The Issue The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact Petitioner ("Petitioner" or "School Board") is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Rosalinda Morales (Respondent) has been employed by the School Board for nine years and, concerning the matters at issue in this hearing, was a classroom teacher at Inwood Elementary School in Winter Haven, Florida. She was employed pursuant to terms of a collective bargaining agreement. Inwood Principal Amy Heiser-Meyers (the "Principal") issued a letter of concern to Respondent on September 28, 2011, in which she reminded Respondent of the importance of timely confirming her students' attendance each day. The Principal provided written confirmation of a verbal warning to Respondent by letter dated June 7, 2012, concerning Respondent's failure to advise the school she would be absent from work. The Principal provided written confirmation by letter dated November 27, 2012, of a second verbal warning for Respondent's failure to advise the school that she would not be present and for arriving late at work on another occasion. The Principal issued a written reprimand, following a conference with Respondent, by letter dated February 13, 2013. The written reprimand was the result of Respondent having failed to follow specific instructions and not properly handling student documentation. The Principal issued Respondent a second written reprimand by letter dated February 15, 2013, following a conference resulting from Respondent having submitted attendance records indicating that a student was present in class when, in fact, the student was absent. By letter dated February 28, 2013, the Principal requested that Superintendent John Stewart suspend Respondent without pay for several incidences of ongoing misconduct. These included Respondent's use of inappropriate and disparaging student behavior techniques; Respondent being unaware that two kindergarten students had walked out of her class without permission; and Respondent's repeated use of obscenities and disparaging comments regarding staff members while present at the school. Dennis F. Dunn, the Assistant Superintendent for Human Resources, issued a letter dated March 4, 2013, giving Respondent a three-day suspension without pay as a result of this ongoing misconduct. On July 10, 2013, the Principal wrote Superintendent Kathryn LeRoy again requesting a suspension without pay for Respondent as the result of Respondent's continued, ongoing misconduct in a number of incidences set forth in that letter involving failure to follow established school protocol, absence from work, and her lack of knowledge of the whereabouts of young students. Based upon that letter, the assistant superintendent for human resources issued a letter, dated July 18, 2013, suspending Respondent without pay for five days. Respondent never filed a grievance or any formal complaint contesting the above-described disciplinary actions taken as the result of her behavior. On May 8, 2013, Respondent was teaching her kindergarten class. She had 18 students in her classroom. She was being assisted in her classroom that day by Ms. Ellistine Smith, a retired principal. Near dismissal time, at approximately 2:30 p.m., D., a student in the classroom, became disruptive. D. had behavior problems throughout the school year. D. refused to stay in his assigned area and constantly disrupted lessons. D. is known as a "runner," meaning he would run away from teachers or the campus in general. Respondent regularly had to chase D. to try to catch him. She would never be able to catch him because whenever she got close, he would again run away. On that day, D. decided not to participate in class. He removed his shoes and threw them at other students, at the ground, and at Respondent. He took off his shirt and threw it at students. Respondent directed D. to go to time out, but he refused. Respondent asked Ms. Smith to keep an eye on the class while she removed D. from the classroom. Respondent looked outside the classroom for the paraeducator who normally sits in the hallway, but she was not present at that time. Respondent decided to take D. to the fifth grade building to have him stay with another paraeducator. D. voluntarily walked with Respondent down the hallway to the fifth grade building. She was holding him by the wrist. When they arrived at the fifth grade building, D. resisted going further and tried to pull away from Respondent. She maintained a stronger grip on his wrist to prevent him from running away. Respondent then opened the door to the fifth grade building, did not see anyone, but heard the copy machine running in the copy room. Respondent began to lead D. into the ESOL (English for Speakers of Other Languages) room outside the copy room, but he let his body go limp. Respondent lifted him to carry him into the building and towards the copy room, but could not go very far due to her petite stature. She dragged him a short distance to the copy room where Venise Stinfil, a third grade teacher was working. Respondent left D. with Ms. Stinfil, stating that "[she] can't handle or deal with this at this time, because I'm being observed." Respondent dropped the student's arm and returned to her classroom. Ms. Stinfil noticed scuff marks on D.'s shirt and that the shirt was very dirty and the student distraught. Fifth grade teacher Erin Rodgers was also present at the time Respondent brought D. to Ms. Stinfil's room. She saw Respondent holding D. by his arm and dragging him a short distance into Ms. Stinfil's room. Respondent did not intend to injure D., and he did not appear to have any physical injuries as a result of being brought to Ms. Stinfil's room. Ms. Stinfil testified that her training would have led her to handle the situation with D. differently. When he went limp and laid on the floor, she would have talked with him to try and get him to stand up to move on to their destination rather than taking him by the wrist and pulling/dragging him along. If the student refused to get up, she would have called someone from administration, who was trained in handling such situations, to help talk the student into compliance or appropriately help him up and move to their destination. She had been trained to never put her hands on students. Respondent acknowledged that the procedures she used in taking D. from her classroom might not have been the preferred method in which other teachers had been trained, but it was a choice of handling such matters she had used before. Respondent received a letter from Mr. Dunn dated July 29, 2013, advising her that Superintendent LeRoy would recommend her termination from employment at the next meeting of the School Board on August 13, 2013. When Respondent requested a hearing concerning the termination, she was suspended without pay pending the outcome of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 17th day of January, 2014, 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 17th day of January, 2014. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19, North Clearwater, Florida 33761 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 Kathryn LeRoy, Superintendent Polk County School District Post Office Box 391 Bartow, Florida 33831
The Issue The issue in this case is whether a schoolteacher physically assaulted three third-graders in his music class, thereby giving his employer, the district school board, just cause to terminate his employment.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to this case, Respondent Manuel Brenes ("Brenes") was a music teacher at Little River Elementary School ("Little River"), which is within the Miami-Dade County Public School System. The alleged events giving rise to this case allegedly occurred on November 18, 2005. The School Board alleges that on that date, Brenes lost his temper in the classroom and physically assaulted three students, each of whom was in the third grade at the time and about nine or 10 years old. More particularly, it is alleged that Brenes poked a boy named K. C. in the head several times; choked, slapped, and/or picked up and dropped another boy, K. M.; and threw a chair at a third boy, whose name is C. P. For his part, Brenes denies these charges, claiming that his interventions were neither assaultive nor potentially harmful, but rather were reasonably necessary either to protect students from harm or to maintain order. There is no question that an incident occurred in Brenes's classroom on November 18, 2005, and that the students K. C., K. M., and C. P. were involved. The evidence adduced at hearing, however, is conflicting, confusing, and often incredible, affording the fact-finder little more than a fuzzy picture, at best, of what actually happened. Five eyewitnesses to the disputed incident testified. These were four student-accusers (comprising the three alleged victims and one of their classmates, a girl named "Kate"1) plus the accused teacher himself. In addition, Pamela C. ("Ms. C."), who is the mother of K. C. and also a teacher at Little River, testified regarding her observations and impressions as the "first responder" to arrive on the scene after the disputed incident had taken place. (To be clear, Ms. C. did not see Brenes commit any wrongful act; she has maintained——and testified——that Brenes made incriminating admissions to her in the immediate aftermath of the events at issue.) None of these witnesses impressed the undersigned as wholly reliable; rather, each had credibility problems that have caused the undersigned to discount his or her testimony to some degree. For example, every eyewitness who testified at hearing had made at least one prior statement about the incident that differed in some unexpected way from his or her subsequent testimony. Moreover, to the extent sense can be made of any given eyewitness account, there exist material discrepancies between the witnesses' respective stories. The upshot is that the undersigned does not have much persuasive, coherent, consistent evidence upon which to make findings of fact. Given the generally poor quality of the evidence, which ultimately precludes the undersigned from making detailed findings of historical fact, a brief summary of the key witnesses' testimonies about the controversial event will next be provided. These summaries, it is believed, give context to the limited findings of historical fact that then follow; they also should help explain the determinations of ultimate fact derived from the findings. It is important to note, however, that the summaries below merely report what each witness said occurred; they do not necessarily, or even generally, correspond to the undersigned's findings about what likely took place in Brenes's classroom on November 18, 2005. K. C. K. C. testified that the incident began when one of the boys told a joke that made "the whole class" laugh. Brenes was teaching a lesson at the time, writing on the board. Whenever Brenes faced the board, this particular boy would make "funny faces behind ["Brenes's] back," and when Brenes turned around, the boy would sit down. One student, C. P., continued to laugh, and Brenes made him stand in the corner. Undeterred, C. P. kept laughing. Brenes grabbed the two front legs of a chair, lifted it over his head, and threw the chair at C. P., who "ducked to the ground" to avoid being hit. After that, C. P. was frightened and remained on the ground "for like five minutes." Brenes told the students to put their heads down. He walked over to K. C. and poked the boy in the head three times, apparently for no reason. Then Brenes grasped K. M. by the throat and lifted the student, with one arm, off the ground and over his (Brenes's) head. While holding K. M. in the air by his throat, Brenes shook and slapped the boy before using two arms to set him down. A short while later, Ms. C. entered the classroom, having been summoned by Brenes. K. C. told his mother what had just occurred. Their conversation, as Ms. C. remembers it, will be recounted below. Angered and upset by what her son had reported, Ms. C. removed K. C. from Brenes's classroom and took him back to her own room. There, on November 18, 2005, K. C. wrote the first of two statements about the incident. K. C.'s second statement, dated November 23, 2005, was written in his mother's classroom as well. The most noteworthy discrepancy between K. C.'s prior written statements and his testimony at hearing is the absence of any mention in the prior statements about Brenes having poked him in the head.2 Asked at hearing about this omission, K. C. testified that he had "forg[o]t[ten] that part" because Ms. Castillo (the principal) rushed him to complete his statements.3 K. M. K. M. testified that "everybody was laughing" because the classroom smelled bad. Brenes put C. P. in the corner and then threw a chair at him. C. P. moved or ducked, however, and hence he was not struck by the chair. Brenes hit K. C. on the head. Then Brenes caught K. M. laughing at him (Brenes). Consequently, Brenes grabbed K. M. by the throat with both hands, lifted him out of his seat, and held him in midair, so that his feet were off the ground. Brenes held K. M. at arm's length, with his arms straight out from his body, for about one "second" before setting the boy down. Brenes did not shake or slap K. M., who was able to breathe while Brenes held him by the neck, suspended off the ground; indeed, K. M. never felt as though he were choking, even as he was practically being hanged. Shortly thereafter, K. M. wrote a statement about the incident, which is dated November 22, 2005. In the statement, K. M. made no mention of Brenes's having thrown a chair, nor did he report that Brenes had hit K. C. in the head, as he would testify at hearing. C. P. According to C. P., the trouble began when K. M. made C. P. laugh, which was sufficiently disruptive that Brenes told C. P. to stand in the corner. This discipline proved to be ineffective, for C. P. continued to laugh. C. P.'s ongoing laughter caused Brenes to grab a chair and walk quickly ("a little bit running") towards C. P. The boy ducked, and the chair, which remained in Brenes's hands and was not thrown, struck the wall. C. P. was unable to give consistent testimony at hearing concerning the distance between his body and the spot where the chair hit the wall. In different answers he indicated that the chair struck as near to him as two or three feet, and as far away as 20 feet. Brenes put the chair down, nowhere close to any students, and told the children to put their heads down. C. P. finally stopped laughing. In a discovery deposition taken before hearing, C. P. had testified that he thought Brenes's use of the chair as a disciplinary tool was funny. At hearing, however, he claimed that he had "just made that up" and given false testimony at the deposition. C. P. testified that Brenes had swung him by the arm, but he could not keep straight when this had occurred. At first, C. P. said that Brenes had taken his arm and swung him after sending him (C. P.) to the corner, because C. P. had kept on laughing despite the mild punishment. Then, because C. P. "was still laughing," even after having been swung by the arm, Brenes had rushed at him with a chair, ultimately causing the boy to quit laughing. Later in the hearing, however, C. P. changed his story and explained that Brenes had grabbed his arm and swung him around after the "chair affair"——when C. P. was no longer laughing——for the purpose of leading him back to his seat. Yet another version of the "arm swinging" episode appears in a prior statement dated November 21, 2005, wherein C. P. wrote that after Brenes had threatened him with a chair, he (C. P.) "was still laughing so [Brenes] took my arm and he [swung] me." Testifying about what Brenes did to K. M., C. P. stated that the teacher had taken K. M. by the neck and shaken him, lifting the boy up from his chair and then putting him back down, all because K. M. had been laughing. This testimony corresponded fairly closely to C. P.'s statement of November 21, 2005. Interestingly, however, on December 13, 2005, C. P. had told the detective who was investigating the charges against Brenes that Brenes merely had grabbed K. M. by the shirt and placed him back on his chair because K. M. was "playing around." C. P. also informed the detective that "the class [had been] laughing and playing, and Mr. Brenes was trying to stop them." C. P. said nothing at hearing about Brenes's allegedly having struck K. C. on the head. Likewise, he did not mention, in his written statement of November 21, 2005, the alleged attack on K. C. However, C. P. did tell the detective on December 13, 2005, that he had seen Brenes "tap" K. C. on the head. Kate Kate was in the classroom when the disruption occurred, although she did not see "all of it, really." She testified that, at the beginning of class on November 18, 2005, while Brenes was calling the roll, some boys were talking and laughing, and they kept on laughing even after Brenes had instructed them to stop. C. P. was one of the laughers. Brenes made him stand in the corner. The laughter continued, so Brenes got up and threw the chair on which he had been sitting toward the wall where C. P. was standing. The chair flew across the room, in the air, and hit the wall. C. P. ducked and was not harmed. Meantime, K. M. was laughing. Brenes "grabbed him up" and talked to him. K. M. started to cry, and Brenes let him go. Kate did not see anything untoward happen to K. C. Rather, Brenes "just talk[ed] to him, because he was laughing, too." After the incident, Kate prepared a written statement, which is dated November 21, 2005. As far as it went, her hearing testimony was essentially consistent with her prior statement. The prior statement, however, contains an additional detail about which she said nothing at hearing. In her statement, Kate wrote that, after throwing a chair in C. P.'s direction, Brenes took a table and hit a desk with it, causing the desk to hit the wall. Ms. C. Ms. C. was at lunch on the day in question when two students approached her with a request from Brenes that she come to his classroom, where her son was presently supposed to be having a music lesson. Ms. C. told the students that she would be there in about five minutes. When Ms. C. arrived, Brenes's students were well- behaved and "sitting very quietly." Brenes informed Ms. C. that her son, K. C., had been disrespectful to him, in particular by laughing at Brenes as though he were "a stupid person." Upon learning of her son's misbehavior, Ms. C. was neither perturbed nor nonplussed, but skeptical; she immediately demanded an explanation from Brenes: "How do you know when someone is laughing at you as though you're a stupid person?" After being persuaded that her son had behaved badly, Ms. C. reprimanded him in front of the class. Brenes thanked Ms. C. for coming, and she turned to leave. Before taking his seat, K. C. said, "But mommy, that's not all that happened." "What happened?" she asked. "Mr. Brenes poked me in the head," replied K. C. Ms. C. asked Brenes if this were true, and Brenes admitted that he had "tapped" K. C., but not hard enough to cause pain. Ms. C. started to leave, but K. C. stopped her again: "But mommy, that's not all." Thereupon, an exchange ensued much like the one just described, except this time, K. C. reported that Brenes had thrown a chair at C. P. "Mr. Brenes, did you throw the chair?" Ms. C. asked. Again, Brenes admitted that the accusation was true, but denied endangering the children. Before Ms. C. could leave, K. C. stopped her for the third time, saying, once again, "But mommy, that's not it." This initiated the now-familiar pattern of dialogue. K. C. accused Brenes of having picked up K. M. and dropped the boy "hard." Ms. C. asked Brenes if he had done that. Brenes conceded that he had, yet he assured Ms. C. that the children had never been in danger. Ms. C. had heard enough. She instructed K. C. to leave the classroom with her, which he did. The two of them proceeded directly to the principal's office. Ms. C. reported the incident to the principal. After listening to Ms. C. and her son, the principal decided to have Brenes removed from his class, and she called the school police. (Evidently, it was not thought necessary to hear from Brenes before taking these actions.) Brenes was kept out his class for a day or two but then was allowed to return to his regular duties. This upset Ms. C., who felt that "nothing was being done." As a result, Ms. C. "took it upon [her]self" to call the School Board's "Region Office" and lodge a complaint in her capacity as parent. Ms. C. was told to prepare an "incident report," which she did, on November 22, 2005. She submitted the incident report the following day. Shortly thereafter, Brenes was removed from Little River and administratively reassigned to the Region Office pending the outcome of the investigation. Brenes On November 18, 2005, Brenes met a class of third- graders at the cafeteria and took the students to his music room for a lesson. At the time, his music classes were being held in a portable classroom because Brenes's regular room had been damaged in a hurricane. Brenes's temporary classroom had an unpleasant odor. The room's bad smell caused the children to go "berserk" upon arrival; many began running around and misbehaving. One of the boys, C. P., pushed another student to the floor. The tables in the room were on wheels, and some of the children were pushing a table toward the boy on the ground. Brenes pushed the table out of the way, so that the student would not be hurt.4 Meantime, K. M. was engaging in horseplay, throwing himself off his seat and landing on the floor. Brenes viewed this misbehavior as not just disruptive, but potentially dangerous, so he took hold of the naughty child at the waist, lifted him up off the floor, and placed him back on his seat where he belonged.5 The students continued to be disruptive, so Brenes tossed a chair toward the wall, away from all the students, to grab their attention and stop the rowdy behavior.6 This quieted the students down——except for K. M., who started running for the door, where C. P. was standing with his arm outstretched, blocking K. M.'s path. Brenes rushed over and pulled C. P. away from the door to prevent a dangerous collision.7 Brenes's disjointed testimony fails to give a cogent explanation for why C. P. had been standing next to the door in the first place.8 In a prior statement, however, Brenes reportedly had told the detective that, before having tossed the chair, he had taken C. P., who was misbehaving, by the arm and led him to the corner, where the student was to remain until he had calmed down. This prior statement finds ample corroboration in the students' respective accounts. While the commotion continued, K. C. was laughing at the situation. Walking past the student's desk, Brenes tapped K. C. gently on the head and told him to quit laughing. About this time, the students calmed down and became quiet. Brenes commenced teaching his lesson for the day, and thereafter the class paid attention and stayed on task. Near the end of the period, Ms. C. appeared in the classroom, having been summoned by Brenes earlier when her son (among others) was misbehaving. Brenes was not asked at hearing to recount the particulars of his conversation with Ms. C. Whatever was said, however, resulted in Ms. C.’s yelling at Brenes in front of the whole class. Brenes, trying to defuse this awkward situation, became apologetic and attempted to explain what had happened, but to no avail. Ms. C.——who took her little boy's word against Brenes's——would not let Brenes tell his side of the story. Resolutions of Evidential Conflict Regarding the Disputed Event It is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true; for dismissal to be warranted, in other words, no more (or less) must be shown than that there is a slightly better than 50 percent chance, at least, that the historical event in dispute actually happened as alleged. As the fact-finder, the undersigned therefore must consider how likely it is, based on the evidence presented, that the incident took place as alleged in the School Board's Notice of Specific Charges. Having carefully evaluated the conflicting accounts of the disputed event, the undersigned makes the following findings concerning what happened in Brenes's classroom on November 18, 2005. It is highly likely, and the undersigned finds with confidence, that the incident stemmed from the misbehavior of students who were cutting up in class and generally being disruptive. There were, however, neither allegations, nor proof, that Brenes was in any way responsible for this misbehavior. Rather, it is likely, and the undersigned finds, that the children became boisterous in consequence of the classroom's foul odor. The students K. C., K. M., and C. P. were the ringleaders of the rowdy students, and, in the course of the event, Brenes was compelled to redirect each of them. More likely than not, C. P. was the worst behaved of the three main offenders. Because C. P. was clowning around, Brenes placed him in the corner. It is likely that when he did this, Brenes took C. P. by the arm and led him to the spot where he was to stand. The evidence is insufficient to persuade the undersigned that Brenes touched C. P. in a manner that was intended, or reasonably would be expected, to cause harm or discomfort; it is possible that this occurred——the odds, on this record, being roughly in the range of 25 to 40 percent——but not likely. As for what exactly happened with K. M., the undersigned can only speculate. The undersigned believes that the likelier of the possibilities presented is that the boy was rolling off his chair and flopping to the ground, more or less as Brenes described K. M.'s disruptive activity (although Brenes probably exaggerated the risk of danger, if any, this misbehavior posed to the child). The likelier of the scenarios presented (having a probability somewhere in the neighborhood of 35 to 50 percent) is that Brenes physically returned the boy to his chair, picking him up in a reasonable, nonpunitive fashion and similarly setting him back down.9 The possibility that Brenes strangled the boy, as charged, is relatively low——between 15 and 30 percent——but nevertheless nontrivial and hence bothersome, given the seriousness of the accusation. That said, however, the undersigned is unable to find that any of the possibilities presented is more likely than not true. Therefore, the School Board's proof fails as a matter of fact on the allegation that Brenes choked, slapped, or otherwise assaulted K. M. Brenes admits having tossed a chair, a point that is corroborated (to some degree) by all of the eyewitnesses except, ironically, C. P., the student toward whom the chair was allegedly thrown. Brenes, however, denies having tossed a chair at any student, and the undersigned credits his denial. More likely than not, it is found, Brenes tossed a chair away from the students, as he initially claimed, to focus the students' attention on something other than the rambunctious boys who were creating a disturbance. (The undersigned doubts that the chair was tossed to prevent injury, as Brenes asserted at hearing.) Brenes also admits that he tapped K. C. on the head while urging the boy to be quiet. It is likely——and indeed Brenes effectively has admitted——that this was done as a disciplinary measure. Brenes denies, however, that he tapped the child in a manner intended, or as reasonably would be expected, to cause harm or discomfort. The undersigned credits Brenes's denial in this regard and therefore rejects as unproven by a preponderance of the evidence the charge that the teacher forcefully "poked" K. C. in or about the temple. Other Material Facts The evidence is undisputed that after Brenes had gotten the three rowdiest boys under control——which seems to have taken but a few minutes——the rest of the class fell in line and behaved for the balance of the period. It is reasonable to infer, and the undersigned does find, that whatever actions Brenes took were effective in restoring order to the class. That is to say, Brenes's conduct did not create chaos, but quelled a disturbance that, from every description, could have gotten out of hand. Such efficacy would not justify improper means, of course, but the results Brenes obtained counsel against any easy inference that his alleged misconduct impaired his effectiveness in the classroom. Continuing on the subject of Brenes's alleged ineffectiveness in consequence of his alleged misconduct, the undersigned is struck by the undisputed fact that, notwithstanding the accusations that had been lodged against Brenes, the principal of Little River allowed the teacher to return to his classroom after spending one day in the library. Thereafter, he taught his music classes, as usual, for five or six days before being administratively assigned to the Region Office effective on or about December 5, 2005. The significance of this fact (Brenes's post-incident return to the classroom) lies in the opportunity it afforded the School Board to observe whether Brenes's alleged misconduct actually had, in fact, impaired his effectiveness as a teacher. As the fact-finder, the undersigned cannot help but wonder: What happened in Brenes's classroom in the next two weeks after the incident? The School Board did not provide an answer. Instead, it presented the conclusory opinions of administrators who declared that Brenes could no longer be effective, which opinions were based on the assumption that all the factual allegations against Brenes were true. Because that underlying assumption was not validated by the evidence adduced in this proceeding, however, these opinions lacked an adequate factual foundation. Moreover, the undersigned infers from the absence of any direct proof of actual impairment that Brenes's effectiveness stayed the same after November 18, 2005.10 While Brenes was spending time at the Region Office pending the outcome of the investigation, another teacher who also was awaiting the results of an investigation began to pick on Brenes, ultimately provoking Brenes into an argument on a couple of occasions. During one of these arguments, Brenes responded to his antagonist by saying, "fuck you." While this profanity might have been overheard by other adults nearby (the evidence is inconclusive about that), it is clear that no students were around. Brenes was the only witness with personal knowledge of these arguments who testified at hearing; in lieu of firsthand evidence, the School Board offered mostly hearsay that failed to impress the fact-finder. In light of Brenes's uncontroverted testimony that the other man had been badgering him "for the longest time," the fact that Brenes lost his temper and used vulgar language, while unadmirable, is at least understandable. The bottom line is, this was a private dispute between adults, one of whom——the one not accused of wrongdoing as a result——was actually more at fault as the provocateur. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Brenes is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Brenes is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Brenes of all charges brought against him in this proceeding; (b) providing that Brenes be reinstated to the position from which he was suspended without pay; and (c) awarding Brenes back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 27th day of February, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2007.
The Issue Whether respondent should be terminated from her employment as a continuing contract school teacher, pursuant to Section 231.36(6), Florida Statutes (1981), for alleged gross insubordination within the meaning of Section 231.36(6), Florida Statutes (1981), and Rule 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent Elva Jean Newland has been a school teacher for 36 years. She has a Bachelor's Degree in Education from Radford College, a Master's Degree in Learning Disabilities from the University of Virginia, and has completed numerous post-graduate courses. (Testimony of Respondent) She has spent her career teaching young children, ages five through eleven. For the past 16 years, she has been employed as a teacher by the School Board of Charlotte County. Until her suspension in May, 1982 (for alleged gross insubordination) , she was employed, under continuing contract, as a kindergarten teacher at Neil Armstrong Elementary School in Port Charlotte, Florida. (Testimony of respondent) She has developed a personal philosophy on discipline in the classroom. Essentially, she maintains that "You cannot teach a child unless you have that child's attention. You cannot get his attention if there is a disruptive influence. (Tr.-175) For many years, she handled disruptive influences in the classroom by using a small paddle which she referred to as "Mister Bolo." When students became disruptive (such as talking too loud or running about the room) she would invite "Mr. Bolo" to "talk" to them. This was accomplished by the child spanking his or her own hands or feet (after removing the shoes) with the bolo paddle. If the child did not administer the spanking, respondent would. (Testimony of respondent, Hrstka) At her principal's request, respondent eventually discarded the "Mr. Bolo" paddle. The School Board maintains that she used other methods of disciplining disruptive children, that she repeatedly administered corporal punishment in direct disobedience of orders of her superiors and rules of the School Board, and that such misconduct constitutes gross insubordination. Respondent denies having administered corporal punishment in violation of orders or rules, and denies the charge of gross insubordination. II. Rules for Administering Corporal Punishment During the 1980-81 and 1981-82 school years, respondent was aware of the rules of the School Board and the Neal Armstrong Elementary School governing corporal punishment. (Prehearing Stipulation, p. 4) These rules defined "corporal punishment" as: the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term corporal punishment does not include the use of such reasonable force by a teacher or principal as may be necessary to protect themselves or other students from disruptive students. (P-2) Essentially,a teacher may administer corporal punishment to enforce discipline (where other methods of seeking cooperation have failed) in accordance with specific criteria. Corporal punishment must be administered in the principal's office; prior approval of the principal is necessary; an adult witness must be present; the witness and the child must be told of the reasons for the corporal punishment; excessive force cannot be used; and, a written report of the incident must be filed with the principal and sent to the child's parents. (P- 2, P-5) Respondent concedes the propriety of these rules and that corporal punishment may not be administered without first complying with them. (Prehearing Stipulation, pp. 6-7) III. During the 1980-1981 School Years, Respondent Administered Corporal Punishment in Violation of the Rules of the School Board and in Defiance of the Orders of Her Principal In early 1981, Lawrence H. Nickler, then principal of Neal Armstrong Elementary School, received complaints from parents that respondent physically punished her students. Mr. Mickler reacted by issuing her a written order. The order, dated February 13, 1981, instructed her to put aside all references to corporal measures; any gesture which might be misconstrued as of a corporal nature; or the use of any devices in such a manner which might be considered as dealing corporal punishment. This includes or could include a ruler, paddle, bolo paddle, etc. (P-7) He specifically warned her that the continuing concern of parents could threaten her career, that her reputation and professional future were in jeopardy. (Testimony of Mickler, P-7) Nonetheless, on or about May 5, 1981, respondent administered corporal punishment to Michelle White, a student, by striking her on the head--a blow which broke the blue plastic headband she was wearing and bruised the child's scalp. Respondent administered this blow to Michelle in the classroom in the presence of other and without first taking her to the principal for corporal punishment, without first securing the presence of an adult witness, and without advising the witness of the reason for the punishment. She also failed to complete the report which must be filed with the principal and sent to the child's parents. (Testimony of respondent, White, P-8) Faced with this violation of his orders, principal Mickler called respondent to his office on May 6, 1981, and discussed the incident with her, informed her that her action violated his previous order, and specifically warned that any further violations would result in disciplinary action. (Testimony of Mickler, P-9) IV. During the 1981-1982 School Year, Respondent Administered Corporal Punishment in Violation of Rules of the School Board and Orders of Her Principal During the 1981-1982 school year, Robert Hrstka became principal of Neal Armstrong Elementary School. On the first day of school, he met with his teachers (including respondent) and reviewed the school handbook, including procedures for handling disciplinary problems. He specifically informed them that they could use corporal punishment only if they followed the rules; that any teacher who intended to use corporal punishment should report to him for a demonstration of the proper technique for administering it. Respondent, however, did not report to him for the demonstration. (Testimony of Hrstka, Prehearing Stipulation, p. 5) Respondent did, however, come to Mr. Hrstka's office the next day and explain to him how she used her "Bolo" paddle. He responded that her use of the paddle constituted corporal punishment, instructed her that she was to discontinue using it, and reminded her that if she wanted to administer corporal punishment she would have to follow the rules. (Testimony of Hrstka, Prehearing Stipulation, pp. 6-7) Nonetheless, during the ensuing school year, respondent administered corporal punishment to five students, on six separate occasions, in violation of the School Board's rules and her principal's orders. Emily Robarge. In October, 1981, respondent administered corporal punishment to Emily Robarge, a kindergarten student, by slapping her on the hands, causing her to cry. This was done in the classroom in the presence of other students, without securing an adult witness, without first taking the student to the principal's office, without first advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Respondent's Response to Requests for Admissions, para. 15) Rebecca Hoop. During February, 1982, Rebecca Hoop, a fourth grade student, was making noise by clicking the handle on the front door of the school. Respondent opened the door, pushed her back, and pinched her on the arm, breaking the skin and causing a black-and-blue bruise. This constituted corporal punishment and was administered without taking the student to the principal's office, without first securing an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Jones, respondent, Hrstka) Brian Chelarducci. During March or April, 1982, respondent took Brian Ghelarducci, a student, into the restroom within her classroom and administered corporal punishment by striking him on the hands three or four times, using a ruler or other wooden object. 3/ This occurred in the presence of the other students and without respondent first securing an adult witness, without advising the witness of the reason for the corporal punishment, without taking the student to the principal's office, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Smoak, Hrstka) Emily Robarge. During the spring of 1982, Respondent again administered corporal punishment to Emily Robarge, a kindergarten student. Emily was late returning from recess and respondent met her outside the classroom door in the hallway. The door was closed. Respondent held the girl by one arm and spanked her fairly hard on the buttocks four or five times, causing the student to cry. (This was more than a series of taps or a nudging to encourage Emily to move more quickly.) This constituted corporal punishment and was administered without respondent first taking Emily to the principal's office, without securing the presence of an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Collard) Jeff Elliot. In January, 1982, respondent administered corporal punishment to Jeff Elliot, a kindergarten student, by striking him on the hands. In the presence of other students, respondent took him behind a classroom bookcase, told him to hold out his hands, and asked if he was going to slap them or would she have to do it. Several slapping sounds ensued, followed by the boy's cries. 4/ This occurred without respondent first taking Jeff to the principal'S office, without securing an adult witness, without advising the witness of the reason for the corporal punishment, and without filing the report form required by the School Board. (Testimony of Barker) Robert Myers. During 1982, respondent administered corporal punishment to Robert Myers, a kindergarten student, by striking him on the buttocks with a yardstick while he leaned across a desk. She struck him three or four times, the blows were hard enough to hurt, and the boy cried. (She admits that she "swatted him on the backside." Tr.-186) Respondent took this action in the presence of other students, without first taking Robert to the principal's office, without first securing the presence of an adult witness, without first advising the witness of the reason for the punishment, and without completing and filing the report form required by the School Board. (Testimony of Barker) V. Respondent's Violation of Rules and Orders Governing Administration of Corporal punishment Was Intentional Respondent's repeated violations of rules and orders governing corporal punishment support an inference that the violations constituted willful and intentional disobedience of lawful authority. When Mr. Hrstka became principal, Endress Barker--a teacher's aide and friend who worked closely with respondent--asked her not to do anything to jeopardize her (respondent's) job--not to spank children without following the procedures and filing the necessary reports. Respondent replied, "Well, we'll see." (Tr.-154) When this statement is considered together with her admission that she was aware of the corporal punishment procedures--procedures which were clear and definite, and which she repeatedly violated--the willful, even defiant, nature of her violations is convincingly established. The evidence supports a conclusion that she made a conscious decision to continue disciplining children in her own way, notwithstanding the contrary rules of the School Board and the orders of her principal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board sustain charges that respondent engaged in gross insubordination, violative of Section 231.36(6), but allow reinstatement on a probationary basis, conditioned upon her acknowledging her duty to comply with the lawful orders of her principal and the rules of the Board. DONE AND RECOMMENDED this 15th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1983.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Joe Raymond Johnson was employed as a plant operator (janitor), at St. Petersburg High School. His employment was subject to labor conditions outlined in an agreement between the School Board of Pinellas County and the International Brotherhood of Firemen and Oilers, AFL-CIO, Local 1221. He has worked at the school since December, 1980. Respondent's immediate supervisor was Dennis N. Nelson, the night foreman who supervises the night crew of 10 plant operators (janitors). The night crew duty hours were from 2:30 - 11:00 p.m., Monday through Friday. At all times material hereto, Respondent was assigned to the night crew. The plant operators, of whom Respondent is one, are advised at periodic meetings of their duty hours, reporting times, break times, and lunch times, and other facets of their employment. In addition, this same information is posted on the bulletin board in the maintenance office. As a part of their employment orientation, the plant operators, including Respondent, were told how to make arrangements for excused absences and tardiness. They were advised to call in, in advance, and advise Mr. Jones, the Head Plant operator, that they would be late or absent and why. If Mr. Jones is not available, the worker is to leave a message for him with either a secretary in the administrative office or a student working in that office, who is to place the message in Mr. Jones' box for subsequent pick-up. Respondent was personally advised of this procedure by Mr. Nelson, his immediate supervisor. On July 5, 1987, Respondent signed a Stipulation of Agreement with the School Board whereby he was suspended without pay for three days because of a continuing history of unexcused tardiness up to that time. The Stipulation was signed by School Board officials on August 11 and August 26, 1987. On August 27, 1987, the Director of Personnel Services, Pinellas County Schools, advised Respondent by letter that the suspension had been approved and cautioning him that future infractions might lead to further disciplinary action, to include dismissal. Subsequent to July 13, 1987, even after signing the Stipulation relating to his prior tardiness, and accepting punishment therefor, Respondent continued to be tardy without excuse or prior notice as called for in the school procedure. Specifically, he was late as follows: July 13, 1987 - 3 minutes late August 13, 1987 - 8 minutes late August 17, 1987 - 2 minutes late August 26, 1987 - 5 minutes late September 24, 1987 - 42 minutes late September 30, 1987 - 1 minute late October 10, 1987 - 4 minutes October 16, 1987 - 32 minutes late November 4, 1987 - 1 minute late November 11, 1987 - 13 minutes late December 3, 1987 - 4 minutes late from lunch December 8, 1987 - 13 minutes late from lunch February 21, 1988 - 21 minutes late As a result of this continuing tardiness, on October 19, 1987, Respondent was called to a conference with the Principal, Mr. Grey, who advised him of the continuing problem. Respondent professed to be unaware of the problem and claimed discrimination by his supervisors. Nonetheless, Mr. Grey advised Respondent to be punctual in the future upon pain of further disciplinary action. When asked to sign a copy of the memorandum memorializing this conference, Respondent refused to do so. On December 16, 1987, Mr. Jones, the Head Plant operator, wrote to Mr. Johnson outlining a series of unexcused tardies and absences in early December, 1987 and indicating he was referring the matter to the Principal for action. Respondent, again, refused to acknowledge this communication. On January 21, 1988, Mr. Jones again wrote to Respondent noting a thirteen minute tardiness that day and again referring the matter to the Principal. As was the case with previous communications, Respondent refused to sign in acknowledgement. According to Mr. Nelson, Respondent failed to call in on any one of the above-mentioned tardiness in advance as was required. He admits that Respondent is generally a good worker but was the subject of some other, unidentified disciplinary problems during the period of his employment. These not being further identified or supported, they are hereby disregarded. Mr. Grey, the Principal, personally spoke with Respondent about his lateness on several occasions. Initially Respondent offered no explanation for his tardiness but with regard to the last two incidents, indicated he had physical problems. Respondent also, on one occasion, indicated to Mr. Grey that the plant operator, Mr. Jones, was prejudiced against him. Mr. Grey did not believe Respondent's representations to him that he had tried to call in to say he would be late. After the last referral from Mr. Jones, Mr. Grey decided that more stringent disciplinary action was appropriate and recommended to the Superintendent of Schools that Respondent be dismissed. This recommendation was based upon his own interviews with the Respondent and the reports of Respondent's supervisors. While admittedly other janitorial personnel have been tardy without a recommendation for dismissal, their records are not as aggravated as that of Respondent who continued his tardiness regardless of repeated counselings and warnings. Even though Respondent has not been late since February, 1988, Mr. Grey still feels he should be dismissed because regardless of the counselings, Respondent was repeatedly tardy until this present dismissal action was initiated. Mr. Johnson, who is fifty-one years old, has worked for the School Board continuously since December, 1980, and this job is his sole source of income. He admits that there was justification for the three day suspension imposed on him previously but contends that as to the latter incidents being used to support the current action, he called in in advance on most - at least those of significance. He does not consider one or two minutes beyond the starting time as being late, however. That much time could be expended waiting in line to clock in. As to these short periods, he asserts he was there on time but had to wait to sign in and by the time it was his turn, he was late by one or two minutes. What Respondent overlooks, however, is that the sign in clock was purposely set between two and three minutes slow for just that purpose. Consequently, if the clock showed Respondent to be two minutes late, he was, in reality, between four and five minutes late - well beyond the delay time. Respondent also contends without any evidence to support his contention, that the clock was ordinarily inaccurate and was adjusted purposely to entrap employees. Evidence introduced by Petitioner, however, indicates the clock was periodically checked and found to be accurate, except in times of power outages not pertinent here, until it was replaced when it broke down for a week. During that period, however, Respondent was not late. As stated above, Respondent claims that he did call in when he would be significantly late and leave a message with the student who answered. To support his claim, he asserts that neither Nelson nor Jones ever complained to him on those occasions. When he would see them after arrival, they would acknowledge his presence and say they were glad he had made it. On one of these occasions, September 30, 1987, on which date he was forty-two minutes late, he had car trouble and told Mr. Jones about it, when he arrived. During this same period from July, 1987 to January, 1988, he was having physical problems and was under a doctor's care; a fact which he made known to both Jones and Nelson. At one point, he brought in a doctor's certificate which he discussed with the Assistant Principal who told him to leave it in the Principal's box. The Principal denied receiving it, however. These assertions do not, however, establish that Respondent followed the school rules and called in in advance when he was going to be late. Respondent claims that though the school administration is claiming his tardiness as the basis for this dismissal action, in reality it is because of an altercation he had with Mr. Jones over a period of sick leave. In the incident in reference, Respondent had been to the doctor and upon his return to school, signed an application for sick leave furnished to him by Mr. Jones who had indicated it would be approved. When he saw it later, he noted that sick leave had been disapproved. When he spoke with Mr. Jones about this, Jones allegedly told him he didn't have any sick leave accrued. Respondent called the district payroll office and reportedly was told he did have sick leave available, but when Respondent reported this to Jones, Jones supposedly said it didn't matter, he wasn't going to get it. When Respondent complained to the Assistant Principal, the matter was referred back to Jones for resolution. Respondent was counseled about this incident in writing by the Principal and believes it is the real basis for the disciplinary action. Both Grey and Jones deny this, however, and in light of the Respondent's repeated lateness, it is found that the basis for this action is the lateness and not the other matter. Mr. Grey admits that Respondent's tardiness was documented with a view toward disciplinary action but not because of this incident. The documentation was begun before the incident in question and relates solely to the continuing tardiness. Respondent has not been late since January 21, 1988, because he fears the separation action. He made up his mind to be on time and he has been on time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Joe Raymond Johnson be suspended without pay from employment with the School Board of Pinellas County for thirty days. RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 7th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1370 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner NONE By the Respondent 1 - 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 8 - 10. Accepted and incorporated herein. 11 - 14. Accepted and incorporated herein. Rejected as not entirely supported by of record. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. 19. Accepted. 20 - 21. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Clearwater, Florida 34624 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue Suite C Clearwater, Florida 34616 Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue Whether the Respondent, Fitzroy Salesman, should be terminated from his employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is charged with the duty to operate, control, and supervise all public schools within the Miami- Dade County School District. As such, the employment of school personnel is encompassed among its myriad of duties. Further, the School Board is charged with the discipline of its employees. The Petitioner employed the Respondent on or about August 28, 1988. The Respondent was employed pursuant to a professional service contract. The Respondent was continuously employed as a full-time teacher assigned to Miami Lakes Educational Center (the Center). Throughout most of his employment, the Respondent's primary job assignment was related to his area of expertise: welding. Prior to the instant case, the Respondent has never been the subject of a disciplinary proceeding. Due to a decrease in enrollment for welding classes (such that a full-time welding position was not required), the Respondent was assigned responsibilities as a substitute teacher for other programs at the Center. Specific to the allegations of this case, the Respondent, on September 24, 25, 26, 27, 28, 29, and October 1, 2, 3, and 4, 2001, was assigned to serve as a substitute teacher in the Television Production Program at the Center. While being supervised by the Respondent, at least ten students participated in the production of a program depicting inappropriate activities. For example, the students were recorded using profanity, mimicking sex acts, and discussing "getting high." The students talked openly and without interruption or direction from the Respondent. During part of the tape, the Respondent stood within the glassed production area next to the studio set. Occupants of that room are able to see and hear the activities on the set. The Respondent knew or should have known what the students were doing as he was responsible for the class. Further, at one point, the Respondent appeared on camera and stated, "ain't that some shit." The Respondent was given an inadequate lesson plan for the days he substituted in the Television Production Program but did not seek assistance from administrators or the department head. Such assistance is readily available to any substitute teacher who advises he is in need of additional materials or plans. Further, the Respondent did not report the activities of the students. Specifically, he did not refer students to the office based upon their inappropriate activities. The Respondent does not deny that the students engaged in the activities described. He maintains that he was inadequately trained or prepared to lead the class. On or about October 19, 2001, an administrator at the Center discovered the tapes depicting inappropriate conduct. At that time the Respondent was reassigned to another location. Based upon the Respondent's failure to properly monitor the class, his effectiveness as a teacher has been impaired. On January 13, 2002, a conference-for-the record (CFR) was conducted with the Respondent. At the CFR, the Respondent was advised of concerns regarding the described conduct during the time he served as substitute teacher for the Television Production Program. On January 15, 2002, ten students from the television production class were suspended from school. The suspensions stemmed from their activities depicted in the videos described above. On March 19, 2002, the Respondent attended a meeting with the School Board's Office of Professional Standards. At that time the Respondent was advised that the School District would seek dismissal proceedings. On April 17, 2002, the School Board took action to initiate dismissal proceedings against the Respondent based upon the activities that had occurred in the Television Production Program during the Respondent's time as substitute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board affirm the suspension of the Respondent and dismiss him from employment with the School District. DONE AND ENTERED this 31st day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 March, 2003. COPIES FURNISHED: Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact Respondent is Clarence Davis, holder of teaching certificate number 137897 issued by the State of Florida. Respondent is currently employed by Petitioner as a teacher pursuant to a continuing contract which has been in effect since April 21, 1971. Respondent is presently a teacher at Azalea Middle School. In September of 1988 or early October 1988, a 12 year old female student, J.B., in Respondent's gym class complained to Respondent that another student was hitting her. Respondent refused to take any action. From his view of the class seating arrangement on the gym bleachers, Respondent felt there was no way that the student accused could have hit the complainant. Respondent told J.B. to stop crying like a baby. Respondent had been previously requested to use extra sensitivity in dealing with J.B. because she was a recent victim of a violent sex crime. J.B., through her parents, subsequently requested and received a transfer from Respondent's class by the school principal. At the beginning of the 1988-89 school term, D.W. was a student in Respondent's gym class. D.W. testified that Respondent yelled at him in a rude manner and propelled him into a fence on an out door court yard who he hit a volley ball incorrectly. D.W.'s testimony in this regard is not credited because his version of events was not corroborated by other testimony and is in conflict with testimony of Respondent that the incident did not occur and that D.W.'s class did not participate in any out door volley ball activity. D.W. admitted he "mouthed off" to Respondent on several occasions. When Respondent would give D.W. a directive, D.W.'s response was "no". Such an admission is inconsistent with D.W.'s testimony that he was afraid of Respondent; therefore that portion of D.W.'s testimony also is not credited. The principal of the school transferred D.W. from Respondent's class at the request of D.W.'s parents and because D.W. did not have respect for Respondent. Due to his absence on the day that volley ball teams were chosen, V.C. was not assigned to a team when he returned to Respondent's gym class on or about October 19, 1988. V.C. was not supposed to be seated in the gym bleachers with other students who were excused from "dressing out." Respondent yelled at V.C. and told him to get out of the class. V.C. complied and went to the school administrator's office. V.C. was not given a pass or a referral by Respondent in accordance with school policy requirements. V.C. was frightened by Respondent's action. A subsequent parental request to transfer V.C. from Respondent's class was granted by the school principal. On October 20, 1988, Respondent went to the classroom of a fellow teacher, Ms. Moore, and gestured through the glass portion of the door for her to come out and speak with him. She started her class to work on an assignment and stepped out the door to speak with Respondent. The conversation lasted four to five minutes and dealt primarily with Respondent's concern that he was being harassed by school administrative officials. Petitioner's policy no. 6Gx52-2.08 directs that class interruptions must be made at such times as will not interrupt classroom instruction. Just prior to the conversation with Ms. Moore, Respondent had spoken with the school principal in the principal's office. At the meeting with the principal, the principal deliberately left his door ajar for Respondent, not wanting to have a closed door meeting with Respondent. Respondent came into the principal's office and shut the door. Respondent was told by the principal that D.W. would be transferred to another class. Respondent argued with the principal, shook his finger in the principal's face and said "I won't be treated like a child." When the principal reached for the door handle, Respondent held the door shut and continued speaking in a voice loud enough for administrative personnel seated at desks approximately 15 feet outside the door to become concerned. The principal did not ask Respondent to open the door or to remove his hand from the door. Respondent then left the office, walked a short distance toward the exit to the administrative office section, and came back to the door of the principal's office where he again shouted that he wasn't being treated fairly, or words of similar import. Respondent then left the area. Another 13 year old male student, P.L., was transferred from Respondent's class at the request of his mother after the first grading period of the 1988-89 school year. P.L. received an "F" from Respondent for the first grading period because P.L. refused to dress out for physical education class. P.L. also witnessed Respondent yell and scream at other students. P.L. did not recall specific incidents and his testimony cannot be credited as corroborative of any particular incident alleged against Respondent. On or about October 28, 1988, Respondent grabbed D.B., a 14 year old seventh grade student, who was in the process of fighting with another student. As established by Respondent's testimony, D.B. is a "street smart" kid adept at fighting who poses a danger to other students in such a situation. As a result, Respondent held D.B.'s arm and carried him back to his office from the floor of the gym. D.B. is still in Respondent's class. Testimony of D.B. that Respondent intentionally twisted D.B.'s arm is not credited due to the demeanor of the witness while testifying; the lack of corroborative testimony of Respondent's arm twisting conduct by other witnesses; the testimony of another student, L.H., that he observed the incident and did not see D.B.'s arm twisted; and Respondent's denial of such action. On or about September 5, 1986, the principal of the school where Respondent was then employed, counselled Respondent concerning his aggressive touching of students. Respondent was reprimanded in a memorandum from the principal of Azalea Middle School dated April 18, 1989, for unprofessional conduct. The Superintendent of Schools for Pinellas County reprimanded Respondent by letter dated June 1, 1988, for failure to meet professional standards relating to personal conduct. Respondent was warned that failure to follow administrative directives and treat colleagues and staff in an appropriate and acceptable manner in the future would result in a recommendation to Petitioner that Respondent be disciplined through suspension or termination of employment. The Director of Personnel Services for Petitioner was presented at final hearing as an expert in education practices and administration. Based upon his review of Respondent's previous disciplinary record, he opined that disciplinary action was appropriate. While he had met with Respondent to advise him of the disciplinary matters pending against Respondent, the director admitted that he did not discuss with Respondent the alleged incidents involving students J.B., V.C., D.W., and P.L.; therefore he did not have the benefit of information from Respondent in formulating an opinion regarding the appropriateness of the discipline proposed in this case. The school principal never consulted Respondent with regard to learning Respondent's version of the incidents involving students J.B. or D.W. The principal heard Respondent's version during the October 20, 1988, meeting with Respondent in the principal's office. Notably, the principal did meet with D.W., his parents and another instructor in a different class to resolve behavioral problems in that class. As stipulated by the parties, Petitioner bases Respondent's suspension for three days without pay upon Respondent's alleged actions with regard to students J.B., D.W., and V.C.; his confrontation with the school principal on October 20, 1988; his discussion of the matter with fellow teacher, Ms. Moore, on October 20, 1988; and his alleged failure to comply with previous directives to correct deficiencies in his professional behavior as set forth in previous reprimands. Petitioner's second suspension of Respondent without pay for a period of five days is based upon allegations that Respondent engaged in actions after November 8, 1988, and prior to December 14, 1988, consisting of pushing and shoving students in a punitive manner; that such alleged misconduct by Respondent occurred while the previous suspension action of November 8, 1988, was still pending; and that Respondent had been previously warned in reprimands issued to him in 1986 and 1988 to refrain from such conduct. The basis of the allegation regarding Respondent's pushing and shoving of students, relied upon by Petitioner to support the second suspension, consists of the incident involving student D.B. A second incident involving student M.S., a female in the sixth grade physical education class of Respondent, occurred after the December 14, 1988 date of the charging instrument for the second suspension and is not credited with regard to present charges.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in Division of Administrative Hearings Case No. 88-5720 and Division of Administrative Hearings Case No. 89- 0344 dismissing the proposed suspensions of Respondent from his employment. DONE AND ENTERED this 21st day of April, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-5720 AND 89-0344 Rulings on Petitioner's Proposed Findings of Fact: Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 1. Accepted. Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted in material part in Finding of Fact, paragraph 2. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact, paragraph 4. Accepted. Finding of Fact, paragraph 3. Accepted in material part in Finding of Fact paragraph 5. Rejected as contrary to the weight of the evidence. However, as to material findings see paragraphs 5, 6, and 7. Accepted. Finding of Fact, paragraph 5. Accepted in material part in Finding of Fact, paragraph 6. Accepted in material part in Finding of Fact, paragraph 6. Paragraphs 15, 16, 17, and 18 are accepted to the extent facts are addressed in Finding of Fact paragraph 6. The remaining portions are rejected as unnecessary. Paragraph 19 is accepted. Finding of Fact paragraph 6. Paragraph 20 is accepted in material part and addressed in Finding of Fact paragraph 8. Paragraph 21 accepted but unnecessary. By her admission, Respondent used $2000 borrowed from Washington toward her purchase of the car. Paragraph 22 is accepted. Finding of Fact paragraph 12. Rulings on Respondent's Proposed Findings of Fact: Accepted. Finding of Fact paragraph 2. Accepted in part Finding of Fact paragraph 3. Rejected as to suggestion, Respondent did not know. See subsequent findings of fact paragraph 5. Accepted. Finding of Fact paragraph 5. Accepted in material part in Finding of Fact paragraph Rejected as to conclusion Respondent was not aware of the conversations between Butler and Washington which took place in Respondent's presence. Accepted only as addressed in Finding of Fact paragraph 9 otherwise rejected as contrary to the weight of the evidence. Accepted but unnecessary since true origin of funds was known to Respondent. Accepted as it states Respondent accepted loan-see findings of fact paragraphs 6 and 7. Rejected otherwise as contrary to weight of credible evidence. Accepted but is unnecessary. See Findings of Fact paragraph 10 as to material findings. Accepted in material part in Findings of Fact paragraphs 11, 12; otherwise rejected as contrary to weight of credible evidence. Accepted in material part in Finding of Fact paragraph 13. Rejected as contrary to weight of credible evidence. Rejected as argumentative. Rejected as argumentative. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 1960 East Druid Road Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue Southwest Largo, Florida 34640
Findings Of Fact The Petitioner herein, Joann I. Lewis, began working for the Respondent, Tampa General Healthcare and Health Park as a unit coordinator at its Genesis project located at 5802 N. 32nd Street in Tampa in December, 1979. Her duties were to perform general clerical work, to answer the phone, to prepare and copy medical records and reports, and other tasks of a similar nature. Her immediate supervisor was Sharon Steinmetz, who was her team leader. On November 30, 1992, Ms. Steinmetz prepared a memorandum which was forwarded to Ms. Lewis outlining Lewis' unsatisfactory behavior. Specifically in issue was the question of her tardiness, and at subparagraph 5 of the listed reasons, Ms. Steinmetz indicated that from September 24, 1992 through October 19, 1992, Petitioner was tardy 16 times. Ms. Lewis refused to acknowledge receipt of this memorandum. On January 20, 1993, a staff meeting was held at the Genesis office, called by Teresa O'Connor, the program director, for Ms. Steinmetz and all members of the staff. Staff meetings were considered mandatory. The purpose of this meeting was to discuss the company's new tardiness policy which went into effect the first of the year. A copy of the new policy was given to all attendees at this meeting. Petitioner's signature appears on the list of attendees, but she claims she was not given her copy at that time. She claims she received it somewhat later, but no reason was shown as to why she did not get hers when all other employees received theirs. The new policy clearly states that when an employee accumulates 13 incidents within a 365 day period from the inception of the policy, progressive disciplinary action would be taken. All employees participated in the program, including the Petitioner, and though she claims not, her slate regarding tardiness was wiped clean effective January, 1993, as was that of all other employees. However, because Ms. Lewis had been placed in an employee enhancement program as a result of the memorandum and letter given her on November 20, 1992, she was not relieved of the strictures required by that program, with the exception that, as was stated above, her list of tardies and absences was wiped clean prior to January 1, 1993. In May, 1993, Ms. Steinmetz met with the Petitioner about her attendance and at that time again gave her a copy of the tardiness policy and a listing which showed that Petitioner had been tardy six times since January 1, 1993. On July 26, 1993, Ms. Steinmentz again met with Petitioner, this time in Ms. Steinmetz' office and at that time noted that Petitioner had been tardy twelve times since February 1, 1993. This was a written verbal warning, which is the initial disciplinary action under the new tardy policy. The corrective action required was that Petitioner cease further tardiness. Petitioner refused to sign this warning memorandum which had been discussed with Ms. O'Connor prior to its being presented to Petitioner. On August 26, 1993, Ms. Steinmetz again called Petitioner to her office and presented her with a list of nine tardies and two unscheduled absences which occurred during the period between January 1, and August 20, 1993. One tardiness was for one minute; two were for two minutes; one was for fifteen minutes; one for twenty-four minutes,; one for twenty-eight minutes; one for thirty minutes; one for one hour; and one for three hours and thirty minutes. On this same date, Ms. Steinmetz gave Petitioner a written warning, which had previously been approved by Ms. O'Connor, and which Respondent refused to sign. In this written warning, Petitioner was notified that upon the next occurrence of tardiness, she would be given a three day suspension without pay. Thereafter, Ms. Steinmetz met with Ms. O'Connor to see if there was any way they could help Petitioner with her tardiness. When Steinmetz subsequently spoke with Petitioner, Petitioner indicated there was nothing they could do. Petitioner was again tardy in September 1993 and on September 22, 1993, she was given a three day suspension without pay. At that time both Ms. Steinmetz and Ms. O'Connor discussed the reasons for the suspension with the Petitioner and Petitioner agreed and signed the notice of suspension. The dates of the suspension were chosen to accommodate the Petitioner's needs. Apparently her son, who was away at college, had been shot, and she needed to go see him. Therefore, the days of the suspension were imposed consistent with her need to make this trip. Nonetheless, the first day back to work, after the suspension, Petitioner was again tardy. As a result, on October 19, 1993, Ms. Steinmetz and Ms. O'Connor met with the Petitioner, advised her of the fact that she was to be terminated and the reasons therefor. Petitioner refused to sign or take with her a copy of the termination notice, and it was thereafter mailed to her that same day. Petitioner requested a pre-disciplinary hearing on the issue of her termination and claims she was to be advised by the Respondent as to when the hearing would be held. She also claims that she was not advised prior to the hearing and received notice thereof two days after it was held. When Petitioner called Respondent's office about that, she was told she would be notified as to what could be done, but she claims she never heard from Respondent again. Ms. Steinmetz' comments regarding Petitioner's record of tardies and absences is confirmed by the testimony of Ms. O'Connor. The Respondent's policy on tardiness is that any period of lateness is considered a tardy, and at the thirteenth incident of tardiness, progressive discipline will be initiated. Ms. O'Connor claims to have discussed all discipline taken against Petitioner with Ms. Steinmetz before it was imposed, but she did not necessarily sign all actions that were taken. For example, she did not sign any of the records of counseling, but any written disciplinary action which was imposed on Petitioner was signed by her. Both the verbal and written warning were approved by Ms. O'Connor and both, she insists, are consistent with the company's tardiness policy. Ms. O'Connor claims, as does Ms. Steinmetz, that both tried to consider various ways to help Petitioner with ways to overcome her tendency toward tardiness. They suggested some changes to Petitioner who rejected them. These included different work hours or a different work load, but as Petitioner claimed at hearing, these were not "feasible" alternatives. Ms. O'Connor made the decision to terminate Petitioner's employment with the Respondent, and she discussed this with Ms. Steinmetz before the action was taken. This dismissal action was based solely on the Petitioner's continuing series of excessive tardiness, and in no way was based on her race. In that regard, Petitioner, while claiming her dismissal was based on race, admits that many other individuals who had extended periods of tardiness were not discharged and that most of those individuals were black, as is she. In fact, the majority of the employees at the Genesis project are black, but she sees no way that her dismissal could have been based on anything other than her race notwithstanding the fact that she was ten minutes late for the hearing she requested in this instance. Petitioner also notes that subsequent to her dismissal, she filed for unemployment compensation which was denied because, according to the examiner, she was discharged for tardiness and not at the fault of the employer. She also filed the initial equal opportunity complaint with the Commission on Human Relations which was denied. She claims in that regard, however, that the Commission did not contact any of the five witnesses she listed on her complaint form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petition for relief filed in this matter by Joann I. Lewis against the Hillsborough County Hospital Authority be dismissed. RECOMMENDED this 9th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1995. COPIES FURNISHED: Joann I. Lewis 6702 North 33rd Street Tampa, Florida 33610-1518 Sandra L. Fanning, Esquire E. John Dinkel, III, Esquire MacFarlane Ausley Ferguson & McMullen 2300 First Florida Tower 111 Madison Street P.O. Box 1531 (Zip 33601) Tampa, Florida 33602 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, Florida 32303-4149
