The Issue Whether just cause exists for Petitioner to suspend Respondent from his teaching position, without pay, for 15 days, and to terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a teacher since 2005. His last teaching assignment was as an eighth grade history teacher at Howell L. Watkins Middle School ("Watkins"), where he taught for approximately 12 years. Administrative Complaint Charges The Administrative Complaint alleges that on or about January 19, 2017, Respondent engaged in the following conduct with respect to a student, K.B.: "10. . . . a. [p]ush[ing] her into the dry board; b. [g]rabbing the student victim’s backpack causing her to fall; c. [p]ulling the victim’s arms and dragging her by one arm and one leg; and d. [d]ragging the student victim by the ankle and wrist." As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating the following statutes, rules, and School Board policies: sections 1008.24(1)(c), (1)(f), and (1)(g), 1012.22(1)(f), and 1012.27(5), Florida Statutes; Florida Administrative Code Rules 6A-5.056(2) and 6A-10.081(2)(a)(1), (2)(a)(5), and (2)(c)(1); and School Board Policies 0.01(2)(3) and (2)(4); 3.02(4)(a), (4)(d), and (4)(f); 3.02(5)(a)(ii), (5)(a)(viii), (5)(c)(vii) and (5)(i); 1.013(1); 1.1013; and 3.27; and article II, section M of the County Teachers' Association Collective Bargaining Agreement ("CBA"). The Administrative Complaint does not charge Respondent with having committed gross insubordination in violation of rule 6A-5.056(4). Evidence Adduced at Hearing The incident giving rise to this proceeding occurred on January 19, 2017, at Watkins, in Respondent's classroom and in the hallway immediately outside of Respondent's classroom. On that day, K.B., a student in Respondent's class, put her head down on her desk and refused to participate in the class's activities, despite being told repeatedly by Respondent to lift her head off of her desk and to participate in class activities. Frustrated with K.B.'s refusal to obey his repeated directives to lift her head off of her desk and participate in the class, Respondent ordered K.B. to get out of his classroom. The evidence does not clearly and convincingly establish whether, or what type, of physical interaction between Respondent and K.B. may have occurred as she was leaving, but was still inside the classroom.2/ The undisputed evidence establishes that as K.B. was walking toward the door to leave the classroom, she intentionally knocked a book off of a desk, causing it to fall to the floor. Respondent ordered K.B. to pick up the book, but she did not do so and exited the classroom. The evidence clearly and convincingly establishes that as K.B. opened the door and attempted to exit the classroom, Respondent detained her by grabbing her backpack. K.B. pushed forward in an attempt to resist being detained by Respondent, and as a result, fell to the floor in the hallway immediately adjacent to the open classroom door.3/ The evidence clearly and convincingly establishes that Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and dragged her back into the classroom.4/ Once K.B. and Respondent were back inside the classroom, Respondent ordered K.B. to pick up the book that she had pushed to the floor and to place it back on the desk. She complied, but then again intentionally pushed the book off of the desk onto the floor and again exited the classroom. The evidence clearly and convincingly establishes that as K.B. ran out of the open classroom door, Respondent again grabbed K.B. by her backpack. K.B. pushed forward to resist being physically detained by Respondent, and, as a result, again fell to the floor of the hallway. Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and again dragged her back into the classroom.5/ As K.B. and Respondent exited the classroom the second time, teacher Angela Hammond, whose classroom was immediately next door to Respondent's and who said she heard a "commotion," came out of her classroom into the hall. Hammond observed Respondent dragging K.B., who was lying on the floor, back into his classroom. Hammond entered Respondent's classroom and observed K.B. pick up a book that was on the floor, place it on a desk, and then slide it off of the desk onto the floor. At that point, Hammond took K.B. into her (Hammond's) classroom, and talked to K.B. in an effort to calm her down. At some point, Respondent also entered Hammond's classroom to talk to K.B. in an effort to determine if she was alright and to calm her down. The clear and convincing evidence, consisting of K.B.'s own testimony, establishes that she was not physically injured as a result of any aspect of the incident, including having been pulled by her ankle and wrist by Respondent. K.B. testified that she was extremely angry with Respondent as a result of the incident. The evidence establishes that before the incident, Respondent and K.B. enjoyed a mentor-mentee relationship. K.B. would talk to Respondent about her personal and school- related problems. Respondent would advise K.B. regarding engaging in more appropriate behavior at school, and would encourage her academic performance. K.B. testified that Respondent was one of her favorite teachers and that Respondent's class was the only one she had enjoyed in the 2016-2017 school year. To that point, K.B. wrote a letter to Respondent, telling him that she enjoyed his class, that he was a good teacher, and that she appreciated his help and encouragement. When asked whether the January 19, 2017, incident had changed her opinion of Respondent, she testified: "[n]ot really, because we both were in the wrong." Donald Hoffman, the principal at Watkins during the 2016-2017 school year, testified that the proper means for dealing with students who present behavioral problems during class is to use the in-classroom buzzer, which is mounted on the classroom wall, to call for assistance from school administration staff. Hoffman testified that all teachers at Watkins are apprised of this protocol. Respondent acknowledged that he was aware of this protocol, but that he did not use the buzzer to call for assistance in dealing with K.B.'s defiant behavior in the classroom or as she left the classroom. He acknowledged that he could have handled the situation in a more appropriate manner than he did in physically detaining K.B. Respondent testified, credibly, that he physically detained K.B. to prevent her from getting into trouble with the school's administration, and possibly being returned to the alternative school from which she had transferred, for having left his classroom during the class period. The Watkins Faculty & Staff Handbook ("Faculty Handbook") for fiscal year 2017 ("FY '17"), pages 33 and 34, contains a policy, regarding student detention. This policy states, in pertinent part: "The Principal, Assistant Principal, teacher, media specialist, or others engaged in administrative or instructional capacity in public schools, shall be authorized to temporarily detain and question a student under circumstances which reasonably indicate that such a student has committed, is committing, or is about to commit a violation of law." There is no persuasive evidence establishing that K.B. had committed, was committing, or was about to commit a crime. Therefore, the policy on pages 33 and 34 of the Faculty Handbook does not authorize Respondent's physical detention of K.B. Hoffman testified that the administration at Watkins does "not promote physical contact with students in any negative manner," and that, generally, only the administration is permitted to detain students at Watkins. Respondent previously has been disciplined by Petitioner.6/ One prior disciplinary action——consisting of a written reprimand issued on May 23, 2013, in which Respondent was reprimanded for engaging in "horseplay" with a student——is germane to this proceeding because it is an action that falls within the Progressive Discipline process established in the CBA, section 7.7/ Findings of Ultimate Fact The Administrative Complaint charges Respondent with having violated various statutes, State Board of Education rules, and School Board policies. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). 31. Here, Petitioner has charged Respondent with violating rule 6A-5.056(2), which states: 6A-5.056 Criteria for Suspension and Dismissal. "Just cause" means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335, F.S. In fulfillment of these laws, the basis for each such charge is hereby defined: * * * "Misconduct in Office" means one or more of the following: A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.; A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.; A violation of the adopted school board rules; Behavior that disrupts the student’s learning environment; or Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties. Petitioner also has charged Respondent with violating rule 6A-10.081(2), which states, in pertinent part: Florida educators shall comply with the following disciplinary principles. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: 1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety. * * * 5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. * * * (c) Obligation to the profession of education requires that the individual: 1. Shall maintain honesty in all professional dealings. Petitioner also has charged Respondent with violating various School Board policies. Specifically, Petitioner has charged Respondent with violating Policy 0.01, Commitment to the Student, Principle I, which states in pertinent part: 2. In fulfilling his obligations to the student, the educator-. . . 3. [s]hall make reasonable effort to protect the student from conditions harmful to learning or to health and safety; 4. [s]hall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement. Petitioner also has charged Respondent with violating Policy 1.013, Responsibilities of School District Personnel and Staff, which states: The district administrative staff shall be responsible for the efficient planning and administration of all supporting educational services such as maintenance, transportation, school lunch, personnel, purchasing, federal programs, payroll and other responsibilities as directed by the superintendent. The district administrative staff is also responsible for insuring that the appropriate district policies, state board of education rules, state laws, and federal laws and rules are adhered to. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules. District administrative staff. District instructional staff. The district level instructional staff shall be responsible for the cooperative development, supervision, and improvement of the district instructional program. The areas include in-service education, program evaluation, development of curriculum materials, educational specifications for school facilities, development of federal programs, accreditations, state program requirements and other responsibilities as directed by the superintendent. Pursuant to § 231.09, Fla. Stat., the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Teachers. It shall be the duty of the teacher to provide instruction, leadership, classroom management and guidance to pupils through democratic experiences that promote growth and development both as individuals and as members of society. Pursuant to § 231.09, F.S., teachers shall perform duties prescribed by school board policies relating, but not limited, to helping students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully; using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Petitioner also has charged Respondent with violating the following provisions of Policy 3.02, Code of Ethics: Accountability and Compliance Each employee agrees and pledges: To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace. * * * d. To treat all students and individuals with respect and to strive to be fair in all matters. * * * f. To take responsibility and be accountable for his or her acts or omissions. Ethical Standards a. Abuse of Students – We are committed to ensuring that employee-student relationships are positive, professional, and non- exploitive. We will not tolerate improper employee-student relationships. Each employee should always maintain a professional relationship with students, both in and outside of the classroom. Unethical conduct includes but is not limited to: * * * ii. Exposing a student to unnecessary embarrassment or disparagement. * * * viii. Engaging in misconduct which affects the health, safety, and welfare of a student(s). * * * c. Misrepresentation or Falsification – We are committed to candor in our work relationships, providing other Board employees including supervisors, senior staff and Board members with accurate, reliable and timely information. Employees should exemplify honesty and integrity in the performance of their official duties for the School District. Unethical conduct includes but is not limited to: i. Falsifying, misrepresenting, or omitting information submitted in the course of an official inquiry/investigation[.] Professional Conduct – We are committed to ensuring that our power and authority are used in an appropriate, positive manner that enhances the public interest and trust. Employees should demonstrate conduct that follows generally recognized professional standards. Unethical conduct is any conduct that impairs the ability to function professionally in his or her employment position or conduct that is detrimental to the health, welfare or discipline of students or the workplace. Unethical conduct includes, but is not limited to, the following: Failing to maintain any necessary certification or licensure required in the performance of job duties for the School District. Shall not knowingly and willfully make false statements about a colleague. Failing to report the alleged misconduct of a fellow employee, to cooperate fully during any investigation or to complete an investigation relative to allegations of misconduct of a fellow employee, which affects the health, safety or welfare of a student. Entering into a confidentiality agreement regarding terminated or dismissed instructional employees and school administrators, or personnel or administrators who are dismissed or resign in lieu of termination, based in whole or in part on misconduct that affects the health, safety or welfare of a student. Providing employment references or discussing the instructional personnel’s or school administrator’s performance with prospective employers in another educational setting, without disclosing the personnel’s or administrator’s misconduct. Petitioner also has charged Respondent with violating Policy 3.27, Suspension and Dismissal of Employees,8/ which provides: The purpose of this section is to promulgate rules regarding the suspension and dismissal of employees. These rules shall be read in conjunction with the procedures established for administrative hearings as set forth in Chapter 4, except, however, in the event it is determined that a conflict exists between these rules and those of Chapter 4, these rules will be controlling. Upon a finding of probable cause by the Superintendent sufficient to warrant a recommendation to the School Board for suspension without pay and dismissal, the Superintendent shall communicate in writing to the employee: A concise statement of the Superintendent's recommendation(s) to the School Board affecting the employee's employment status. A statement of the date, time, and place where the School Board shall meet to consider the Superintendent's actions and recommendation(s). A statement of the legal authority for the Superintendent's actions and recommendation(s). A short and plain statement of the charges made by the Superintendent against the employee. A statement of the time limit for requesting a hearing before the School Board. All employees recommended for suspension without pay and dismissal shall have the right to request a hearing provided such a request is made in writing to the School Board within 15 days of the receipt of the Superintendent's written notice. Any person who receives written notice from the Superintendent of a recommendation(s) for suspension without pay and dismissal and who fails to request a hearing within 15 days, shall have waived the right to request a hearing on such matters, and the allegations and charges as contained in the notice shall be deemed by the School Board to be true for the purpose of entering a final order on the Superintendent's recommendation(s). In the event a request for a hearing is timely made and received by the Office of General Counsel, by either an instructional employee with a continuing contract or by a noninstructional employee during the term of an annual contract, the procedure for conducting a hearing, unless otherwise determined by the School Board, is as follows: The Superintendent will file a petition for dismissal with the Division of Administrative Hearings (DOAH). This petition shall contain: The name and address of the School Board and the file or identification number, if known; The name and address of the employee, and an explanation of how the employee's substantial interest will be affected by the agency determination; A statement of when and how the employee received notice of agency decision or intent to render a decision; A statement of all disputed issues of material fact. If there are none, the petition must so indicate; A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the Superintendent to relief; A demand for relief to which the Superintendent deems himself entitled; and Other information which the Superintendent contends is material. The DOAH will assign a Hearing Officer to conduct the hearing. The employee and the employee's representative will be informed of the time and place for the hearing by the DOAH. Whenever possible, the hearing shall be held in the place most convenient to all parties as determined by the Hearing Officer. The hearing shall be conducted in accordance with Chapter 120, Florida Statutes. Within thirty (30) days after the hearing or receipt of the hearing transcript, whichever is later, the Hearing Officer shall file a recommended order to the School Board including a caption, time and place of hearing, statement of the issues, findings of fact and conclusions of law, and recommendations for final agency action. The School Board, within ninety (90) days of receipt of the Hearing Officer's recommended order, shall issue the final order. This shall be considered at a regularly scheduled School Board meeting. The School Board may adopt the Hearing Officer's recommended order as its Final Order. The School Board in its final order may reject or modify the conclusions of law in the recommended order but may not reject or modify the findings of fact unless the School Board first determines from a review of the complete record that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The School Board may reduce or increase the recommended penalty in a recommended order, but may do so only with a review of the complete record. The hearing must be conducted by the School Board within forty-five (45) days of the request for hearing. The hearing shall be conducted in accordance with Section 120.57, Florida Statutes. Following the close of a hearing before the School Board, the parties may submit proposed findings of fact, conclusions of law and recommended order, or legal briefs on the issues within a time designated by the School Board. If an employee does not specifically designate a hearing preference, the School Board shall follow procedures as listed in Section (5). If a request for a hearing is timely made and received by the Office of General Counsel by an instructional employee during the term of an annual contract or by an instructional employee with a professional service contract, either employee may elect to have a hearing before the DOAH or request that a hearing be held before the School Board. If the employee elects a hearing before the School Board, the following procedures shall apply: A majority vote of the membership of the School Board shall be required to sustain the Superintendent's recommendation. A final order shall be entered within ninety (90) days after the last date of the hearing or receipt of the hearing transcript, whichever is later. The determination of the School Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. Petitioner also cites, as a basis for its proposed discipline of Respondent, article II, section M, of the CBA, Progressive Discipline, which states: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence, which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information, which may be relied upon to take action against an employee, will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under this Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the Parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally with written notation, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the Parties. Except in cases which clearly constitute a real and immediate danger to the District, a District employee, and/or a child/children or the actions/inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand with a Written Notation - Such written notation shall not be placed in the employee's personnel file maintained at the District headquarters, but will be placed in a file at the school/department and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. The written notification shall be maintained at the school site/department pursuant to the District’s Records Retention Schedule. Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay - A suspension without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal - An employee may be dismissed (employment contract terminated) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Based on the foregoing findings of fact, it is determined, as a matter of ultimate fact, that by dragging K.B. by her wrist and ankle back into the classroom, Respondent violated rules 6A-5.056(2)(b), 6A-10.081(2)(a)1., and School Board Policy 0.01, section 3. Specifically, Respondent's actions did not constitute a reasonable effort on his part to protect K.B. from conditions potentially harmful to her health or safety. There was at least a possibility that K.B. could have been injured by being dragged across the floor by her wrist and ankle, and Respondent should have foreseen and understood that possibility. Additionally, it is determined that Respondent violated School Board Policy 3.02, section 4.d. By dragging K.B. across the floor by her ankle and wrist, Respondent did not treat K.B. with respect, as is required by that policy. Although Respondent detained K.B. in order to prevent her from getting into trouble and potentially transferred out of Watkins to an alternative school, he could have avoided having physical contact with K.B. by following the established protocol to use the classroom buzzer to summon school administration. As discussed above, Petitioner has taken one prior pertinent disciplinary action against Respondent, in the form of a written reprimand. As discussed above, section M of the CBA establishes Petitioner's progressive discipline policy. Section 7.d. of this policy states that except in cases which clearly constitute a real and immediate danger to the District, a District employee, or a child, or the actions or inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline is administered in a sequential manner, starting with a verbal reprimand with written notation; progressing to a written reprimand; then progressing to suspension without pay; and concluding with dismissal. Here, the clear and convincing evidence supports following the sequential penalty imposition established in section 7. of the progressive discipline policy. Specifically, the clear and convincing evidence supports suspending Respondent without pay, for the duration of his suspension, starting on the day on which he was suspended up to the date of entry of the final order in this proceeding. This penalty takes into account the serious nature of Respondent's conduct in dragging K.B. across the floor, but does not result in termination of a teacher who, by all accounts, is a very good teacher who cares deeply about his students, including K.B., and who puts forth extra effort to mentor to students in need of such support.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order finding just cause and suspending Respondent from his teaching position, without pay, commencing on the date on which he was suspended from his employment, and ending on the date on which a final order is entered in this proceeding. DONE AND ENTERED this 13th day of November, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 13th day of November, 2018.
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Anna M. Brewer, holds Teaching Certificate Number 475518, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of elementary education, grades 1-6. From 1968 or 1969 until 1980, Respondent worked for the School Board as a teacher aide. As a teacher aide, she had approximately twelve years to view a wide variety of teaching strategies, methods, and teaching techniques in the approximately six different schools to which she had been assigned. While employed as a teacher's aide, Respondent attended Miami-Dade Junior Community College, North Campus, and studied Initial Elementary Education. She then completed Bachelor's Training at Nova University in 1979 and thereafter became employed as a classroom teacher with the Dade County School Board at the Elementary Level beginning in the 1980-1981 school year. Respondent has been employed as an elementary teacher by Petitioner School Board since the 1980-1981 school year. During all of that period, she has taught at Perrine Elementary School in Dade County, Florida. During all of the years Respondent taught, except for the first year, she had classes approximately half of a regular size class. This was because she has been teaching Title I/Chapter I classes. "Title I", renamed "Chapter I", classes refer to classes funded and mandated as part of the Education Consolidation Improvement Act which targets children who are deficient in certain areas and concentrates on bringing them into the mainstream of the education process by concentrated remediation in small, directed education classes. It is a "given" that many of these children are difficult to teach and to control. 1980-1981 SCHOOL YEAR On October 29, 1980 Respondent was formally observed in the classroom by her principal, Gloria H. Gray. Although rated overall acceptable she was rated unacceptable in preparation and planning and in assessment techniques. Although rated acceptable in techniques of instruction, Respondent was rated unacceptable in one subcategory thereof because the proliferation of students' questions concerning the work indicated to the observer that the Respondent did not give clear assignments and directions to allow ample time for completion of tasks. Respondent was next formally observed by Principal Gray on December 12, 1980. Although Respondent was rated overall acceptable, she was rated unacceptable in classroom management because Mrs. Gray found much off-task behavior on the part of students, and Respondent appeared not to notice it. Through no fault of her own, Respondent had a very difficult first year experience with many interruptions. She was the foreman of the Grand Jury and was absent every Wednesday. In addition, she had legitimate family and medical problems causing frequent absences. To the extent possible, principal Gray initiated and followed through on numerous attempts to remediate Respondent's deficiencies in teaching. Mrs. Gray also provided an aide for Respondent in order to be assured that the education of her students was not being sorely neglected. Respondent was in a large pod with two other teachers. They helped Respondent in putting work on the board clearly. They also helped her in getting and using instructional material. Although Mrs. Gray testified that she was, in the spring of 1981, of the opinion that there was a repeated failure on the part of Respondent to communicate with and relate to the students in her classroom to such an extent that they were deprived of a minimal educational experience, she nonetheless rated Respondent acceptable in all categories and gave Respondent an overall acceptable rating on her Annual Evaluation for the 1980-1981 school year. Mrs. Gray gave Respondent the benefit of the doubt because Respondent had improved her teaching skills during the year, she had a good attitude toward trying to improve, she took Mrs. Gray's recommendations and attempted to implement them, and Mrs. Gray expected further improvement from Respondent the following year. Mrs. Gray further recommended Respondent for re-employment as an annual contract teacher. 1981-1982 SCHOOL YEAR Respondent was next formally observed in the classroom by her new principal Dr. Joan Hanley, on November 23, 1981. While Respondent was very devoted to self-improvement, she was nevertheless rated overall unacceptable and unacceptable in the category of preparation and planning because she did not have complete lesson plans for each of the following subjects she was responsible to teach: social studies, science, art, music, and physical education. Likewise, she did not have plans which could be used by a substitute in the event of her absence. Although she was rated acceptable in classroom management, Dr. Hanley offered suggestions for Respondent's improvement. It was not clear to Dr. Hanley whether Respondent's students were grouped for math. It is a standard instructional strategy to ascertain the ability levels of the students, group them accordingly, and plan separate instruction for the various groups. She also instructed Respondent to stand up and move between her groups of students in order to monitor the random activity that goes on. Respondent was formally observed in her classroom by Assistant Principal Ellen Supran on January 6, 1982. Although rated overall acceptable, Respondent was found unacceptable in one subcategory, techniques of instruction. This subcategory deals with the use of instructional strategies for teaching the subject matter. Her students were not grouped for math instruction and the subject matter was too difficult and too abstract for the students. Respondent was not getting feedback from them. During the remainder of the school year, Mrs. Supran assisted Respondent through informal visitations. On these occasions, Mrs. Supran was concerned about Respondent's lesson plans, her children being off-task, and the appropriateness of the tasks assigned to the students by Respondent. She spent time working with Respondent on lesson plans, materials, instructional strategies, grouping, and monitoring children's progress. Respondent had an accident during the 1981-1982 school year which resulted in extended sick leave. Dr. Hanley was unable to observe Respondent formally in the classroom for the remainder of that school year. Because Respondent was anxious to improve her teaching and because she had made a good start, Dr. Hanley felt that it was only fair to rate Respondent acceptable in all categories for her Annual Evaluation for the 1981-1982 school year. Therefore, for the school year 1981-1982, Respondent's second annual contract year, Respondent was found acceptable in all categories on her Annual Evaluation and was again recommended for employment. 1982-1983 SCHOOL YEAR Respondent's next formal observation was on November 23, 1982. Although rated overall acceptable, Respondent was rated unacceptable in knowledge of subject matter, because the observer, Dr. Hanley, felt Respondent needed improvement in grammar, particularly verb usage. More specifically, Dr. Hanley observed poor grammar was utilized orally by Respondent in the course of teaching other subjects. Hers was a significant error because Respondent was teaching a resource class in compensatory education. This is a remedial class which addressed the reading, language arts, and mathematics needs of low- achieving students. In every type of class, it is necessary that a teacher set a good example in spoken English. Because elementary school children model the speech of their teacher, Respondent's grammatical errors, which were frequent and excessive, would impede the students' acquisition of appropriate language arts skills. In remedial classes, the effect is more pronounced and reinforces poor language arts skills because the children are already deficient in that area. Respondent was next formally observed in the classroom by Dr. Hanley on December 7, 1982. Although rated overall acceptable, Respondent was again found unacceptable in knowledge of subject matter because she continued to make the same kinds of grammatical errors she had been observed making at the November 23, 1982 observation. The December 7, 1982 observation resulted in a prescription for remediation. Dr. Hanley suggested that Respondent record herself on a tape recorder so that she could become sensitized to verb forms. Respondent followed Dr. Hanley's advice and it helped on the subsequent observation, but she did not sustain the improvement as indicated below. Respondent was next formally observed in the classroom by Dr. Hanley on February 10, 1983. She was rated overall acceptable and made only one grammatical error, saying "cent" sometimes instead of "cents." Note was made of excellent behavior modification. On Respondent's Annual Evaluation for the 1982-1983 school year, Dr. Hanley rated Respondent acceptable in all categories and recommended her for employment for the next school year as a continuing contract teacher. Respondent had achieved tenure. 1983-1984 SCHOOL YEAR Respondent was next formally observed in her classroom by Dr. Hanley on May 7, 1984. Although rated overall acceptable, she was rated unacceptable in knowledge of subject matter and in a single subcategory of preparation and planning. She was rated unsatisfactory in the latter subcategory because her room was so cluttered that it was difficult to carry on her instruction. She was rated unacceptable in knowledge of subject matter because she was again making the same grammatical errors she had made the year before. (See Finding of Fact No. 20 that improvement was not sustained). For example, the following statements were written on Respondent's chalk board: "Dorothy want to go back home", " . . . work that I have not finish." Dr. Hanley reminded Respondent that they had worked on the "ed" and "s" endings on verbs before. Nonetheless, Respondent was rated acceptable in all areas on her Annual Evaluation for 1983-1984 and was recommended for continued employment as a continuing contract teacher. 1984-1985 SCHOOL YEAR Through the 1983-1984 school year, the School Board utilized the standard evaluation system which was an undefined system that allowed observers maximum discretion, without any clear or consistent criteria. It was essentially geared toward making any end-of-the year employment decision. With the advent of the 1984-1985 school year, a new method of evaluating teachers was put into effect. Beginning with the 1984-1985 school year, Respondent's performance was assessed under a new form of evaluation which was thoroughly tested by the School Board and which was negotiated and agreed-to between the School Board and Respondent's union. This is the Teacher Assessment and Development System (TADS). TADS is a highly specific research-based clinical supervision system. State-of-the-art research has characterized certain teaching behaviors that are effective in a learning environment. TADS has grouped these into categories of assessment criteria. Required teaching behaviors are very precisely defined and there is very little room for discretionary interpretation by the observer. Ideally, the system is governed by decision rules which eliminate the potential of an arbitrary or capricious application of the criteria. The system is intended to further develop and upgrade teaching skills and assist the individual teacher to perform better. On the down side, TADS was characterized by the School Board's expert, Dr. Patrick Gray, as a clinical form of evaluation which primarily identifies teaching behavior which is simply acceptable, but it would not identify behavior of superior or excellent performance. (TR-II 47) Respondent's first formal classroom observation under TADS was on November 13, 1984. She was rated unacceptable in preparation and planning because she only carried out a very small part of the lesson and because she did not follow the assessment item in her lesson plan. She was rated unacceptable in knowledge of subject matter because she presented the information to the children inadequately. There was no background given to draw out the students' previous understanding; no introduction, reinforcement, and drill; and no form of assessment to ascertain what the children had learned when the lesson was completed. She was rated unacceptable in classroom management, because there was disorder a good part of the time and the class was not conducive to learning. Respondent and students arrived late. There were many delays during the class period. The cardboard coins utilized in the lesson on coin values became a great distraction and Respondent was unable to bring the coins into the lesson. She only got into the very introductory part of the lesson and rambled in her instruction. Respondent was not able to pull the students together into a group of attentive listeners. She was also rated unacceptable in techniques of instruction because she never fully instructed the students about her expectations regarding what they were to do at their desks. The coins became the major focus of the children's attention and they were tossing them and taking them from one another. Respondent was rated unacceptable in assessment techniques because there was no assessment of the teaching objectives. As a result, there would be no way to tie up a lesson or help a teacher plan subsequent lessons. In order to aid Respondent in improving her performance, Dr. Hanley prescribed help. Dr. Hanley recommended that Respondent develop the skill of pacing her lessons so that she could complete the lesson within the allotted time; that Respondent seek help from Cynthia Muller, a PREP specialist, and that she also seek help from Dorothy Sissel, Chapter I Manager. Dr. Hanley also prescribed help in that she recommended that Respondent reorganize her room to make materials accessible for more efficiency. She recommended Mr. Holmberg, Assistant Principal, as a resource person. She also recommended that Respondent seek help from the Chapter I Specialist. Dr. Hanley recommended the Respondent seek help from Chapter I and PREP specialists because she felt that the on-the- spot classroom training by these very qualified people would be very helpful to Respondent. PREP stands for Florida Primary Education Program, a program mandated by the State of Florida pursuant to Section 230.2312, Florida Statutes. PREP mandates a diagnostic- prescriptive approach that enables each child to have an individualized program to permit development of that child's maximum potential and to achieve a level of competence by that child in basis skills. Pursuant to this approach, students are divided into three categories, with those developing at a normal level being taught with developmental teaching strategies, those having been identified as having potential learning problems, being taught with preventive teaching strategies, and those needing more challenging work, being taught with enrichment teaching strategies. The School Board has developed reading and math programs to comply with the statutory mandate. Respondent actually received help from Cynthia Muller, the PREP Specialist, in the areas of preparation and planning, classroom management and techniques of instruction. Mrs. Muller helped Respondent approximately on 9 to 10 occasions for a total of approximately 12 hours of assistance. She provided this assistance on November 7, 9, 26, 29 and December 4, 1984, and on February 7, May 28, June 6, and 11, 1985. In the course of her assistance, Mrs. Muller observed several problems with Respondent's teaching. There was a lot of off- task behavior. The children were jittery and walked around the classroom at will. They exhibited little motivation. Mrs. Muller found that much of the work was inappropriate for the students, above the level for which they were competent. That added to the off-task behavior. On November 26, 1984, Mrs. Muller did a demonstration lesson for Respondent showing her how the children could be motivated to stay in their seats and work quietly. She also demonstrated the use of the teacher manual in planning for the complete class period so that all of the children would receive their reading lessons within the prescribed timeframe. On another occasion, they also discussed the Total Math Program (TMP), Petitioner School Board's diagnostic-prescriptive program for math. TMP provides for pre- and post-testing of students and clustering students into particular groups. They discussed grouping students, assessing them, planning for them, and instructing them using a teacher's manual. Mrs. Muller also suggested a positive re-enforcement type of reward system. She also suggested that Respondent remove books and materials from the instructional area so that the class would have a clean place to work and place their books. Mrs. Muller also noticed misspelled words and improperly used words on the chalkboard e.g., "When he finish the book." Mrs. Muller's assistance, November 7, 1984 to June 11, 1985 overlaps several subsequent formal observations. Respondent was next formally observed in the classroom by Dr. Hanley on December 7, 1984. Despite Mrs. Muller's assessment on November 7 and 11 that there was some improvement, Respondent was rated unacceptable in preparation and planning, classroom management, and techniques of instruction by Dr. Hanley on December 7, 1984. She was rated unacceptable in preparation and planning because she had no assessment item in her lesson plan. Because Respondent told Dr. Hanley that she knew what was expected and she promised to do it in the future, Dr. Hanley did not make a further prescription in that area. Respondent was rated unacceptable in classroom management because her classroom was still very disorderly. Dr. Hanley recommended that Respondent designate areas for specific subjects and tasks within her room. Respondent was rated unsatisfactory in techniques of instruction because her lesson, again, was considered by Dr. Hanley to be a rambling one. Dr. Hanley found the lesson components not to be sequenced; Respondent did not accent the important points; Respondent was unaware of what her students were doing; she did not provide suggestions to her students for improving performance; she did not adjust her lesson when students were not understanding but went right on with what she was teaching rather than re-teach a concept. Dr. Hanley did not feel Respondent provided for closure of the lesson so as to help the children pick up the critical areas of the lesson and so as to be ready for the next lesson. Respondent continued to make grammatical and spelling errors, e.g., "...Santa Clause and other tradition." In order to help Respondent improve her performances Dr. Hanley recommended that Respondent observe two fellow teachers whom Dr. Hanley felt had excellent techniques of instruction. A conference-for-the-record was scheduled for the Respondent in December, 1984, but due to Respondent's illness and impending surgery, it was rescheduled for February 13, 1985. A conference-for-the-record is an official meeting regarding a teacher's teaching performance. It is required so that the teacher is officially notified that her deficient performance has not been remediated. At the conference, administrators went over Respondent's classroom observations. Respondent was notified that if she was still under prescription at the time of her Annual Evaluation, she would not receive her annual teaching increment (pay raise). From February through May, 1985, Perrine Elementary School was visited at least once a week by the Chapter I Educational specialist, Tarja Geis. She helped most of the teachers each time she visited. Chapter I is a federally funded program which addresses reading and math deficiencies in children from low income areas. It uses a language experience approach. Ms. Geis' opportunities to observe Respondent were short and sporadic. Her observations were not "formal" observations. However, when Ms. Geis did observe Respondent in the classroom, she noticed Respondent's inattentiveness to some of the children's behavior. She suggested ways to Respondent to improve that, most of which were "boilerplate" suggestions. Ms. Geis also observed one of Respondent's lessons and did a demonstration lesson for her on May 22, 1985, in order to show Respondent the language experience approach used in the Chapter I program. Ms. Geis discussed and/or demonstrated techniques to improve class management, student behavior, student comprehension and student attitude. On March 15, 1985, Ms. Geis gave a workshop for Chapter I teachers. All teachers who would have been working that day would have been in attendance. It is probable that Respondent attended that workshop. She had missed an earlier one in February because of her absence. Respondent indicated at formal hearing that she was not aware that Tarja Geis was a resource person for her use, but her perception is illogical in that Ms. Geis is a Chapter I Educational Specialist and Respondent teaches in the category of Chapter I students. Respondent also testified that she was not given in-service learning experiences by Dr. Hanley and Mr. Holmberg when she requested them. The workshop given by Ms. Geis would seem to address this request, contrary to Respondent's assertion. Respondent concurs that she attended at least one such workshop. Respondent was next formally observed in her classroom by Dr. Hanley on March 21, 1985. By this time, Respondent had received help from Mrs. Muller and Ms. Geis. She may have also sought help from the two teachers at her school. By her own testimony, she sought assistance from Ms. Jackerson and by a course taught outside of the usual school day. She showed great improvement and was rated acceptable in every category. Respondent was next formally observed in her classroom on May 7, 1985, simultaneously by Dr. Hanley and the area director, Phyllis Cohen. Under TADS, this is an external or dual observation where two observers assess the same classroom performance. Its purpose is to assure objectivity and fairness. Respondent was rated unacceptable in preparation and planning because her lesson plans were not carried out. While Respondent attempted to work with one group, the other groups' lessons were not implemented. The students were not on task. The group at the listening station was not doing its work. The group doing independent reading did not open their books. At least half the students did not receive their directed reading lesson. Respondent was rated unacceptable in knowledge of subject matter because her development of ideas and information was unclear and confusing. She would give insufficient definitions and did not reinforce with enough examples so that the students could understand the homework assignment. The lesson was not sequenced and Respondent was again using inaccurate language. The vocabulary words that the students were working on were not introduced to them and did not have any relationship to the lesson. Respondent was rated unacceptable in classroom management because her classroom was out of control and because of her problems in managing the transition time, getting and keeping students settled, and managing the different reading groups. Class started ten minutes late, and during transitions in the lesson, approximately twenty minutes were wasted. As the hour progressed, the noise crescendoed. Five to eight students were off-task at different times during the class. One student slapped another during the lesson. Respondent was not aware of the off-task behavior and did not redirect the students. Respondent was rated unacceptable in techniques of instruction because she did not introduce the lesson, provide opportunities for the students to practice, get feedback whether the students had obtained information, or provide reinforcement and follow-up. In other words the sequence was not appropriate. There was a lot of jumping around in the lesson. Respondent did not address the various learning styles of the students. Her communication was not precise enough for students to understand what she was trying to teach. She did not give the students feedback on their strengths and weaknesses. Although she used the teacher manual, she did not fill in between the questions with her own information. She asked the questions in a distorted manner. The students were unable to answer the questions and Respondent could not elaborate but went on to the next question. Her directions to the students were very poor, as were her explanations. She failed to rephrase explanations that were not understood. Her instructions to the listening station group were not specific enough. Her questions on the worksheet were not explained in a way that the students were able to proceed independently. They did not do the worksheet at all. Respondent was rated unsatisfactory in assessment techniques because she did not assess what the students were learning at their levels. Material was presented at a low cognitive level. She did not seem to be able to ascertain whether the students were learning what she was teaching them. She did not walk around to determine what each group was doing. In order to help Respondent improve her teaching performance, Dr. Hanley recommended that she work with Mrs. Muller again on the execution of her lesson plans in order to facilitate a directed reading lesson for each of her reading groups. To help Respondent improve her teaching performance, Dr. Hanley recommended that she observe another Chapter I teacher during a reading lesson to hone in on the development of ideas and information in a sequential and meaningful manner. Two teachers were named as resources. To help Respondent with her classroom management, Dr. Hanley recommended that Respondent work with Ms. Geis and the Assistant Principal to develop strategies for effective student management while beginning classes and during transition periods and that she work with an observer to sensitize herself to off-task, nonproductive activities on the part of students. It was also recommended that Respondent revamp her behavior modification plan to enhance student involvement. To help Respondent improve her techniques of instruction, Dr. Hanley recommended the Respondent again work with Ms. Geis and Mrs. Muller since she had improved after working with these two education specialists the prior year. Dr. Hanley recommended that Respondent review the elements in a basal reading lesson, i.e., background, sequence, and closure. She also recommended that Respondent rehearse her reading lesson so that she would think ahead about the main points and key definitions. She recommended that Respondent work with the observers to sensitize herself to situations in which the students are confused, and that she develop strategies to improve clarification. Dr. Hanley was also available to Respondent as a resource. In order to help Respondent improve techniques of instruction, Dr. Hanley recommended that Respondent have a person observe Respondent while she was teachings and help her on the spot when her students were not following the lesson. She suggested the Respondent develop assessment techniques which incorporated multilevel assessment activities. She also recommended that Respondent include development of summative assessment instruments in conjunction with these other activities. She recommended that Ms. Geis and the Assistant Principal be used as resources to help Respondent develop a sensitivity in identifying whether the students were on-track. On May 28, 19 85, Mrs. Muller discussed reading lessons with Respondent. She went over sequencing. She asked Respondent to rehearse her reading instruction. Mrs. Muller also gave Respondent a PREP teacher guide and a sample directed reading lesson. She referred her to a section on classroom organization and management. On June 6, 1985, Mrs. Muller was to visit Respondent's class and to observe a directed reading lesson. Respondent, however, was doing a different lesson. There was very little organization in the lesson. Mrs. Muller saw some improvement in the Respondent's teaching; however, considering the amount of time she had spent with the Respondent, she would have expected to have seen more progress. Although Respondent had demonstrated a willingness to receive suggestions for improvement and a willingness to work toward acceptable ratings, her Annual Evaluation for the 1984-1985 school year was unacceptable. Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Nonetheless, Respondent was recommended for continued employment for the next school year as a continuing contract teacher. It was Dr. Hanley's hope that Respondent would remediate herself during the next school year. Respondent remained on prescription and would not be entitled to her pay increment (raise) for the next school year while she was still on prescription. 1985-1986 SCHOOL YEAR On October 16 and 17, 1985, Respondent received more help from a fellow teacher, Joyce King. Ms. King discussed with Respondent the instructional processes of sequencing, interfacing subjects, and closure. Ms. King also demonstrated a reading lesson for Respondent. On October 22, 1985, Respondent received further help from another teacher, Doretha P. Thomas. Respondent observed Ms. Thomas during a developmental reading lesson in her class. Ms. Thomas also discussed with Respondent the amount of time used with the reading group, scheduling, and possible changes Respondent could make in her own planning. Respondent was next formally observed in her classroom by Dr. Hanley on October 30, 1985. The class was working on the Dade County required diagnostic-prescriptive reading curriculum known as RSVP. This curriculum contemplates that students are to be pretested and their deficiencies listed on individual profiles so that the teacher knows what specific skills to teach them. It is mandatory that the students' skills be profiled before the teacher attempts to work with them. Respondent had not completed the RSVP paperwork as of the date of this observation. I accept Respondent's testimony that she only had from October 18 until October 30, 1985 in which to complete these profiles; that she was under some disadvantage in preparing the profiles because of the administration's peremptory move of all her materials to a smaller classroom on Friday October 18; and that her observation rating was somewhat tainted by the temporary mess that resulted from the move. However, I find that the period involved would have been sufficient to complete at least the profiles if she had performed her tasks diligently in the intervening seven workdays. Respondent was rated unsatisfactory in classroom management because the class was not well managed and the students were not working. After the midpoint of the period, three students did no work. In the last ten minutes of the periods, six students did no work. Many students completed worksheets during the first twenty minutes of the class and then colored pictures. These students of Respondent's were not re- directed by her. Respondent seemed to be unaware of the off-task behavior. In order to help Respondent with her classroom management, Dr. Hanley recommended the Respondent move among the students periodically. She also recommended the Respondent plan sufficient work for the instructional period and that she clarify to students what additional study and enrichment activities were available when work is completed. Respondent was rated unacceptable in techniques of instruction because she was not monitoring pupil performance. Students were doing work incorrectly on their worksheets, and Respondent did not circulate and catch the errors or clarify them. Therefore, incorrect material was being reinforced by the students in their work. Several of the students did not understand the follow- up worksheets. The students' confusion indicated that they were not being taught at their appropriate level. They were being taught on a hit or miss method since their profiles had not been completed. In order to help Respondent improve her techniques of instruction, Dr. Hanley recommended that she fulfill the requirements of RSVP by completing her profiles, grouping her children, and making a class profile chart. Dr. Hanley also recommended that the teacher aide assist Respondent with the pretesting. Dr. Hanley listed the area PREP specialist and herself to review grouping for instruction. Respondent was rated unsatisfactory in assessment techniques because although she, as part of her school faculty, had been instructed every year as to the School Board requirements for maintaining student folders, her student folders were deficient. She had no papers dated after September 19, 1985 in them. In order to help Respondent improve her assessment techniques, Dr. Hanley clarified what was expected as far as classroom folders. Respondent must have at least one graded and dated paper per week in reading, math, and writing in each student's folder. Dr. Hanley listed herself and other classroom teachers as a resource for Respondent. Respondent was next formally observed in the classroom by Assistant Principal, Herbert Holmberg. He rated her unsatisfactory in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because she had grammatically incorrect information and statements on the chalkboard. Knowledge of subject matter was not exhibited as Respondent read verbatim from the teacher manual. She did not address various cognitive levels. In order to help Respondent improve her knowledge of subject matter, Mr. Holmberg recommended that Respondent prepare her material, information, and directions in advance and that her verbal and written usage be grammatically correct. He suggested more flexibility and elaboration during reading. He also suggested that the subject matter be presented at more than one level. As recommended resources, he listed the Principal, the Assistant Principal, and a peer teacher. Respondent was rated unsatisfactory in techniques of instruction because she did not have a sequence in the lesson. The grammar on the board was incorrect. Her spelling was incorrect. There was no variety to her activities. There was no assessment of closure in the lesson. As resources for help, he recommended the Assistant Principal, the PREP specialist, and a peer teacher. Another conference-for-the-record was held with Respondent on December 9, 1985. Respondent's teaching performance was discussed. Dr, Hanley was hopeful the Respondent would be able to remediate her deficiencies; however, Respondent was put on notice that if she was not fully remediated by the close of the school year she would be recommended for termination for cause. Respondent was next formally observed by Charles Sherwood, Directors Basic Skills on December 13, 1985. She was rated unsatisfactory in techniques of instruction and assessment techniques. Respondent testified that Dr. Sherwood orally indicated to her that her rating was satisfactory and created no problems but the business record of the school (P 30) shows that he rated her unsatisfactory in techniques of instruction because all of the pupils received the same spelling lesson, despite the differences in their reading levels; and that he rated her unsatisfactory in assessment techniques because, although the school year was very close to being halfway over, Respondent still had not completed her PREP roster. Respondent was next formally and simultaneously observed in her classroom in another external observation on March 17, 1986, by Dr. Hanley and Mrs. Cohen, and she was rated unsatisfactory in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because there were a substantial number of errors in teaching the concept "1/2". The words "equal" and unequal" were not used, although they were key vocabulary words in the teacher's manual for the lesson. Respondent told the children that a whole with a line in it becomes one-half. She did not indicate that the line had to be in the middle of the whole in order for there to be halves. In order to help Respondent improve her knowledge of her subject matter, Dr. Hanley recommended that Respondent use the teacher's manual for planning and delivering of instruction. It was requested the Respondent master the use of and use the words "equal" and "unequal" appropriately. She also recommended the Respondent use the area specialists, peer teachers, and the Assistant Principal as resources. Respondent was rated unacceptable in techniques of instruction because the explanations of the concept of a whole, half, and fractions were not clear to the reviewer, and the reviewers felt the components necessary to address the key concepts were not effectively presented, thereby confusing she children, and an appropriate vocabulary was not used. They felt Respondent's lesson was again lacking in sequence. Additional resources and suggestions for improvement were prescribed to Respondent. Another conference-for-the-record was held with the Respondent on April 16, 1986. Some of Respondent's concerns regarding the TADS process were addressed. Respondent's improvement was discussed and Respondent was again notified that if she failed to be removed from prescription by the end of this second year of deficiency, recommendation of dismissal for cause would be made. Respondent was next formally and simultaneously observed in the classroom in another external observation by Dr. Hanley and Evelyn Evans, another area director. Respondent was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because she made errors in subtracting. The errors which she made on the board were not corrected. She also made errors in the process itself. These errors were demonstrated on a chalkboard at formal hearing which was erased without being admitted in evidence, but the oral testimony and business records of this observation are sufficient to support this finding. Respondent did not correct student errors, used inappropriate terminology referred to the one's and ten's columns as the right column and left columns and thereby confused the children. Dr. Hanley found the deficiencies in this lesson very similar to the math lesson observed on March 17, 1986. Respondent was still using her own vocabulary. Despite the fact that most of the children in her class and certainly most of our society could understand Respondent's use of "take away" for "subtract" and use of similar colloquialisms, the School Board established the need for more precise and consistent language in teaching early math skills. Respondent did not show evidence of having mastered the subject matter. In order to help Respondent improve her knowledge of subject matter, Dr. Hanley again emphasized mastery of vocabulary and concepts in the teacher's manual and advised adhering closely to the recommended word usage and plan of instruction. Respondent was instructed not to use her own vocabulary and methods until she had total command of the material. Respondent was rated unacceptable in techniques of instruction because of many errors. The lesson was not properly sequenced; the children did not have a basic understanding of subtracting without regrouping before beginning subtracting with regrouping; Respondent's use of her own vocabulary confused the children; Respondent did not clarify by rephrasing with different words, but rather, used the same vocabulary over again that the children had not understood the first time. Respondent blocked the chalkboard while she was demonstrating to the class, was inattentive to the need for a chair by one student, and required a reading level of the children in math for which they were not prepared. Respondent again demonstrated improper subject-verb agreement, e.g., "What is the numbers?" and dropping endings on verbs, e.g., "As time go on", "Three minus two leave one." In order to help Respondent improve her techniques of instruction, Dr. Hanley again recommended the Respondent work with another second grade teacher to understand and become proficient in following the sequence and the delivery of instructions to include introduction, background, and the other steps in sequencing. She was also instructed to master the vocabulary and instructional plans in the teacher's manual and to adhere to them while teaching. She was instructed to develop a method for re-teaching individual students who appeared not to understand the lesson. Another conference-for-the-record was held on June 6, 1986. Respondent's unacceptable teaching performance was reviewed. Respondent was advised that a recommendation for dismissal for cause would be made. Respondent was also given an end of the year prescription, as required by TADS. Although Respondent had improved her classroom management during the year, she was still unacceptable in knowledge of subject matter and techniques of instruction for the 1985-1986 school year. The two unacceptable categories are key categories in teaching. Improvement in these had either been slight or not at all, and Dr. Hanley had exhausted the school system's resources in attempting to assist Respondent. Respondent's testimony at formal hearing corroborates her supervisors' observations as to her failure to exhibit appropriate English grammar and usage with regard to subject-verb tenses. Gloria Jackerson, a retired teacher, testified on behalf of Respondent. Although this retired teacher of 21 years and a candid witness, she is Respondent's best friend. While this relationship may not have colored her favorable testimony, she admits that she has never observed Respondent teach in the classroom nor has she taught Chapter I students in Miami-Dade County under the present program. Therefore, her testimony with regard to Respondent's competency must be rejected. Evidence presented by several satisfied parents is all in Respondent's favors however, most had no training in classroom observation nor were they able to observe Respondent teaching in her classroom over any significant period of time. Their observations, therefore, were of minimal duration and purely subjective. No objective records showing whether their children were promoted or how their children progressed under Respondent's teaching were offered to substantiate their layman's viewpoint. With regard to the testimony of Robert Collins, a Learning Disability teacher in the Dade County School System, who requested that his child be placed in the Respondent's class and who had a brief opportunity to observe Mrs. Brewer in the classroom and who testified that her classes were well managed, his observation opportunities were so brief and so sporadic as to not outweigh the greater weight of the expert testimony of Petitioner's witnesses. The supportive evidence of Geraldine Townsend, another Perrine teachers is not helpful to Respondent in that this witness also had no truly meaningful observations of Respondent. The testimony of Mrs. Collins, a mother and also a teacher's aide, that some of the formal observers made Respondent's classes nervous and jittery is accepted, but this circumstance does not eliminate or seriously mitigate Respondent's responsibilities to teach effectively and to keep her students under control during observations. Respondent Brewer has worked hard to obtain her education and position. She is a deeply religious, compassionate, and caring individual. She has the type of supportive personality the young people of this society dearly need to know and relate to. She has good rapport with the young and communicates with them in loving and supportive ways. However, her personal qualifications and attributes do not outweigh the clear and convincing evidence of her incompetency as demonstrated by the foregoing Findings of Fact. On August 20, 1986, Petitioner School Board suspended Respondent, 55 years old, from employment, 2.20 years short of her attaining full retirement, and further initiated dismissal procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner, School Board of Dade County, Florida, enter a Final Order sustaining the suspension, without pay, as of August 20, 1986, of Respondent, Anna M. Brewer, and dismissing Respondent Anna M. Brewer as a teacher in the Dade County Public Schools. That the Educational Practices Commission enter a Final Order suspending Respondent's Florida teaching certificate for five years or until she demonstrates competency pursuant to statute and ruled whichever occurs first. DONE and ORDERED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 86-3926, 87-0468 The following constitutes specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner School Board's PFOF Covered in FOF 1. Covered in FOF 2 and 3. Covered and corrected to reflect the record in FOF 5. Covered in FOF 6. Covered in FOF 7. 6-8. Rejected as subordinate and unnecessary except as set out in FOF 11. Covered in FOF 8. Except to the extent it is subordinate and unnecessary, it is covered in FOF 9. Rejected as subordinate, unnecessary and cumulative. Partially addressed in FOF 11. Covered in FOF 10. Covered in FOF 11. Covered in FOF 12. Covered in FOF 13. 16-18. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. Covered in FOF 17. 22-23. Covered in FOF 18. Covered in FOF 19. Covered in FOF 20. Covered in FOF 21. Covered in FOF 22. Covered in FOF 23. Covered in FOF 24. Covered in FOF 25. Covered in FOF 26. Except to the extent it required expansion to fully conform to the record and except to the extent its proposals are subordinate and unnecessary, this proposal is covered in FOF 26. 33.-42. Covered in FOF 27-28. 43.-47. Except as contrary to the record for expression or subordinate, covered in FOF 29. Covered in FOF 30. Covered in FOF 31. Covered in FOF 32. Covered in FOF 33. Covered in FOF 34. Covered in FOF 35. Covered in F0F 36. Modified to more accurately reflect the record as a whole, in FOF 37. Modified to more accurately reflect the record as a whole, in FOF 38. Covered in FOF 39. Covered in FOF 41. Covered in FOF 42. , 62., 64., 66. and 68. are covered in FOF 43. , 63., 65., 67. and 69. are covered in FOF 44. 70.-73. Covered in FOF 45. Covered in FOF 46. Covered in FOF 47. Covered in FOF 48. Covered, expanded and modified so as to reflect the competent, substantial evidence of record as a whole in FOF 49. Covered in FOF 50. Covered in FOF 51. Covered in FOF 52. Covered in FOF 50 and 53. Covered in FOF 54. Covered in FOF 55. Covered in FOF 56. Covered in FOF 57. Covered in FOF 58. Covered in FOF 59. Covered in FOF 60. 89-91. Expanded and modified to reflect the competent, substantial evidence of record and to eliminate the subordinate and unnecessary in FOF 61. Covered in FOF 62. Except to the extent it is subordinate and unnecessary, covered in FOF 63 and 65. Covered in FOF 64. 95-96. Covered in FOF 65 except for cumulative and unnecessary material. Covered in FOF 66. Covered in FOF 67. Covered and expanded in FOF 68. Covered in FOF 69. Except to the extent it is subordinate and unnecessary or cumulative, covered in FOF 70. Covered in FOF 71. Covered in FOF 72. Covered in FOF 73. Rejected as cumulative. Covered in FOF 74. Rejected as cumulative. Covered and expanded in FOF 80. Petitioner Betty Castor's (EPC's) PFOF Since this petitioner adopted the PFOF of Petitioner School Board, the rulings are also the same. Respondent's PFOF Covered in FOF 1. Covered in FOF 2-3. Covered in FOF 4. There is no PFOF. Covered in FOF 7-13, most specifically in FOF 13. Covered in FOF 14-17, most specifically in FOF 17. Covered in FOF 18-22, most specifically in FOF 22. Covered in FOF 23-25, most specifically in FOF 25. 9-10. Covered in FOF 26. Rejected as not supported by the evidence. Rejected as not supported by the evidence and for the reasons discussed in FOF 75. Rejected as not supported by the evidence and for the reasons discussed in FOF 77. Rejected as not supported by the evidence and for the reasons discussed in FOF 76. Rejected as not supported by the evidence and for the reasons discussed in FOF 78. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madeline P. Schere, Esquire Board Administration Building Suite 301 1450 Northeast Second Avenue Miami, Florida 33132 J. David Holders Esquire 211 South Gadsden Street Post Office Box 1694 Tallahassee, Florida 32302 William DuFresne, Esquire 2929 Southwest Third Avenue Suite 1 Miami, Florida 33129 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Notice of Specific Charges filed on August 28, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Miami- Dade County, Florida. At all times pertinent to this case, Respondent was employed as a social studies teacher at Horace Mann Middle School ("Horace Mann"), a public school in Miami-Dade County, Florida. At all times material, Respondent's employment was governed, in part, by a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Dr. Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dorothy De Posada, the assistant principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Petitioner alleges, in its Notice of Specific Charges, an array of factual scenarios spanning several years that, when considered individually or in concert, supply just cause for Respondent's termination. Below, the undersigned has endeavored to address each seriatim. 2010-2011 School Year: Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011. On May 25, 2011, Dr. Jones-Carey held a Conference for the Record ("CFR") regarding this alleged incident.1/ Respondent was directed to strictly adhere to all Miami-Dade County School Board ("MDCSB") rules and regulations, specifically, rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. 2011-2012 School Year: On April 13, 2012, subsequent to the investigation of an alleged incident that occurred on February 27, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB rules and regulations, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics. Respondent was further directed to refrain from contacting any of the parties in the incident, refrain from using physical discipline, and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Respondent agreed to a 17-day suspension without pay regarding the alleged incident. 2012-2013 School Year: October 24, 2012 On November 16, 2012, subsequent to an investigation of an alleged incident that occurred on October 24, 2012, a CFR was held. Respondent was directed to adhere to all MDCSB policies, specifically 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; refrain from contacting any parties involved in the investigation; and "to conduct [herself] both in [her] employment and in the community in a manner that will reflect credit upon [herself] and M-DCPS." Additionally, on November 28, 2012, Respondent was issued a letter of reprimand concerning the October 24, 2012, incident. November 5, 2012 On November 5, 2012, Dr. Jones-Carey observed several male students standing outside of Respondent's classroom during the class period. While Petitioner contends said students were told to remain outside of the classroom at Respondent's instruction due to body odor, Petitioner failed to present sufficient evidence to support such a finding.2/ November 26, 2012 Shawnda Green-McKenzie is the Horace Mann social studies department chair and a social studies teacher. Ms. McKenzie explained that, on or around November 26, 2012, it was necessary for several homeroom classes to be "dissolved." The students in the dissolved homeroom classroom were to be added to the roster of other homeroom classes. Ms. McKenzie further explained that the homeroom teachers, such as Respondent, were unaware of the number of additional homeroom students they would acquire until the day the additional students arrived. On November 26, 2012, Ms. Green-McKenzie observed that a substantial number of the newly acquired students did not have desks or chairs available for their use in Respondent's homeroom class. She further observed some of the children sitting on the floor. Petitioner failed to present any evidence concerning when the new students presented themselves to Respondent's homeroom or the duration said students did not have available desks or chairs. While Ms. Green-McKenzie agreed that children sitting on the floor would "be kind of a safety concern if someone were walking around in the classroom," she further opined that Respondent's classroom was "definitely too small to take any additional desks" and adding additional chairs would make it "tight." February 8, 2013 On March 21, 2013, subsequent to an investigation of an alleged incident that occurred on February 8, 2013, a CFR was held. Respondent was directed to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit upon herself and the teaching profession. On April 9, 2013, Respondent issued a letter of reprimand concerning the alleged incident which likewise directed her to adhere to MDCSB policies and conduct herself in her employment and community in a manner that would reflect credit to herself and the teaching profession. February 20, March 7, and April 1, 2013 Dr. Jones-Carey testified that, on those occasions when a teacher is absent and a substitute teacher is unavailable, the students are typically "split" among classrooms within the same department. Teachers are expected to cooperate and receive the "split-list" students. Prior to February 9, 2013, Respondent was accommodating and amenable to accepting students on the "split-list." On February 20, March 7, and April 7, 2013, however, Ms. Green-McKenzie was informed that Respondent was unable to receive, or uncomfortable in receiving, any additional students. Respondent's refusal to accept the split-list students was premised upon her concern that accepting students, who may potentially have behavioral problems, may incite further problems between herself and the Horace Mann administration. After the second occasion (March 7, 2013), Ms. McKenzie-Green simply stopped placing Respondent's name on the split-lists. On each of the above-referenced occasions, Ms. McKenzie Green accepted the Respondent's split-list students into her classroom. Ms. McKenzie-Green explained that her classroom is a "double" that always has additional space and seating and can accommodate upwards of 60 students. Dr. Jones-Cary credibly testified that Respondent's unwillingness to accept the split-list children created a disruption in the "flow of instruction" and was disruptive to the operation of the school. March 1 and 5, 2013 On March 1 and March 5, 2013, Ms. De Posada observed Respondent, during class, seated in a chair in the doorway of her classroom with her feet up on the doorframe. On both occasions, Ms. De Posada directed Respondent to move inside the classroom; however, she refused. March 7, 2013 On March 7, 2013, Ms. De Posada observed that Respondent's classroom door was open. When Ms. De Posada directed Respondent to close the door, Respondent refused. In addition to Ms. De Posada's directive, Dr. Jones-Carey had previously issued an email directive to all faculty and staff to keep the classroom doors closed in an effort to preserve the newly-installed air-conditioning system. March 12, 2013 On March 12, 2013, Ms. De Posada was present in the main office with several parents, as well as clerical staff. Respondent was also present in the main office for the purpose of making photocopies. Due to the number and nature of individuals present, coupled with a pending deadline on another administrative matter, Ms. De Posada requested Respondent to leave the main office and offered clerical assistance in providing Respondent the needed copies. Ms. De Posada credibly testified that, in response to the request, Respondent complained loudly and defiantly, and refused to leave the office when directed. March 21, 2013 On March 21, 2013, Ms. De Posada presented to Respondent's classroom to conduct an official observation. On that occasion, she observed that, after the class bell had rung, Respondent's students remained outside and unsupervised. Ms. De Posada took it upon herself to usher the students inside the classroom. Respondent arrived prior to the late bell and took her seat at her desk. Ms. De Posada advised Respondent that she was there to officially observe and requested Respondent's lesson plans. Ms. De Posada credibly testified that Respondent thereafter opened her desk drawer, tossed her lesson plans to Ms. De Posada without speaking, and slammed the desk drawer.3/ Respondent proceeded to call roll and, upon completion of same, began reading the paper. Once finished her reading, Respondent remained in her chair and, with the exception of reprimanding three children, did not engage with the students. Respondent did not engage in any conversation with Ms. De Posada throughout the duration of the observation. Respondent concedes that she did not interact with Ms. De Posada during the observation because of her concern of being falsely accused of irate or belligerent behavior. April 3, 2013 On April 3, 2013, Horace Mann held a mandatory faculty meeting to provide training for the Florida Comprehensive Assessment Test ("FCAT"). Per the UTD Contract, teachers are required to extend their workday for the purpose attending faculty meetings; however, such meetings cannot exceed one hour and shall begin no later than ten minutes after students are dismissed. On this occasion, the faculty meeting was scheduled to begin at 4:00 p.m., however, it began a few minutes later to allow all teachers to arrive. Respondent, believing the UTD Contract allowed for her to leave at 5:00 p.m., left prior to the meeting being formally dismissed and without prior approval, at approximately 5:00 p.m. When Dr. Carey-Jones called out to Respondent, she continued to walk away from the meeting. Respondent was notified via a school-wide email that a make-up session for the FCAT training would be conducted at 8:20 a.m. Respondent perceived the make-up session was voluntary because it was scheduled prior to 8:30 (the time she believes she is required to work) and conflicted with a FCAT practice run also scheduled for that morning. Respondent did not seek clarification as to where she was to report. Accordingly, Respondent did not present to the training, but rather, went to the testing center. It is undisputed that Respondent did not complete the requisite training, and, therefore, was unable to proctor the FCAT exam. As a result, other teachers were assigned to cover Respondent's duties or responsibilities. April 24 and May 6, 2013 On April 24, 2013, a CFR was held and Respondent was directed to adhere to School Board polices and conduct herself in her employment and community in a manner that would reflect credit upon herself and her profession. On May 6, 2013, following Dr. Jones-Carey's recommendation that Respondent's employment be terminated, the Office of Professional Standards ("OPS") held a final CFR. Thereafter, OPS recommended that Respondent's employment be suspended pending dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Miami-Dade County School Board enter a final order finding Shavonne Anderson guilty of gross insubordination, suspend her employment without pay for a period of 180 school days, and place her on probation for a period of two years. Because Ms. Anderson has already been suspended for more than 180 school days, it is RECOMMENDED that her employment be reinstated, with the calculation of back pay not to include pay for the 180- day suspension period. DONE AND ENTERED this 30th day of December, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 30th day of December, 2013.
The Issue Whether Respondent committed the actions set forth in the Notice of Charge of Misconduct in Office, dated December 18, 2013, and if so, whether these actions constitute just cause for suspension.
Findings Of Fact The Walton County School Board (School Board) is charged with the responsibility to operate, control, and supervise the public schools within the School District of Walton County, Florida. During the 2013-2014 school year, Ms. Harriet Hurley was a teacher at Walton Middle School. Ms. Hurley had earlier been a teacher in Georgia for eight years, had been employed in Walton County Schools in 1984 for a period of three years, and taught in Okaloosa County Schools for five years. She then returned to Walton County Schools where she has been ever since, for a career of over 30 years. In addition to her responsibilities as a teacher at Walton Middle School, Ms. Hurley assists in scheduling parent- teacher conferences for students at Walton Middle School. Ms. Hurley’s responsibilities in scheduling conferences are limited to a coordination function. She is not responsible for addressing the substance of the issues to be addressed in the conferences or becoming involved in attempting to resolve them. Principal Hope never asked Ms. Hurley to assume a role as a guidance counselor. Ms. Hurley is employed by the School Board. As a member of the School Board’s instructional staff, Ms. Hurley’s employment is subject to section 1012.33, Florida Statutes (2013), which provides that her employment will not be suspended or terminated except for “just cause.” As a teacher, Ms. Hurley is required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures of the School Board of Walton County, Florida. Ms. Hurley is not the legal guardian of her granddaughter, B.C., who is a student at Walton Middle School. On November 20, 2013, Ms. Hurley’s granddaughter, B.C., approached her in the adult dining area about a group math assignment that was upsetting her. B.C. told Ms. Hurley that she had been told by her sixth-grade math teacher, Ms. Black, that her “high grade was gone” because of the failure of her group to complete a group math assignment. B.C. told Ms. Hurley that she blamed S.A., another student in her group, for their failure to complete the work. Ms. Hurley immediately left the adult dining area with her lunch only partially eaten and went with B.C. back to Ms. Black’s classroom. B.C. had been released for lunch a few minutes before the other students because she was an A/B Honor Roll student, so the other students were still in the classroom when Ms. Hurley arrived there. When Ms. Hurley and B.C. arrived at the classroom, the students were packing up their personal items in preparation for their release for lunch. Ms. Black testified in part: At that time, I think it was because the students leave five minutes early, A/B honor roll students. I don’t really want to go ahead and teach them anything, because they’re missing that opportunity to learn. At that time I get them to pack up and get their things together to leave for lunch. There was a high level of noise in the classroom. Ms. Black, in her first year as a teacher, was at her desk trying to help some students who did not understand something, and was in a verbal altercation with S.A., who was walking away from her. On November 20, 2013, S.A. was not a student in one of Ms. Hurley’s classes. Ms. Hurley addressed S.A., telling him that he should not talk to his teacher that way. Ms. Hurley told S.A. to “come here to me.” She was upset with S.A. and told him that he needed to stop playing around. In a loud and forceful tone of voice, she told him that he was not going to be the cause of a “straight A” student getting a bad grade and that he needed to concentrate on his schoolwork. She told him that she knew his mother, who worked at a KFC-Taco Bell restaurant in Miramar Beach, and that she would talk to his mother if necessary. S.A. denied that his mother worked at KFC, and Ms. Hurley restated that she knew that his mother did. The other students in the class heard Ms. Hurley’s disparagement and public discipline of S.A. The bell rang and Ms. Hurley and the students began to leave the classroom. S.A. was embarrassed and upset by the incident. Due to the fact that the students were already packing up their things to leave, and because Ms. Black had been in a verbal altercation with S.A., the actions of Ms. Hurley in Ms. Black’s class did not disrupt the students’ learning environment. Ms. Hurley’s actions were unnecessary. She might have comforted B.C., and encouraged B.C. and her parents to pursue the issue with Ms. Black. S.A. was not one of Ms. Hurley’s students and at the time she decided to go to Ms. Black’s class Ms. Hurley had not directly witnessed any behavior by S.A. that called for immediate correction. Even had it been appropriate for Respondent herself to take action based upon her granddaughter’s information, there was no emergency which required that Ms. Hurley intrude upon a colleague’s class and loudly berate S.A. in front of other students. She used her institutional privileges as a teacher to gain access to Ms. Black’s classroom in order to assist her granddaughter. As Ms. Black was leaving her classroom, she saw that S.A. was reluctantly moving toward the door and she noticed he was crying. She attempted to comfort him. Ms. Black then reported the incident to Mr. Jason Campbell, Assistant Principal, who was in the student lunch room. A few minutes later, S.A. also approached Mr. Campbell to report his version of the incident. Ms. Hurley returned to her lunch in the adult dining room. When Ms. Black came in to the dining room later, Ms. Hurley apologized to her for coming into her classroom. That evening, Ms. Hurley drove to Miramar Beach and went to dinner at the fast food restaurant where she knew Ms. A. worked. Ms. Hurley was one of Ms. A’s teachers when Ms. A. had been in the seventh grade, and the two were casual acquaintances. Ms. Hurley told Ms. A. what had happened that morning with S.A. and B.C. in their math group. Ms. Hurley told Ms. A. that she had “kind of stepped out and went into grandma mode” and had “gotten onto” (disciplined) S.A. Ms. Hurley relayed that she had told S.A. that she knew his mother and that if he did not improve his conduct, she was going to let his mother know about his behavior. During the course of the conversation, Ms. A. relayed that she was concerned about an incident involving a damaged globe from Mr. Price’s classroom, which was S.A.’s SPEAR classroom (“home room”). The following day, on November 21, 2013, Ms. Hurley removed S.A. from his first-period classroom. Neither Principal Hope nor Vice Principal Campbell authorized Ms. Hurley to remove S.A. from his first-period classroom on November 21, 2013. On November 21, 2013, Ms. Hurley contacted S.A.’s mother on the telephone on her own initiative and without the authority of Principal Hope or Vice Principal Campbell. Ms. Hurley called Ms. A. on the telephone with S.A. present. Ms. Hurley and Ms. A. talked about the incident involving S.A. and the damaged globe from Mr. Price’s classroom. The telephone conversation had barely begun when Mr. Hope, upon learning that Ms. Hurley had gone to S.A.’s classroom and removed him from class, came into Ms. Hurley’s room and took S.A. back to Mr. Hope’s office. While the School Board alleged that Ms. Hurley and Ms. A. discussed the incident that happened in Ms. Black’s classroom the day before, this was not shown by the evidence. The allegation that Ms. Hurley was misusing her institutional privileges by engaging in the phone call may be correct, for Ms. Hurley was not authorized to discuss the substance of parent/teacher conferences, but was instead limited to scheduling responsibilities. The evidence did not show that the phone conversation was conducted for personal gain or advantage to Ms. Hurley, however. The School Board’s further argument that Ms. Hurley’s actions on November 21, 2013, reduced the ability of Principal Hope to efficiently perform his duties is also rejected. Assuming that Principal Hope could even be considered a “colleague” of Ms. Hurley’s, the evidence showed that he was able to efficiently “track down” S.A. with minimal effort. To the extent that Ms. Hurley’s actions on November 21, 2013, exceeded her “job description,” they could be corrected with a simple directive or memorandum, and in the absence of evidence that her actions were taken for her personal gain, they are not a just cause for discipline. Statements were taken from several students in Ms. Black’s math class regarding the incident on November 20th, which vary in detail, but taken as a whole corroborate the findings of fact above regarding the incident on November 20, 2013. No statement was taken from B.C., and neither party called B.C. as a witness at hearing. On December 2, 2013, Ms. Hurley met with Walton Middle School administration to discuss the events of November 20 and November 21, 2013. On December 17, 2013, Principal Tripp Hope issued a letter of reprimand advising Respondent that he would be recommending a 10-day suspension without pay to the Superintendent. On December 18, 2013, the Superintendent notified Respondent of her intention to recommend a 10-day suspension without pay. A Notice of Charge of Misconduct in Office, dated December 18, 2013, notified Respondent of the Petitioner’s intent to suspend her employment for 10 days without pay. (As stipulated by the parties.) Although the Notice of Charge of Misconduct in Office did not explicitly identify all rules that Ms. Hurley was charged with violating, the allegations of more specific rule violations were included in the Letter of Reprimand which was attached to the charge. Ms. Hurley was not prejudiced or hindered in the preparation of her defense by any lack of specificity in the charging documents. Ms. Hurley is substantially affected by the intended action of the School Board to suspend her employment without pay for ten days. The evidence did not show that Ms. Hurley failed to “value” the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, or the nurture of democratic citizenship. The evidence did not show that Ms. Hurley did not strive for professional growth or did not “seek” to exercise the best professional judgment or integrity. The evidence did not show that Ms. Hurley did not “strive” to achieve or sustain the highest degree of ethical conduct. The evidence showed that by entering S.A.’s classroom and raising her voice in anger towards him in the presence of other students, Ms. Hurley failed to make reasonable effort to protect S.A. from conditions harmful to his learning or to his mental health. The evidence showed that any required discipline of S.A. should not have been administered by Ms. Hurley and so her actions were unnecessary. Her actions, which reduced S.A. to tears, exposed him to unnecessary embarrassment and disparagement. The evidence showed that in entering another teacher’s classroom to assist her granddaughter by disciplining S.A. when he was not even one of her students, Ms. Hurley used institutional privileges for personal gain or advantage. The evidence did not show that Ms. Hurley lacked integrity, high ideals, or human understanding or that she failed to “maintain or promote” those qualities. The evidence did not show that in entering Ms. Black’s classroom during the final minutes of the class, when the students were already packing up their things and preparing to go to lunch, Ms. Hurley engaged in behavior that disrupted the students’ learning environment. The evidence did not show that Ms. Hurley engaged in behavior that reduced her ability or her colleague’s ability to effectively perform duties. One might speculate as to whether Ms. Black’s ability to maintain control over her class in the future was undermined by Ms. Hurley’s aggressive intrusion, but Ms. Black did not testify that her ability to effectively perform was reduced and this was not otherwise shown. There was similarly no evidence offered to indicate that Ms. Hurley’s own effectiveness was reduced. Her actions were not taken in her own classroom, there was no evidence that she had any of Ms. Black’s students in her classes, or that her own students or the student body generally was even aware of her actions. The actions of Ms. Hurley on November 20, 2013, constitute misconduct in office. Her actions are just cause for suspension of her employment without pay. The School Board witnesses conceded that Ms. Hurley has never received “formal” counseling, and presented no documentary evidence that she had been counseled even informally. The School Board did present credible testimony from Principal Hope and Assistant Principal Campbell that Ms. Hurley had been informally counseled regarding raising her voice with students and for communication with her peers. The actions of Ms. Hurley on November 20, 2013, were not so serious as to justify a ten-day suspension, but do warrant suspension without pay for three calendar days.
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
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 Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a science teacher at Thomas Jefferson Middle School (“Thomas Jefferson”), a public school in Miami-Dade County, Florida, pursuant to a professional services contract. Respondent was initially hired by the School Board as a teacher in 1994. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade (“UTD”). Maria Fernandez, the principal of Thomas Jefferson, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year Principal Fernandez issued Respondent a letter of reprimand on February 8, 2011, concerning an alleged incident that occurred on January 4, 2011. The reprimand directed Respondent to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213; (2) cease and desist from engaging in any unprofessional conduct while serving as an employee of the School Board; (3) perform duties and responsibilities given to her by Principal Fernandez; and (4) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Principal Fernandez informed Respondent that failure to comply with the directives would result in further disciplinary action. On February 8, 2011, Principal Fernandez held a Conference for the Record (“CFR”) with Respondent regarding this alleged incident. The 2011-2012 School Year On November 11, 2011, Principal Fernandez called Respondent into her office to speak with her about the School Board’s policy regarding the appropriate use of e-mail. Respondent allegedly stormed out of the meeting and, in the process of doing so, called Principal Fernandez a “racist pig.” As she was leaving the office, two other administrators were in the vicinity, and Respondent allegedly stated: “I’m tired of dealing with you three pigs.” During a teacher-of-the-year faculty meeting in November 2011, Respondent allegedly called the assistant principal a “bully” and allegedly refused to leave the meeting after being directed to do so by the assistant principal. Principal Fernandez held another CFR with Respondent on November 29, 2011. Furthermore, Principal Fernandez issued Respondent another letter of reprimand on November 29, 2011, concerning these incidents, which again directed Respondent to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board rules 6Gx13-4A-1.21 and 6Gx13-4A- 1.213; (2) cease and desist from engaging in any unprofessional conduct while serving as an employee of the School Board; perform duties and responsibilities given to her by Principal Fernandez; and (4) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Principal Fernandez informed Respondent that failure to comply with the directives would result in further disciplinary action. On May 24, 2012, Principal Fernandez observed Respondent in another teacher’s homeroom class. Principal Fernandez allegedly told Respondent she should not be in the other teacher’s class because she was interrupting that teacher’s supervisory duties of her students. In response, Respondent allegedly yelled, in a very loud voice, and in front of the students and teacher: “That’s what the grievance is all about. Get some dopamine.” Respondent then allegedly pulled her cellphone out of her pocket and said, “Here, let me record this.” As a result of this incident, Principal Fernandez held another CFR with Respondent on June 4, 2012. During the conference, Respondent chose to leave the meeting and walked out of the principal’s office. An employee is expected to remain in a CFR for the duration of the meeting. Principal Fernandez issued Respondent another letter of reprimand on June 4, 2012, concerning this incident and for gross insubordination, which directed Respondent to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board Policy 3210 and 3210.01; (2) cease and desist from engaging in any unprofessional conduct while serving as an employee of the School Board; (3) perform duties and responsibilities given to her by Principal Fernandez; and (4) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Principal Fernandez informed Respondent that failure to comply with the directives would result in further disciplinary action. Because Respondent prematurely left the CFR, her UTD representatives signed the reprimand on her behalf. The 2012-2013 School Year On August 31, 2012, an Educational Excellence School Advisory Committee (“EESAC”) meeting was held in the media center at Thomas Jefferson. EESAC is an advisory committee comprised of parents, teachers, students, staff members, and business partners. The committee typically meets once a month at the school to review the school improvement plan and make decisions on how to improve the school. Respondent attended the meeting in her capacity as a representative of the UTD. During the meeting, Respondent told the chairperson that there was no quorum. Respondent then left the meeting. As she exited the meeting, Respondent stated: “This is why we’re an ETO school,” and she referred to the group as “fools.” A few minutes later, Respondent returned to the meeting, took the sign-out sheet with her without permission, and then left the meeting.1/ On September 20, 2012, Principal Fernandez met with the science department coach, Respondent, and two other science teachers to discuss ideas on how to improve the school. Principal Fernandez asked Respondent to share a document with the other teachers that Respondent said she had. Respondent became irate, refused Principal Fernandez’s request, and stated: “No, I’m not giving it to them. They can go to their own CRISS training like I did.” Respondent proceeded to stand up and threaten Principal Fernandez, stating: “Don’t worry, you’ll get yours.” Respondent then stormed out of the meeting. On September 20, 2012, Respondent sent an e-mail to MeShonika Green, another science teacher at Thomas Jefferson, regarding “Addressing your concerns.” In this e-mail, Respondent wrote: Ms. Green, Some of the members of the faculty have come to me to report that you were carrying on in the hall, claiming that you were in fear for your life because you thought I was going to come out and shoot up the school. I just wanted to put your fears to rest. Just because I speak my mind and am willing to stand up for what is right does not mean I will turn to physical violence. That is not me . . . I don’t believe in physical violence and have worked to promote that ideal. But from a psychological perspective it is the person that holds everything in that one day snaps and loses it. You know like tearing up a legal summons, throwing it in the face of a process server and becoming irate that they are arrested. I suppose that person could take it one step further and in what you said if the authorities did not intervene. But I only know what I’ve read in textbooks, I’ve never experienced it. But anyway I would appreciate if instead of you spreading this around the staff and faculty where students could hear you that you come and speak to me about any concerns you have with me, or at least talk to a therapist. Because your unsubstantiated remarks could be considered slander and as I am highly offended by your actions and they affect me professionally. If this were to happen again I would find it necessary to follow up through appropriate channels. Thank you in advance for understanding and acting accordingly [.] On September 24, 2012, Principal Fernandez met with Respondent to discuss the School Board’s e-mail policy, and Respondent’s inappropriate use of e-mails. At that time, Principal Fernandez provided Respondent with a memorandum regarding the appropriate use of e-mails. On September 27, 2012, Ms. Green sent Respondent an e-mail regarding “Addressing your concerns,” which states: “We are mature adults. You should not be listening to RUMORS or hear-say, especially when you see me almost everyday. This could be considered CYBER BULLYING. Thanks for your attention.” Shortly thereafter on September 27, 2012, Respondent responded to Ms. Green by e-mail as follows: Ms. Green, You are right chronologically we are two mature adults. This is in no way cyber bullying. This is me asking you to stop engaging in inappropriate behavior that slanders me, and me promising to take legal action if you don’t. So as a mature adult I am asking you to please stop and warning you of the consequences if you do not. Also there is no reason to yell (all caps), and it is not a rumor when three credible adults (as well as a number of less credible people) come to me at different times and state that they witnessed you doing this. Here say is when someone reports hearing that someone did something but did not see it. And yes I see you every day, and any attempt to communicate is met with negativity and usually ends in your saying “well you do what you want because I’m going to . . .” I hope this clears things up for you. Enjoy the rest of your day. On October 2, 2012, Respondent sent an e-mail to Mr. Yvetot Antoine, the science coach at Thomas Jefferson. As the science coach, Mr. Antoine assists all of the science teachers in implementing the science curriculum in their classrooms. The e-mail states: Mr. Antoine, Please stop sending me all these e-mails with attachments. I do not need my mailbox to go over its limit. I know you are just trying to do your job but as I already told you I already have my plan in place along with methods of assessment and analysis. I do not need to be bombarded with elementary solutions to a problem that you are only exasperating. The problem at TJ is that no one works together in the decision making process, decision are made that further divide the faculty and then they bring in people with little experience to cram their agenda down our throats. Most of us do what we need to and we do not need fixing. The fixing needs to start at the top and that is beyond both of our pay grades. If you need to send this stuff for your service log please use attachment manager. Mr. Antoine was offended and disheartened by this e-mail, because he did not believe that he was implementing elementary solutions or exacerbating a problem. Mr. Antoine forwarded the e-mail to Principal Fernandez. On October 11, 2012, Principal Fernandez met with Respondent to discuss the School Board’s e-mail policy, and Respondent’s inappropriate use of e-mails. At that time, Principal Fernandez provided Respondent with another memorandum regarding the appropriate use of e-mails. On October 18, 2012, Mr. Antoine entered Respondent’s classroom to conduct an informal observation. As the students entered the classroom, Mr. Antoine proceeded to the back of the room. Respondent appeared very serious and disturbed by Mr. Antoine’s presence in the classroom. As the students settled into their seats, Respondent asked the students to raise their hands if they felt that Mr. Antoine’s presence in the classroom was disturbing. In response, some of the students raised their hands. Shortly thereafter, Respondent asked the students again to raise their hands if they felt Mr. Antoine’s presence in the classroom was disturbing. In response, most of the students raised their hands. At this point, Respondent announced to the class that “she would not share her classroom in an oppressive environment where she feels like her civil rights were being violated.” By this time, Mr. Antoine was sitting at a table in the back of the classroom, and he had not said anything to Respondent. Respondent paced up and down the classroom and instructed the students to write definitions for six vocabulary words that were posted on the board. As she paced up and down the classroom, Respondent pulled out her cellphone and tried unsuccessfully to call someone. Respondent then returned to her seat and announced to the students that she has over 20 years of experience and that “I was teaching when this guy [Mr. Antoine] was still in high school.” At this point, the only instruction Respondent had given her students was to tell them to define six vocabulary words. As the class period progressed, Respondent did not give any further educational instruction to her students. Instead, Respondent proceeded to the back of the classroom where Mr. Antoine was sitting, pulled up a chair, and sat directly across from him. Respondent looked directly at Mr. Antoine and stated in front of the students: “I’m going to stare at those eyes that are observing me.” After a while, Respondent got up, went back to her desk, and was at her computer. Toward the end of the class period, Respondent handed a stack of papers to one of her students. The student walked to the back of the classroom and gave the stack of papers to Mr. Antoine. The papers were titled, ”Responsibilities of the Coach-Instructional Coach.”2/ As a result of these incidents from August through October 2012, Principal Fernandez held another CFR with Respondent at some point in October 2012. On November 7, 2012, Respondent encountered Eulalee Sleight, another teacher at Thomas Jefferson. On that date, Ms. Sleight was meeting with a student when Respondent commented, in front of the student, “Do you know I’m not going to be your teacher anymore?” “Because I’m making sure they follow rules. They don’t like to follow rules at this school.” At the end of this same school day, Respondent walked up to Ms. Sleight and took a picture of her and a student who was Ms. Sleight’s assistant. In the presence of the other student, Respondent stated: “This is to show the illegal things that’s happening at the school.”3/ On November 8, 2012, Respondent encountered Thomas Jefferson School Counselor Luis Chiles at Mr. Chiles’s office. On this occasion, Mr. Chiles was in a meeting with an ESOL (English speakers of other languages) teacher, conducting a review of students. Respondent had no business being in the meeting. Nevertheless, Respondent opened the door to Mr. Chiles’s office and stepped inside Mr. Chiles’s office. Respondent was agitated, very upset, and told Mr. Chiles that she hoped he was happy that she was going to lose her job. Mr. Chiles was dumbfounded and did not respond to Respondent’s comment. Respondent then exited the office. As a result of all the foregoing incidents, Principal Fernandez recommended to the School Board that Respondent’s employment be terminated. Thereafter, the School Board recommended that Respondent’s employment be suspended pending dismissal. The evidence at hearing failed to show that Respondent’s conduct on June 4, 2012, constitutes misconduct in office, gross insubordination, or a violation of applicable School Board policies. The School Board merely showed that Respondent chose to leave the CFR with Principal Fernandez, and that she was expected to stay for the duration of the meeting. Respondent’s conduct may have been inappropriate, but the School Board failed to show that the conduct violated School Board policies, and was “so serious as to impair the [Respondent’s] effectiveness in the school system,” so as to constitute misconduct in office. Furthermore, the School Board failed to show that Respondent’s conduct involved “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority,” so as to rise to the level of gross insubordination. The evidence at hearing failed to show that Respondent’s conduct at the EESAC meeting on August 31, 2012, constitutes misconduct in office, gross insubordination, or a violation of applicable School Board policies. Respondent attended the meeting in her capacity as a representative of UTD. Although Respondent may have been rude during the meeting, given the context in which this incident occurred (this was an EESAC meeting--not a classroom situation involving students), the School Board failed to establish that Respondent engaged in conduct which rose to the level of misconduct in office, gross insubordination, or a violation of School Board policies. The evidence at hearing showed that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2), and that she violated School Board Policies 3210 and 3210.01. Respondent engaged in conduct which is unseemly in the workplace and reduces a teacher’s or her colleagues’ ability to effectively perform duties when she met with Principal Fernandez, the science department coach, and two other science teachers on September 20, 2012, to discuss ideas on how to improve the school. When asked by Principal Fernandez to share a document with the other teachers, Respondent became irate and refused to do so. Respondent also violated this rule and School Board Policies 3210, 3210.01, and 3380, when she stood up during the meeting and threatened Principal Fernandez, stating: “Don’t worry, you’ll get yours,” and stormed out of the meeting. Such conduct created a hostile, intimidating, abusive, offensive, or oppressive environment, and involved threatening behavior consisting of words that intimidated Principal Fernandez. The evidence at hearing failed to show that Respondent’s conduct on September 20, 2012, constitutes gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. The evidence at hearing failed to show that Respondent’s e-mails to Ms. Green on September 20 and 27, 2012, and Respondent’s e-mail to Mr. Antoine on October 2, 2012, constitute misconduct in office, gross insubordination, or a violation of applicable School Board policies. The School Board failed to present its e-mail policy at the hearing. Given the context and nature of the emails (between adults and not involving students), and the fact that the School Board failed to present its e-mail policy at the hearing, the School Board failed to meet its burden to establish that the e-mails rose to the level of misconduct in office, gross insubordination, or constitute a violation of applicable School Board policies. The evidence at hearing showed that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2), and that she violated rules 6B-1.006(3)(a), (f), (5)(d), and School Board Policies 3210 and 3210.01, by engaging in conduct which is unseemly in the workplace and disruptive to the students’ learning environment; failed to make reasonable effort to protect students from conditions harmful to learning; violated the students’ legal right to an education; engaged in behavior that reduces her ability or her colleagues’ ability to effectively perform duties or the orderly processes of education; and created a hostile, intimidating, abusive, offensive, or oppressive work environment. Respondent violated these rules and policies when she: 1) asked students in the classroom on October 18, 2012, if they felt that Mr. Antoine’s presence in the classroom was disturbing, they should raise their hands; 2) announced to the students in the classroom that “she would not share her classroom in an oppressive environment where she feels like her civil rights were being violated”; 3) paced up and down the classroom and placed a personal telephone call during class while only instructing the students to write definitions for six vocabulary words that were posted on the board; 4) announced to her students that she has over 20 years of experience, and that “I was teaching when this guy [Mr. Antoine] was still in high school”; 5) proceeded to the back of the classroom, sat across from Mr. Antoine, and announced to the class: “I’m going to stare at those eyes that are observing me”; and 6) handed a stack of papers to one of her students titled, “Responsibilities of the Coach–Instructional Coach,” and had the student hand the stack of documents to Mr. Antoine. Respondent’s conduct on October 18, 2012, sought to advance her personal agenda, was not conducive to her students’ learning, and was harmful to the students’ learning. Respondent effectively used the students in her classroom as pawns in her personal battle against the administration and her colleagues. Rather than focusing on Mr. Antoine’s presence and her personal battle, Respondent should have focused on the students and teaching the students. Respondent’s conduct on October 18, 2012, has no place in a middle school science classroom. The evidence failed to show that Respondent’s conduct on October 18, 2012, rose to the level of gross insubordination in violation of rule 6A-5.056(4), in that the conduct did not involve the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. The evidence at hearing showed that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2), and that she violated rules 6B-1.006(3)(a), (f), and (5)(d), and School Board Policies 3210 and 3210.01, by engaging in conduct which is unseemly in the workplace and disruptive to the students’ learning environment; failed to make reasonable effort to protect students from conditions harmful to learning; violated the students’ legal right to an education; engaged in behavior that reduces her ability or her colleagues’ ability to effectively perform duties or the orderly processes of education; and created a hostile, intimidating, abusive, offensive, or oppressive work environment. Respondent violated these rules and policies when she: 1) interrupted a meeting between Ms. Sleight and another student on November 7, 2012; 2) told the student “Do you know I’m not going to be your teacher anymore?” “Because I’m making sure they follow rules. They don’t like to follow rules at this school”; and 3) took a picture of a student who was Ms. Sleight’s assistant and stated: “This is to show the illegal things that’s happening at the school.” Through her conduct on November 7, 2012, Respondent again sought to advance her personal agenda, failed to engage in conduct conducive to the student’s learning, and engaged in conduct harmful to the students’ learning. Respondent effectively used the students as her pawns in her personal battle against the administration and her colleagues. Raising a legitimate complaint through the proper channels is one thing. However, a middle school teacher cannot use students as her pawns and air her personal battles to students in an effort to advance her personal agenda.4/ The evidence failed to show that Respondent’s conduct on November 7, 2012, rose to the level of gross insubordination in violation of rule 6A-5.056(4), in that the conduct did not involve the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. The evidence at hearing failed to show that Respondent’s encounter with Mr. Chiles on November 8, 2012, constitutes misconduct in office, gross insubordination, or a violation of applicable School Board policies. The evidence presented at hearing did not establish that Respondent knew Mr. Chiles was in a meeting when she opened the door. It would have been polite for Respondent to knock first. Nevertheless, merely opening a door that is not locked, and telling a colleague that she “hoped he was happy that she was going to lose her job,” and then turning around and leaving, does not rise to the level of misconduct in office, gross insubordination, or a violation of School Board policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order upholding the suspension and terminating Respondent’s employment. DONE AND ENTERED this 29th day of July, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2014.
The Issue Does Petitioner, Lee County School Board (School Board), have just cause to terminate the employment of Respondent, Adrian Allen?
Findings Of Fact The School Board owns and operates the public schools in Lee County, Florida. It is responsible for hiring, terminating, and overseeing all employees in the School District. At all times material to this case, the School Board employed Mr. Allen as a custodian at Lehigh Acres Middle School. He has worked for the School District since April 29, 2010. Mr. Allen is a member of the Support Personnel Association of Lee County (SPALC) and was a member during all times relevant to this matter. On October 15, 2014, the Lee County Sheriff's Office arrested Mr. Allen for one count of child abuse. The alleged victim is Mr. Allen's two-year-old son. Eventually the state attorney chose not to prosecute Mr. Allen. On October 10, 2014, Mr. Allen took the actions that led to his arrest. The same actions are the cause for his proposed dismissal. The morning of October 10, 2014, Mr. Allen was caring for his two-year-old son at home. Mr. Allen was hung over and irritable. He fed his son and watched cartoons with him. Mr. Allen and his wife were "potty" training the child. Sometime after lunch, in the early afternoon, the child defecated in his pull-ups, instead of telling Mr. Allen that he needed to use the bathroom. Mr. Allen lost his temper. He began "spanking" the small child. He struck the child at least ten times. Three or four of the blows were to the child's face and not "spanking" as normally understood. The others were to the child's buttocks and thighs. The blows bruised the child severely enough that they were visible four days later. Mr. Allen was immediately remorseful. Because he was upset and hung over, Mr. Allen called in sick to work, which started later that afternoon. When Mr. Allen's wife came home, he told her what he had done, and she observed the bruises. She took photographs of the bruises and made Mr. Allen leave the house. The photographs were not offered into evidence. After a few days, Mr. Allen and his wife talked, and she allowed him to return after he promised to change his behavior, including drinking and losing his temper. The bruises were discovered on October 14, 2014, when Mr. Allen left his child with the maternal grandparents. They called law enforcement. This led to a criminal investigation and Mr. Allen's arrest. During all his conversations with law enforcement officers, Mr. Allen was honest and remorseful. People outside the family, the school, and law enforcement became aware of the incident. Mr. Allen and his wife began receiving critical messages about it. When the School District learned of the charges, it began an investigation. In interviews with Andrew Brown, director of Professional Standards and Equity, Mr. Allen spoke truthfully and admitted what he had done. The School District determined that there was probable cause for disciplinary action. On November 21, 2014, it suspended Mr. Allen without pay and benefits. The Petition for Termination and this proceeding followed. Mr. Allen has never denied his actions. He did not testify about his remorse, the circumstances surrounding the event, or steps he has taken to prevent similar events. Mr. Allen provided a letter from SalusCare stating that he was enrolled in the Family Intensive Treatment Team. The letter says the program addresses substance abuse, mental health, and other concerns. It said Mr. Allen was making progress in his treatment plans. The letter is hearsay and cannot be the basis of a finding of fact. There is no testimony or other non-hearsay evidence to corroborate it. Consequently, it is not considered. § 120.57(1)(c), Fla. Stat. (2014).1/ Similarly, Mr. Allen provided a Character Witness Reference form with positive statements about him from nine people. Its statements, too, are uncorroborated hearsay and will not be considered. § 120.57(1)(c), Fla. Stat. Mr. Allen physically abused his small child. He has provided no evidence to support mitigation of discipline, other than a stipulated absence of discipline during his career with the School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding just cause to terminate the employment of Adrian Allen and dismissing him from his position with the Lee County School District. DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2015.
