresented to his insurance company the fact that he had received monies from Mrs. LaPlant, hence the prosecution. In March, 1979, the Respondent received from an employee and friend at the Salon of Music, located in Palm Beach County, a Sony radio "on approval". His friend who was employed at the store asked the Respondent to leave a check with him to hold "as security" while the radio was in the Respondent's possession. Respondent left a check for $436.75 with the Salon of Music, indicating at the time that there was probably not enough money to cover the check in the account. The two of them envisioned the check primarily as a receipt to secure future payment for the radio should the Respondent elect to buy it rather than present payment for the radio. After taking possession of the radio, the radio was stolen from the Respondent's apartment. The Respondent informed his friend at the Salon of Music and the check was then presented to the bank for payment and returned for insufficient funds. This check later became one of a number of checks for which the Respondent was criminally prosecuted in Palm Beach County, with the result that a plea of guilty was entered, with adjudication withheld and a full restitution made in the matter. Some time in May or June, 1980, the Respondent's life became emotionally and financially awry. The Respondent had been recently divorced, apparently without custody of his son. The Respondent became involved in an "affair of the heart" with a married woman who lived next door. This relationship apparently was concluded rather abruptly when her husband presented himself on the premises one day threatening the life of the Respondent and, being armed with a gun, demonstrating the present ability to carry out those threats. With some aid from the Boca Raton Police Department the Respondent precipitously and permanently vacated the area, and "went into hiding" for approximately one month. The Respondent "hid out" for approximately a week at an establishment called "the Bridge Hotel", later moving to the Florida Keys for the remainder of the month he was "under cover". The Respondent was obviously frightened and in fear of his life. As described by the psychiatric social worker with whom the Respondent counselled for approximately one year, the Respondent, during this period of hiding, made a series of precipitate "inappropriate decisions". The Respondent in effect, lived for the month he was under cover, at least in part, on checks written for cash, or directly for shelter or incidentals, to hotels and small commercial establishments in Palm Beach and Monroe counties, which proved to be invalid. In some instances the Respondent believed he had sufficient funds on deposit or could "cover" the checks before presentment. In at least one instance, a motel operator took his check with knowledge of its invalidity, allowing him time to secure its payment. The charges involved herein, or all but two of them, each relate to one of those invalid checks. The Respondent has admitted, in the pretrial factual stipulation, that he entered pleas of guilty to the criminal charges in Palm Beach and Monroe counties which stemmed from those various checks which had been written on insufficient funds. Both the judges in Palm Beach and Monroe counties accepted those guilty pleas, withheld adjudication of guilt in each case and established restitution schedules as part of the probation they imposed on the Respondent. The checks relating to Palm Beach county have all been paid. The Respondent is meeting all his probation requirements and is making regular payments as scheduled on the restitution plan imposed on him. His probation officer has found him very cooperative and making a genuine effort to reorganize his life and live it on a more positive and responsible plane. The genuineness of the Respondent's effort at personal improvement is borne out by the fact that he voluntarily sought aid from a psychiatric social worker, Cynthia Leesfield. Ms. Leesfield testified on behalf of the Respondent. She established him to be highly motivated and genuinely remorseful at the offenses he committed. She demonstrated those offenses to be unique and peculiar to the period of mental and emotional stress he was experiencing at the time. Ms. Leesfield established that the Respondent had engaged in a number of unfortunate illegal acts, but that he did not truly do so with a criminal intent, rather, during a stressful period when he was under fear for his life, he simply fled his apartment with his belongings and checkbook and wrote checks in order to live while he was in hiding and not earning any money. Ms. Leesfield had been a teacher with seven years experience prior to embarking on her present career. Her expert opinion, after counseling and treating the Respondent over a period of approximately one year, was that none of the behavior she had seen manifested by the Respondent made it inappropriate for him to return to a classroom setting. The episodes involving the invalid checks were not a planned pattern of misconduct, but rather related to his fear and anxiety concerning his personal life at the time. Two individuals with direct knowledge testified regarding the charges pertaining to the School Board's original action which thus only relate to the issue of dismissal. They were the Respondent himself and Lonnie Coleman, the Respondent's principal at American Senior High School. Regarding the incident charged involving kicking a student, Mr. Buxton readily admitted the incident. He stated that the kick was merely "in jest" or in the form of good-natured horseplay, and that he had, both before and after the incident, an excellent rapport with the student (a "mariel refugee") and the student's sponsor. Mr. Coleman, the principal, was aware of the kicking incident and orally reprimanded Mr. Buxton for it. He did not feel the incident was serious. He felt that such a reprimand was an adequate admonishment for this occurrence and established that there was obviously no intent to injure the student. No negative job action was suggested by the School Board at the time of the incident and after the discussion between the principal and Mr. Buxton regarding that matter it was considered closed by both of them. Indeed, a number of months later, after the incident was well known to Mr. Coleman, he still recommended Mr. Buxton for continued employment at American High School. Pat Gray, a personnel administrator in the school system, admitted that it was very unusual to bring charges against a teacher on an incident such as kicking a student unless the principal himself suggested such an action. The Respondent's principal, Lonnie Coleman, was the only witness other than the Respondent himself, to testify regarding the Respondent's competency and effectiveness as a teacher. He performed the annual evaluation on Mr. Buxton for the 1980-81 school year. He gave him a favorable evaluation. He found even after the incidents in question that he would continue to recommend Mr. Buxton for a position in instruction at American Senior High School. He found his behavior and record as a teacher to be consistently superior. Mr. Buxton performed well in the classroom and experienced problems only with his personal life. Mr. Coleman did not find the Respondent's personal problems of a sufficiently serious nature to alter his recommendation for continued employment. Mr. Buxton is an exceptional teacher, very effective at getting students interested in his subject matter, and in his preparation before his classes. Mr. Coleman was fully informed regarding the "candy sale charges" and the "kicking incident", and counselled with Mr. Buxton about those two situations and considered them closed without the necessity for any negative job action, and he is still of that opinion. The Respondent was recommended for summer employment in the school system after each of the acts charged against him in this case had occurred and were matters of record. Mr. Coleman initially recommended him for half-time work in the school system's summer program. Subsequently, at the request of the principal at Miami Springs Summer School where he was teaching half-time, he was asked to work full-time for the remainder of the summer. Mr. Buxton has held no other job in his adult life except teaching positions. He remains a highly effective and dedicated teacher, both in his preparation for and presentation of his subject matter, his conduct of classes, as well as his relations with his fellow professionals and his students. He presently works as a substitute teacher and does private tutoring during the period of his suspension. He is earnestly attempting to rehabilitate himself and keenly desires to continue his profession as an educator.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That the Education Practices Commission enter a final order suspending teacher's certificate number 154610 issued to Leonard Lawrence Buxton for a period of one year, provided however, that the imposition of that suspension be stayed so long as the Respondent remains in compliance with the terms of his probation as determined by the Circuit Courts in and for Palm Beach and Monroe counties, Florida, and is guilty of no other violations of Chapter 231, Florida Statutes, during the suspension period. Should those courts revoke his probation for any reason, or should he be found guilty of such violations, that stay should immediately be lifted and his license suspended for the remainder of the suspension period. The final order should provide that if he successfully completes his term of probation then these proceedings shall be dismissed. It is further recommended that the School Board of Dade County reinstate the Respondent in his position of employment, but retain his back pay. DONE and ENTERED this 7th day of July, 1982 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 7th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Jesse McCrary, Esquire 3050 Biscayne Blvd., Suite 300 Miami, Florida 33137 Elizabeth J. Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education The Knott Building Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county. Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case. Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board. For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the 2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3 Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam. At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures": CLASSROOM MANAGEMENT PROCEDURES Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor. If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming. * * * It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct. All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor. Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form. The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year. NEVER - Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4] The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)": Occurs when two or more students engage in physical force or violence against each other and they become so enraged that they do not stop when given a verbal command to do so, OR physical restraint is required, AND/OR someone is injured to an extent that requires immediate first aid or medical attention. Any serious fighting incident that causes injury or requires medical attention would result in a suspension. If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor. On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back. A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7 Notwithstanding that she had physically restrained A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8 Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class. Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where Dr. Menocal spoke to them separately. Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent. A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal. Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H. After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident. That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent. The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance). Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting). Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11 Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school." Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After first speaking with Dr. Menocal, Mr. Machacon spoke with A. H., A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent. During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident. None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that A. P. had hit A. H. while A. H. was being held by Respondent). Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter. By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her." Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.") Sometime before this meeting between M. M. and Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back." M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal, M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath. On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School Board's Region III Office, where she engaged in "professional development" activities. By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16 Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows: Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . . * * * Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17] I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape. * * * I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident. I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character. On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police. By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled September 7, 2010, meeting, that Respondent receive a 30-workday suspension. The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20, 2010. Respondent has served her suspension. By letter dated September 8, 2010, Respondent "request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH. A. P.'s and A. H.'s depositions were taken in anticipation of the hearing. At her deposition, A. P. declined to answer any questions. A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to Dr. Menocal the day of the Incident, when the matter was fresh in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19 A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 8th day of March, 2011.
The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2006.
Findings Of Fact On July 4, 1982, while driving a borrowed automobile, Petitioner was involved in an automobile accident. At the scene of the accident, a quantity of marijuana was found in the vehicle, and on July 9, 1982, in the Criminal Court of the City of New York, Petitioner was charged with criminal possession of marijuana in the second degree and operating a motor vehicle while impaired by use of drugs. The first charge was reduced to criminal possession of marijuana in the fourth degree. Petitioner had no knowledge that marijuana was located inside the automobile he had borrowed and was not operating the motor vehicle while impaired by drugs. Subsequent to his being discharged from the hospital where he was receiving treatment for injuries sustained in the accident, Petitioner received two anonymous telephone threats. Petitioner was advised that if he were to involve the owners of the borrowed automobile in the drug charges he would have reason to fear for his physical safety. Petitioner communicated these threats only to the attorney who was representing him on the criminal charges. On September 7, 1982, Petitioner entered a plea of guilty to an even lesser charge of criminal possession of marijuana in the fifth degree, a class B misdemeanor, for which he paid a $210 fine and a $40 assessment. Petitioner would not have entered a plea of guilty to that misdemeanor if he had not received the threats against him. On November 16, 1982, Petitioner filed a written application with the Department of Education requesting issuance of a Florida Teacher's Certificate. In Section V of the application, Petitioner indicated that he had been arrested in Queens County, New York, on July 21, 1982, for possession of 25 grams of marijuana and fined $210. On November 29, 1982, Marlene T. Greenfield, Administrator of Professional Practices Services of the Department of Education, wrote Petitioner to request additional information concerning his answer to the questions in Section V of his application. Petitioner replied to Mrs. Greenfield's request by letter dated December 13, 1982. In his reply, Petitioner explained as follows: I pleaded guilty to the possession of a small amount of marijuana for purposes of expediency since I was driving a friend's car at the time of arrest and rather than involving other people, I pleaded guilty and paid the monetary fine. Based upon the additional information furnished to the Department of Education by Petitioner, his application for a Florida Teacher's Certificate was denied. Petitioner was notified of the denial by a document entitled Notice of Reasons, signed by the Commissioner of Education and dated February 14, 1983. The parties stipulated, prior to the formal hearing in this cause, that Petitioner has met all requirements for issuance of a Florida Teacher's Certificate except those set forth in the Notice of Reasons. Petitioner's conviction for the fifth degree misdemeanor of possession of marijuana was entered upon his plea of guilty which was the result of threats and coercion. Petitioner has been licensed as a teacher in the State of New York for four years, where he served primarily as a substitute teacher but also as a term teacher by appointment. He has also received two satisfactory teacher evaluation ratings while serving as a substitute teacher in Broward County, Florida. On June 2, 1983, he was approved by the School Board of Broward County as a substitute teacher for the 1983-1984 school year, which approval may have been suspended pending his receipt of a Florida Teacher's Certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered issuing to Petitioner Jon Seth Wortman a Florida Teacher's Certificate. DONE and RECOMMENDED this day of September, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1983. COPIES FURNISHED: Eric R. Schwartz, Esquire 3500 North State Road 7, Suite 290 Lauderdale Lakes, Florida 33319 J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32302 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Donald L. Griesheimer Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether Respondent, Duval County Public Schools (DCPS), violated the rights of Petitioner, Katherine E. Otto, under the Florida Civil Rights Act, chapter 760, Florida Statutes.
Findings Of Fact Ms. Otto filed a Complaint with FCHR, alleging race, sex, and age discrimination against DCPS, having been employed by the school district as a school teacher from December 2009 until September 2010. The Complaint alleges that Dr. Alvin Brennan, the principal of the Forrest High School, where Ms. Otto worked as a teacher: (a) announced at a staff meeting that he "prefers all black male young teachers"; (b) announced at another staff meeting that "anyone who takes off a Friday or a Monday . . . will be fired"; (c) verbally harassed Ms. Otto; and (d) discharged her for calling in sick. The face of the Complaint shows that it was signed by Ms. Otto on October 24, 2010 - only weeks after the last date of alleged discriminatory conduct on September 8, 2010. However, the "date stamp," which also appears on the face of the Complaint, shows that it was not received by FCHR until October 25, 2011. Notably, FCHR sent to DCPS a "Notice of Filing of Complaint of Discrimination" on November 10, 2011, which was stamped as received by DCPS on November 16, 2011. At the hearing, Ms. Otto could not explain the apparent delay of exactly one year and one day between the date she signed the Complaint and the date it was stamped as received by FCHR. Ms. Otto testified that she never actually typed the Complaint. Further, she stated the typed Complaint was inconsistent with a handwritten version she originally submitted to FCHR "a month or two before" October 24, 2010. Surmising at the hearing that "someone" at FCHR must have typed the Complaint, Ms. Otto testified that she signed and returned the document even though it showed that she was 11 years older than her actual age of 50 years. Ms. Otto's Petition for Relief contains accusations about harassment and "racists remarks" by Dr. Brennan, and adds that he and other DCPS personnel "committed purjery to [the Commission]" [sic] during its investigation of the Complaint. Unlike the Complaint, the Petition for Relief also states that Ms. Otto was "was fired for no reason" as opposed to being fired for calling in sick. At the final hearing, Ms. Otto testified that she did not know why she was fired, and it was only "possible" that she was fired due to her race, gender, or age. Ms. Otto testified that her Complaint and Petition were based on events in August and September 2010, shortly after Dr. Brennan became the principal of Forrest High School. By the end of the 2009-2010 school year, Forrest High School was identified as "critically low performing," having received consecutive "school grades" of "F" or "D" over the preceding school years. The District was, therefore, required to treat Forrest High School as a "turn-around school," and replace/"reconstitute" much of its staff and administrative team. Dr. Brennan, a veteran educator and administrator of 27 years, was selected by the superintendent to replace the principal at Forrest High School at the beginning of the 2010-2011 school year, since he had a successful track record for improving other low-performing schools. Dr. Brennan conducted various staff meetings just before and during the first two weeks of the school year. According to Ms. Otto, Dr. Brennan stated at one such meeting that anyone who took a Friday off would be fired. Ms. Otto testified that Dr. Brennan stated at another meeting that he prefers to hire young African-American men. Ms. Otto thereafter "felt like [she] was being harassed, discriminated against because [Brennan] was just going after white women." Despite these negative "feelings" about Dr. Brennan, Ms. Otto never made a complaint to the school district about him or his comments. Ms. Otto stated that she privately met with Dr. Brennan on only two occasions. During the first private meeting at the beginning of the 2010-2011 school year, Dr. Brennan "yelled" at Ms. Otto for speaking with state officials who visited Forrest High School due to its "turn•around" status. The second private meeting was on September 8, 2010, when Dr. Brennan purportedly "harassed" Ms. Otto for missing lesson plans, and "yelled" that she was fired. In the days leading up to the September 8 conference, Dr. Brennan and Assistant Principal Jeravon Wheeler visited Ms. Otto's class and warned her about missing lesson plans. At all times, Ms. Otto was aware that she was required to have lesson plans readily available in her class. During a scheduled classroom observation on August 31, 2010, Ms. Wheeler (once again) noted Ms. Otto's lack of lesson plans. A post-observation conference was to take place on Friday, September 1, 2010. There is conflicting evidence as to whether Ms. Otto was present on that date. The record contains a post-observation "teacher assessment instrument" which Ms. Otto apparently signed and dated on September 1, 2010. However, Ms. Otto claims to have called in sick after her observation and did not return to the school until September 8, 2010. When summoned to Dr. Brennan's office on the morning of September 8, 2010, Ms. Otto assumed he wanted to discuss her illness-related absence and her discussions with "people from the State." Ms. Wheeler also attended the September 8 conference with Ms. Otto and Dr. Brennan. Contrary to Ms. Otto's view, Dr. Brennan and Ms. Wheeler testified that the September 8 conference was actually called to: (a) discuss the classroom observation; present a "non-compliance letter" for Ms. Otto's repeated failure to provide lesson plans; and (c) place her on a "Success Plan" formulated to improve her overall teaching performance. Ms. Otto walked out of the September 8 conference before Dr. Brennan had the chance to provide her with the Success Plan and non-compliance letter. Dr. Brennan's contemporaneous handwritten notes on the non-compliance letter indicated that Ms. Otto abruptly quit during the September 8 conference and "walked off the job." Ms. Otto testified that she left the September 8 conference because Dr. Brennan was screaming at her and yelled that she was fired. She denied, however, that Dr. Brennan made any comments about race, gender, or age at that time. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan neither raised his voice nor stated that Ms. Otto was fired during the September 8 conference. Rather, according to Dr. Brennan and Ms. Wheeler, it was Ms. Otto who became indignant during the September 8 conference, and who abruptly quit and walked out of the school after "throwing" her district-issued laptop on the desk of Dr. Brennan's assistant. Ms. Otto testified that she ultimately submitted lesson plans at some point after her August 31, 2010, observation, though that was disputed by Dr. Brennan. Regardless, Ms. Otto admitted during the hearing that she was "unprepared" during Ms. Wheeler's observation and the lesson plans entered into the record which she purportedly prepared for the August 31 observation were incomplete and inadequate. Dr. Brennan and Ms. Wheeler concurred that the lesson plans presented at the hearing were defective. Ms. Otto testified that she contacted a lawyer with the teacher's union immediately after the September 8 conference. Ms. Otto thereafter learned that Dr. Brennan did not have the authority to unilaterally fire her. Nevertheless, Ms. Otto advised the union lawyer that she would not go back to the school in any event because she was "allergic to it." Ms. Otto testified that the union lawyer gave her assurances that she would be reassigned to another school. These and other statements purportedly made by the union lawyer amounted to hearsay and were not corroborated by other, independent evidence. Shortly after the September 8 conference, Ms. Otto received from the school district a letter dated September 9, 2012, which indicated its recognition of Ms. Otto's resignation and encouraged her to contact the sender (Ms. Dawn Gaughan) with any questions. Ms. Otto did not respond to the September 9, 2012, letter, assuming that the union lawyer was securing her another teaching position in a different school. Ms. Otto testified that she called in substitutes on the days immediately following the September 8 conference using the school district's automated telephone system. However, she also stated that the personal identification number she needed to access the system was invalid at the time of her departure from the school. Having lost faith in the union lawyer's assurances, Ms. Otto testified that she eventually spoke with the school district human resources' personnel about the September 8 conference, but could not remember when that occurred. Ms. Otto subsequently filed a claim for unemployment compensation which was rejected on the grounds that she voluntarily resigned from her position. However, an Unemployment Compensation Appeals Referee ultimately determined that Ms. Otto was entitled to compensation because (during a telephonic hearing on the matter) the school district presented inadmissible hearsay to debunk Ms. Otto's assertion that she had been fired. At the hearing, Ms. Otto presented the testimony of Ms. Judith Julian, who claimed that she was "forced to resign" due to harassment by Dr. Brennan and Ms. Wheeler. Ms. Julian stated that Dr. Brennan "harassed" her by forcing her to park in the teacher's parking area, and Ms. Wheeler harassed her by "following" Ms. Julian on campus during a phone call. Ms. Julian had "no idea" whether such "harassment" was motivated by any animus toward her gender, age, or race, and also commented that she was "replaced" by a male Caucasian. According to Ms. Julian, lesson plans: (a) are "absolutely" important; (b) should be available at all times; and are part of a teacher's contractual duties. Ms. Julian testified that the only personal interaction she had with Dr. Brennan was during a classroom observation when Dr. Brennan stated that she was "a great teacher." Ms. Julian stated that she never heard Dr. Brennan make statements about Ms. Otto's race, gender, or age. Ms. Julian did not attend and, therefore, could not comment on the September 8, 2010, conference. She did, however, recall statements purportedly made by Dr. Brennan at a staff meeting regarding a preference to hire African-American teachers. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan made no such announcement, though he did discuss the need for a staff which reflected the demographics of the community served by Forrest High School. Dr. Brennan also presented statistics showing that his hiring decisions had no appreciable impact on staff demographics at the high school. Rather, African-American staff members increased by only seven percent and the percentage of male teachers at the school actually decreased between the 2009-2010 and 2010-2011 school years. Regardless, the testimony and evidence of record show that school principals do not have unilateral authority to terminate a teacher. The testimony offered by Dr. Brennan and Ms. Wheeler was consistent with contemporaneous notes and statements they prepared in September 2010 as well as other written statements they later prepared for the School District's Office of Equity and Inclusion in November 2011. The collective bargaining agreement between the school district and the teachers' union, Duval Teachers United (DTU), stresses the importance of lesson plans and the expectation that teachers shall have them at all times. The agreement also provides that insubordinate conduct and failure to prepare lesson plans merit discipline up to and including dismissal. Further, the collective bargaining agreement also contains school district policies against harassment and directions on how to process complaints. Ms. Otto was aware of these policies and procedures, but never lodged any complaints against Dr. Brennan with school district officials. Based on the testimony and evidence of record, the greater weight of the evidence demonstrates that Ms. Otto resigned from her position during a September 8, 2010, conference with Dr. Brennan and Ms. Wheeler. Further, the evidence shows that Ms. Otto failed to provide timely and complete lesson plans despite several warnings from her superiors. This failure alone would support dismissal, as would Ms. Otto's insubordinate conduct or abandonment of her post. The Employment Complaint of Discrimination, filed with FCHR by Ms. Otto appears to be signed and dated by her on October 24, 2010, only 46 days after the last incident giving rise to her claim occurred. However, the date stamp from FCHR on that document is for October 25, 2011, more than 365 days after the September 8, 2010 incident. No explanation was given for this discrepancy in the dates on the complaint giving rise to this matter. Ms. Otto testified at the hearing that she "didn't care which way this case goes" and was "happy" just to be there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Katherine E. Otto's Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine E. Otto Apartment 407 7740 Plantation Bay Drive Jacksonville, Florida 32344 Katherine E. Otto 785 Oakleaf Plantation Parkway, Unit 814 Orange Park, Florida 32065 David J. D'Agata, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
