The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
Findings Of Fact Clifton Dukes, Jr., was a student at Parkway Junior High School during the 1982-83 school year and the 1984-85 school year until his reassignment to the alternative school on February 11, 1985. During his attendance at Parkway, Dukes was involved in numerous incidents of misconduct. During the 1982-1983 school year he was involved in seven incidents involving profanity, rudeness, defiance to a teacher, class disruption, skipping class, refusing to participate in Physical Education, and sexual harassment of a student. On March 10, 1983, Dukes was sent to an alternative school placement at Jan Mann Opportunity School. Dukes was returned to the regular school program for the 1984-85 school year. On September 20, 1984, Dukes was involved in the suspected smoking of a mood modifier and received a five- day suspension. On October 26, 1984, he was involved in a fight and received a three-day suspension. On November 13, 1984, Dukes threatened a teacher and received a three-day suspension. Finally, on January 15, 1985, Dukes was found in possession of a mood modifier and was placed on a ten-day suspension. Following the last incident, he was reassigned to the alternative school.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Clifton Dukes, Jr. to the alternative school program at Miami Douglas MacArthur Senior High School- North. DONE and ENTERED this 6th day of August, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1985. COPIES FURNISHED: Mr. & Mrs. Clifton Dukes, Sr. 3511 N. W. 176th Street Opa Locka, Florida 33056 Jesse J. McCrary, Jr., Esquire Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ms. Maeva Hipps Clerk of the School Board of Dade County Board of Administration Building 1450 N. E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 ================================================================ =
Findings Of Fact Joseph Cabaleiro was a student at Shenandoah Junior High School during the 1983-84 and 1984-85 school years until his assignment to the alternative school. During his attendance at Shenandoah, Cabaleiro was involved in numerous instances of misbehavior that required disciplinary action. During the 1983-84 school year, Cabaleiro was suspended for fighting on October 19, 1983, and for being continually disruptive in class on May 11, 1984. On December 13, 1984, Cabaleiro received a warning for being at an off-limits area during lunch. On January 17, 1985, he was disciplined for constant disruptive conduct in the classroom. He was given a three-day outdoor suspension for fighting on February 8, 1985, and a ten-day outdoor suspension for assault and battery on a teacher on February 20, 1985. This February 20, 1985, incident merits some discussion. An altercation occurred between Mr. Long, a P. E. teacher, and Cabaleiro. During the incident Cabaleiro cursed Mr. Long and Mr. Long allegedly threw a ball at Cabaleiro more than once. Cabaleiro then threw a set of wooden starting blocks at Mr. Long and went to the office to report that Mr. Long injured him with the ball. Cabaleiro alleges that he threw the wooden blocks to protect himself; but the evidence fails to support the need for such action in self defense. Cabaleiro left the playing field and went to the office without any attempt by Long to stop him. He could have left as easily before throwing the blocks. Throwing the blocks was not an act of self defense. On March 28, 1985, Cabaleiro was again suspended for general disruptive behavior. Finally on April 17, 1985, he was suspended for ten days for fighting. That same day he was reported for vandalism when a student saw him placing a piece of glass under the tire of Mr. Long's car. On April 18, 1985, Cabaleiro was recommended for assignment to the opportunity school. Academically, Cabaleiro has not been successful. His final grades for the 1983-84 school year were three F's and two D's with unsatisfactory grades in all classes for conduct and ratings of insufficient in effort for all classes. For the 1984-85 school year, Cabaleiro received F's in all classes academically, F's in all class for conduct, and 3's (insufficient) grades in all classes for effort. Additionally, from September 4, 1984 to March 5, 1985, Cabaleiro missed 41 days of school, with 13 of those days being outdoor suspensions and 28 of those days being absences.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Joseph Cabaleiro to the alternative school program at Youth Opportunity School-South. DONE and ENTERED this 26th of September, 1985, in Tallahassee; Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Mr. Joseph Cabaleiro 3000 N.W. 16th Street Miami, FL 33125 Frank R. Harder; Esq. Suite 100, Twin Oaks Building 2780 Galloway Road Miami, FL 33132 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner and dated March 28, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida educator's certificates for violations of Section 231.2615, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Section 231.2615(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.2615(1), Florida Statutes. Mr. Colebrook holds Florida Educator's Certificate No. 296141. At the times material to these proceedings, Mr. Colebrook was employed as a teacher by the St. Lucie County public school system. Incident of December 21, 1988, and January 6, 1989, letter of reprimand. During the 1988-1989 school year, Mr. Colebrook was employed as a coach and physical education teacher at Fort Pierce Central High School. In a letter of reprimand dated January 6, 1989, then-principal James Sullivan admonished Mr. Colebrook for using profane language in a conversation with an assistant principal, Wayne Gent, outside the school cafeteria, and he noted in the letter that this conduct was a violation of school board policy. Mr. Sullivan did not personally observe the incident involving Mr. Colebrook and Mr. Gent, and his account of the incident was based on information provided to him by Mr. Gent.2 Mr. Sullivan stated in the letter that the December 21, 1988, incident was "not the first time [Mr. Colebrook] had used profane language in the workplace,"3 and, in his testimony at the hearing, Mr. Sullivan inferred from this statement that "there would have been other instances where that had occurred."4 Mr. Sullivan could not, however, recall during his testimony any specific incidents in which Mr. Colebrook had used profanity or any discussions he might have had with Mr. Colebrook regarding such an incident. The incident referred to in the letter of reprimand occurred on December 21, 1988, when Mr. Colebrook engaged Mr. Gent in a conversation about the athletic budget. Mr. Colebrook was upset about the budget, and he may have used profanity during the conversation,5 which lasted a couple of minutes. In his testimony, Mr. Gent declined to describe Mr. Colebrook as "irate" during the encounter. The conversation took place in the corridor outside the school cafeteria during a time when students were changing class, so that there could have been students in the area when the conversation took place. As noted above, the Commissioner charged Mr. Colebrook in paragraph 3 of the Administrative Complaint as follows: "In 1989, Respondent received a letter of reprimand from his Principal for allegedly using profane language outside of the high school's cafeteria. The profane language was directed toward an Assistant Principal and could be overheard by students." It is uncontroverted that Mr. Colebrook received a written reprimand that was placed in his personnel file. The factual allegations in paragraph 3 of the Administrative Complaint, liberally construed, are sufficient to allege not only that Mr. Colebrook received a written reprimand but also that he committed the acts attributed to him in the letter. However, the evidence submitted by the Commissioner is not sufficient to establish clearly and convincingly that Mr. Colebrook actually used profanity or was irate during the conversation with Mr. Gent in December 1988. Mr. Sullivan's knowledge of the incident was second-hand, based solely on information received from Mr. Gent,6 and Mr. Gent's recollection at the hearing that Mr. Colebrook "may have" used profanity during the conversation does not rise to the level of clear and convincing proof. Furthermore, Mr. Gent's testimony describing Mr. Colebrook as "upset" during the conversation contradicts the description in the letter that he was "irate." Incident of March 14, 1990, and March 22, 1990, letter of reprimand. During the 1989-1990 school year, Mr. Colebrook was employed as a coach and physical education teacher at Fort Pierce Central High School. In a letter of reprimand dated March 22, 1990, then-principal James Sullivan notified Mr. Colebrook that an investigation had been conducted by Robert Hiple, an assistant principal at Fort Pierce Central High School, into events that allegedly occurred in Mr. Colebrook's classroom on March 14, 1990. In the letter, Mr. Sullivan reported the results of Mr. Hiple's investigation and relied on Mr. Hiple's conclusion, based exclusively on interviews with students, that Mr. Colebrook had used "profane language in [his] second period class on March 14, 1990."7 According to Mr. Sullivan, Mr. Hiple reported that "a consensus of the students" said that Mr. Colebrook said "'I'm not going to put up with this fucking shit, I'll beat your Mother-fucking ass.'"8 Mr. Sullivan also referred in the letter to information provided by Mr. Hiple that one of the students in Mr. Colebrook's class told Mr. Hiple that she was afraid to admit to Mr. Colebrook that she had accidentally flipped an object in class "after seeing [his] reaction and hearing [his] comments."9 The investigation to which Mr. Sullivan referred in his March 22, 1990, letter was initiated on March 15, 1990, when Mr. Hiple reported to Mr. Sullivan that a parent had complained that Mr. Colebrook had used profanity and threatened a student in the classroom. Mr. Sullivan asked Mr. Hiple to investigate the incident, and Mr. Hiple began by asking Mr. Colebrook for his version of the incident. Mr. Colebrook admitted that there had been an incident but denied using profanity or threatening a student or students, although he admitted that he may have said that "he was going to kick somebody's butt and he challenged a student and yelled at them."10 Mr. Hiple proceeded to gather information about the incident by interviewing students who had been in Mr. Colebrook's classroom at the time of the incident, and his testimony at the hearing was consistent with the information attributed to him by Mr. Sullivan in the letter of reprimand. Mr. Hiple did not testify from his personal knowledge of the incident. On or about March 16, 1990, Mr. Colebrook approached Mr. Hiple and asked about the investigation. Mr. Hiple advised him that Mr. Sullivan would discuss the results of the investigation with him. Mr. Colebrook became "a little loud and aggressive" during this encounter and stated that he did not want to discuss the matter with Mr. Sullivan.11 Mr. Colebrook did not "threaten [Mr. Hiple] physically or even verbally, but he was obviously upset and became loud in an open environment where students could hear."12 In the March 22, 1990, letter, Mr. Sullivan referred to the written reprimand issued to Mr. Colebrook in January 1989 for the use of profanity in the workplace, and he advised Mr. Colebrook that he was recommending to the school superintendent that he be suspended without pay for five working days and administratively transferred to another school for the 1990-91 school year. Mr. Sullivan based the recommendation that Mr. Colebrook be transferred to another school on Mr. Colebrook's comment to Mr. Hiple that Mr. Colebrook did not want to talk with Mr. Sullivan about the results of Mr. Hiple's investigation into the March 14, 1990, incident. In Mr. Sullivan's view, "it creates a difficult working relationship if a principal has a staff person who refuses to sit down and talk with him."13 Mr. Colebrook was suspended without pay for three days, but it was not clear from the record whether he was transferred for the 1990-1991 school year, as requested by Mr. Sullivan. As noted above in the Preliminary Statement, the Commissioner charged Mr. Colebrook in paragraph 4 of the Administrative Complaint as follows: On or about March 22, 1990, Respondent received a letter of reprimand while employed at Fort Pierce Central High School, for allegedly using profane and inappropriate language in class with his students. It was recommended that Respondent be suspended without pay for five days and transferred to another school. The suspension was reduced from five days to three days and Respondent was transferred to Woodland[s] Academy, in the St. Lucie County School District. It is uncontroverted that Mr. Colebrook received a written reprimand based on the conduct alleged in the March 22, 1990, letter from Mr. Sullivan and that Mr. Sullivan recommended in the letter that Mr. Colebrook be suspended without pay and transferred to another school. Giving the allegations in paragraph 4 of the Administrative Complaint the most expansive construction possible, they are sufficient to allege that Mr. Colebrook used "profane language in [his] second period class on March 14, 1990," as recited in the March 22, 1990, letter. However, the evidence presented by the Commissioner is not sufficient to establish clearly and convincingly that Mr. Colebrook actually used profane language as related by Mr. Hiple in his testimony and by Mr. Sullivan in the letter of reprimand. Not only was Mr. Sullivan's knowledge of the incident second-hand, based solely on information received from Mr. Hiple, Mr. Hiple's knowledge of the incident was also second-hand, based solely on information provided to Mr. Hiple during interviews with some of the students in Mr. Colebrook's classroom on the day in question.14 The evidence presented by the Commissioner is, however, sufficient to support a finding that Mr. Colebrook used inappropriate language in front of the students of his second- period class on March 14, 1990, when he said "he was going to kick somebody's butt" and yelled at the students in his class.15 Mr. Colebrook's use of this language in front of students, while inappropriate, did not constitute gross immorality or involve moral turpitude, but it can be inferred from this conduct that Mr. Colebrook's effectiveness as a teacher was seriously reduced in 1990, when the incident took place, at least with respect to his effectiveness in teaching the students in the classroom at the time of his outburst. Because the Commissioner presented no evidence to establish that Mr. Colebrook directed his comment or his yelling to any particular student, the Commissioner has failed to establish that Mr. Colebrook embarrassed or disparaged any student during the incident of March 14, 1990. The evidence is, however, sufficient to establish that Mr. Colebrook's statement to his students that he was going to "kick somebody's butt" and his yelling at the students created a condition in the classroom harmful to the students' learning. Incident of May 8, 2000, Mr. Colebrook's use of profanity, and September 25, 2000, letter of reprimand. Mr. Colebrook was transferred to Woodlands Academy from Fort Pierce Central High School in either 1990 or 1991. During the 1999-2000 school year, Mr. Colebrook taught physical education at Woodlands Academy. In the afternoon of May 8, 2000, Mr. Colebrook was teaching a combined special education class and eighth grade class consisting of approximately 50 students. Toward the end of the class period, a student in the classroom spoke up and said to Mr. Colebrook: "You're a drunk son of a bitch."16 Mr. Colebrook thought it was the student T.S., and he told him to come to the front of the classroom, where Mr. Colebrook apparently intended to discipline him. T.S. did not obey Mr. Colebrook but, rather, slipped out of the classroom door. Mr. Colebrook did not leave the classroom to go after T.S., but he sent a student into the hall to bring him back into the classroom; the student reported that T.S. was not in the hall. About five or six minutes before the end of the class period, T.S. showed up in the office of Lee Haynes, Dean of Students at Woodlands Academy. T.S. told Mr. Haynes that Mr. Colebrook had sent him to the office. Since classes would change in a few minutes, Mr. Haynes decided to keep T.S. in his office until the bell rang, when he would send T.S. to his next class. Mr. Haynes and T.S. sat at Mr. Haynes' desk and talked.17 Just before time for the bell to ring, Mr. Colebrook walked into Mr. Haynes office. When T.S. saw Mr. Colebrook, he stood up and started moving away from him, around Mr. Haynes' desk. Mr. Colebrook moved toward T.S., placed his right hand on T.S.'s shoulder, asked why T.S. had called him a drunk in class, and gave T.S. a shove with the hand on T.S.'s shoulder. The shove was not hard enough to knock T.S. off balance, but, as a result of the shove and of T.S.'s simultaneous movement away from Mr. Colebrook, T.S. "tangled his feet"18 and fell down.19 Mr. Haynes noticed that there were two chairs in the area where T.S. fell, and he assumed that the chairs may have "aided [T.S.'s] fall."20 As Mr. Haynes helped T.S. get back on his feet, Mr. Colebrook made a motion toward T.S., and Mr. Haynes stood between Mr. Colebrook and T.S. Mr. Haynes then took T.S. to the principal's office, where Johnny Thornton, the principal of Woodlands Academy at the time, talked with T.S. T.S. was not injured as a result of the fall, but Mr. Thornton described him as "visibly upset, crying."21 Joseph Hover, a deputy with the St. Lucie County Sheriff's Office who was serving as a school resource officer at Woodlands Academy in May 2000, was a witness to the incident, and he arrested Mr. Colebrook on the afternoon of the incident for misdemeanor battery.22 The criminal case against Mr. Colebrook was concluded on August 21, 2000, when an entry was recorded on the court's progress docket that no information would be filed with respect to the charges against Mr. Colebrook. Several local newspapers printed stories about the incident and about Mr. Colebrook's arrest. Both students and teachers at Woodlands Academy had access to these newspapers, and some of the students at Woodlands Academy were observed actually reading the articles about Mr. Colebrook. In Mr. Thornton's estimation, other teachers at Woodlands Academy were aware of the incident, although Mr. Thornton tried to avoid discussing the incident with either the teachers or the students at Woodlands Academy. In a letter dated May 10, 2000, Mr. Colebrook was advised that an investigation into the May 8, 2000, incident would be conducted by the school system and that he was suspended with pay pending the outcome of the investigation. The final investigative report, dated September 7, 2000, was apparently submitted to the superintendent of schools for St. Lucie County, William Vogel, who prepared a formal letter of reprimand dated September 25, 2000.23 In the letter, Mr. Vogel identified two bases for the reprimand: "The act of pushing or throwing a student to the floor" and "[t]he use of profanity in the presence of students." Mr. Vogel did not identify the source of the information on which he based these charges, although it is inferred that the charges are derived from the investigative report. Mr. Vogel advised Mr. Colebrook in the letter that he would be suspended without pay for five days, that he would be required to complete "coursework in classroom management, stress control or other similar formal training/workshop," and that the complaint would be sent to the state Department of Education.24 After the May 8, 2000, incident, Mr. Colebrook was given an alternate assignment, and he returned to teach at Woodlands Academy in August or early September 2000 for the 2000-01 school year. Mr. Thornton was concerned when Mr. Colebrook returned to Woodlands Academy that some of his effectiveness as a teacher would be undermined by the students' knowledge of the May 8, 2000, incident, but there was no direct evidence that this was indeed the case. As noted above in the Preliminary Statement, the Commissioner charged Mr. Colebrook in paragraph 5 of the Administrative Complaint as follows: On multiple occasions while employed at Woodland[s] Academy, Respondent made inappropriate contact with a student in a violent and threatening manner, and continued to use profane and inappropriate language in front of his students. On May 8, 2000, Respondent threatened a minor student, T.S., pursued the student out of his classroom, and into the office of the Dean of Students at Woodland[s] Academy. In front of Lee Haines [sic], the Dean of Students at Woodland[s] Academy, and Deputy Joe Hover, the School Resource Officer, Respondent physically assaulted the minor student, T.S., by grabbing the student and throwing the student over two chairs, and onto the floor. Respondent then commented to Deputy Hover "This may cost me my job, but no student is going to call me drunk." Respondent was arrested and charged with battery as a result of the incident. The Commissioner has failed to present sufficient evidence to establish the allegations in paragraph 5 of the Administrative Complaint.25 Rather, the evidence presented by the Commissioner is sufficient only to establish clearly and convincingly (1) that, on May 8, 2000, Mr. Colebrook put his hand on T.S.'s shoulder and shoved him and that, as a result of this shove and of T.S.'s movement away from Mr. Colebrook, T.S. fell over two metal chairs in Mr. Haynes' office and (2) that Mr. Colebrook was arrested and charged with battery as a result of the incident. The evidence presented by the Commissioner is not sufficient to demonstrate that Mr. Colebrook's approaching T.S., placing his hand on T.S.'s shoulder, shoving T.S., and, at least in part, causing T.S. to stumble and fall over two chairs constituted gross immorality or involved moral turpitude. However, Mr. Colebrook's actions were harmful to T.S.'s mental health and safety even though T.S. suffered no physical injury. In addition, because he was upset and crying, Mr. Colebrook's actions exposed T.S. to embarrassment in front of Mr. Colebrook, Mr. Haynes, Deputy Hover, and Mr. Thornton. Accordingly, the evidence presented by the Commissioner is sufficient to establish that Mr. Colebrook violated two provisions of the Principles of Professional Conduct for the Education Profession in Florida. Finally, the appearance of news stories about Mr. Colebrook's arrest in the local press can reasonably support the inference that the students and teachers and the community in general were aware of the accusations against Mr. Colebrook with respect to the incident involving T.S. and of Mr. Colebrook's arrest. The Commissioner did not, however, present any direct evidence to establish that Mr. Colebrook's effectiveness as an employee of the St. Lucie County School Board was seriously reduced as a result of the publicity, and such an inference cannot reasonably be drawn, especially since no information was filed against Mr. Colebrook. Mr. Colebrook's shoving T.S., though inexcusable, was not such egregious conduct that it would, of itself, give rise to an inference that his effectiveness as an employee of the St. Lucie County School Board was seriously reduced. In addition, in light of the fact that the Superintendent of Schools for St. Lucie County did not think it appropriate to remove Mr. Colebrook from the classroom, the Commissioner has failed to establish clearly and convincingly that Mr. Colebrook's effectiveness as an employee of the St. Lucie County School Board was seriously reduced as a result of the May 8, 2000, incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Oringen E. Colebrook guilty of violating Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, and Section 231.2651(1)(i), Florida Statutes; dismissing Count I of the Administrative Complaint; and, placing Mr. Colebrook on probation for a period of three years, subject to such reasonable conditions as the Education Practices Commission deems appropriate. DONE AND ENTERED this 1st day of March, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 1st day of March, 2002.
Findings Of Fact Allan Bonilla, currently principal of Rivera Junior High School, was one of at least two assistant principals who attempted to work with Javier Manuel Cepero during the 19841985 regular school year. He has been employed four years at that facility. Mr. Bonilla is personally familiar with Javier and took part in the administrative placement of Javier in an alternative program. The basis for this alternative placement was both Javier's academic needs and his disruptive behavior. Javier was suspended for five days outdoors in October 1984 for vandalism. Javier was repeating the 7th grade at Rivera Junior High School in the 19841985 school year and evidenced disruptive behavior in most classroom situations. This disruptive behavior was observed primarily in instances of direct defiance of teacher authority, tardy arrivals which disrupted classwork continuity, and talking out at the wrong time in class. As a result of these types of disruptive behavior, Javier was assigned short indoor suspensions during the months of October and November 1984. In January 1985, Javier disrupted his math class by flatly refusing to work and requested indoor suspension. Mr. Bonilla called the parents in connection with most of these suspensions, which were resulting in poor or failing grades for Javier by January 1985. Mr. Cepero came to the school to discuss Javier's problems on one occasion and the then principal called Mrs. Cepero on another occasion. He was made aware of some family problems contributing to behavior problems. Mr. Bonilla recommended the alternative school placement in January 1985, feeling that a small class with individualized attention would be an effective approach toward correcting Javier's academic problems as well as his disruptive behavior. Mr. Bonilla hoped a new school would get rid of Javier's growing bad reputation. He has received no notice concerning results of the customary annual review of Javier's placement due to be conducted some time before start of the 19851986 school year.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order continuing the alternative placement of Javier Manuel Cepero at Youth Opportunity School until such time as an annual or other evaluation indicates other appropriate assignment. DONE AND ENTERED the 28th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 4889675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1985. COPIES FURNISHED: Mark A. Valentine, Esquire Assistant Board Attorney 3050 Biscayne Boulevard Suite 800 Miami, Florid 33137 Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Mr. Javler Cepero 6031 S. W. 109th Court Miami, Florida 33173 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N. E. Second Avenue Miami, Florida 33132
The Issue The issues are whether Respondent failed to accommodate exceptional education students, directed derogatory comments to students, and disclosed test grades in class in violation of Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, whether the proposed penalty is reasonable. (Statutory references are to Florida Statutes (2000). References to rules are to rules promulgated in the Florida Administrative Code in 2000.)
Findings Of Fact Respondent is authorized to teach physical education in Florida pursuant to Florida Educator's Certificate Number 666407. The Certificate is valid through June 30, 2007. The Pinellas County School District (the District) employed Respondent as a physical education teacher at Gibbs High School (Gibbs) during the 2000-2001 school year (the school year). Respondent's students included students in the exceptional student education program at Gibbs (ESE students). Faculty and staff at Gibbs had tested ESE students in Respondent's classes, identified them as disabled, developed an individual education plan (IEP) for each student, and placed each student in a special education program. The IEPs for some students allowed the students to leave the classroom during testing for a learning lab or other supervised environment. Respondent refused to allow several ESE students to leave the classroom during testing. The students are identified in the record as A.A., A.S., J.T., and J.F. in order to protect their confidentiality. Respondent sometimes afforded ESE students an opportunity to hear their tests read to them at the front of the class. That opportunity violated each student's IEP. Respondent did not have discretion to deviate from an IEP. Some ESE students transferred from Respondent's class. Other ESE students refused to enroll in Respondent's class because of Respondent's reputation among ESE students for refusing to accommodate ESE students during testing. A number of parents complained to school officials about Respondent's failure to accommodate ESE students. Faculty and staff attempted to correct Respondent's behavior through informal conferences. A varying exceptionalities specialist, a teacher assistant, and an administrator with the Office of Professional Standards (OPS) each met with Respondent. Respondent answered an allegation and complaint from one parent by stating to a Gibbs administrator that the student was not an honor roll student, so Respondent's refusal to accommodate the student did not make a difference. Respondent complained to an assistant principal at Gibbs that, "They are ESE students. What are they doing here [in Respondent's class]? They shouldn't be here anyway." Respondent made derogatory comments to students during the school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy. Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty." Respondent directed derogatory comments to students identified in the record as D.V., M.F., J.I., and A.W. Respondent referred to D.V., an African-American, as Dutch Boy because D.V.'s last name sounded Dutch to Respondent. Respondent suggested that D.V. should change names with a white student having a last name that Respondent believed was more appropriate for an African-American. Respondent used the terms "fat" and "stupid" when referring to M.F. and other students in M.F.'s class. Respondent used the term Gomer Pyle to refer to J.I. because J.I. was in the Reserve Officers' Training Corps. (ROTC) program at Gibbs. Respondent told A.W. that larger people don't belong in the physical education class. The derogatory comments degraded students, embarrassed them, were inflammatory to some students, and violated District policy. Respondent violated the Code of Ethics and the Principles of Processional Conduct for Educators by making embarrassing or disparaging remarks and by failing to make reasonable efforts to protect students from mental harm. Respondent has made derogatory comments to students in previous school years. During the 1997-1998 and 1998-1999 school years, an assistant principal received complaints from students about Respondent's use of derogatory comments toward students. The assistant principal held a conference with Respondent on September 15, 1997, and completed a Conference Summary that instructed Respondent to use better communication with students and parents; and to be more professional in addressing students. The complaints against Respondent continued. On September 30, 1997, an assistant principal held a formal conference with Respondent to discuss Respondent's use of derogatory comments to students. The assistant principal again instructed Respondent to refer to students only by their given name and use more professionalism in addressing students. An assistant principal met with Respondent on October 1 and 7, 1997; and on February 13, April 1, and May 4, 1998. In addition to several "walk-throughs," the assistant principal visited Respondent's classroom for an evaluation on March 31, 1998. The annual evaluation for the 1997-1998 school year rated Respondent's judgment as an "I," meaning that improvement was expected in addressing students. The "I" on Respondent's annual evaluation required school administrators to prepare a "Success Plan" to help Respondent address the issues that resulted in the "I" rating. The Success Plan that Respondent signed required Respondent to use positive comments that enhance the self worth of students. Respondent's use of derogatory comments toward students continued during the 1998-1999 school year. An assistant principal held conferences with Respondent on: October 12, 26, and 27, 1998; November 11, 1998; and January 28, March 11, Aril 15, May 3, and May 4, 1999. The assistant principal visited Respondent's classroom on: November 3, 1998; and January 28, March 1, March 11, and April 7 and 15, 1999. Respondent's annual evaluation for the 1998-1999 school year contained more "Is" than the previous evaluation. Respondent received an "I" rating for: (1) Instructional Strategies Conducive to Learning and Critical Thinking; (2) Assessment of Students; and (3) Judgment and Professional Ethics. During the school year at issue, the OPS administrator and Respondent discussed a letter from a parent regarding Respondent's use of derogatory comments. The parent complained that Respondent asked H.T., the parent's daughter, if H.T. was going to be a dentist. H.T.'s last name is related to a dental term. Respondent denied she ever made the comment and then told the OPS administrator, "I can look at her mouth and tell you no." Respondent subsequently told H.T. not to go running to H.T.'s mom if H.T. had a problem with Respondent. Respondent read student grades aloud in class without the permission of the affected student in violation of District policy. Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the names of students with lower grades. Disclosing the grades of students in class without the permission of the student invades the privacy of the student and exposes the student to embarrassment. Respondent has a history of disclosing student grades in class. On May 17, 2000, the OPS administrator issued a letter of reprimand to Respondent for disclosing student grades during the 1999-2000 school year. In relevant part, the letter of reprimand stated: I advised you that one concern was related to your announcing student grades of students in front of the entire class. You said that the Governor had given schools grades and that you could tell students their grades. I advised you that was not so; that student information was protected and confidential and I directed you to refrain from the practice. You said that you didn't read all of the grades. I noted that students said you read grades of students who had A's, B's, and C's. I said that some students who had lower grades were embarrassed. I again reiterated that you should cease reading the grades. Respondent continued to disclose student grades during the school year at issue. Respondent read to the class the grades of A.A., A.S., A.W., C.A., and M.F. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S. The District placed Respondent on administrative leave in October 2000. After Respondent returned from her administrative leave, the OPS administrator received more complaints about Respondent's behavior, and issued another letter of reprimand to Respondent on April 27, 2001. Respondent wrote the following message on the letter prior to returning the signed copy to the OPS administrator: "This is BS. Thank you [OPS administrator]." The District transferred Respondent from Gibbs to a school where Respondent works with another teacher. The transfer shows that Respondent had lost her effectiveness at Gibbs, but not as an employee. The District had a lot of complaints at Gibbs about Respondent. There were issues with Respondent's effectiveness at the school. The District determined that a transfer to another school might help Respondent "get a new start."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c) and (f); guilty of violating Subsection 1012.795(1)(i) and Rule 6B-1.006(3)(a) and (e); suspending Respondent's Florida Educator's Certificate during the summer session after the current school year; and, on the date of the Final Order, placing Respondent on probation for two consecutive years, including the period of suspension, subject to the conditions prescribed in Petitioner's PRO. DONE AND ENTERED this 21st day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of October, 2003. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto Respondent, Edgar Lopez, was a fifteen year old student who was assigned to Henry Filer Middle School during the school year of 1987-88 and to Jose Marti Middle School during the school year 1988-89. When a teacher in the Dade County School System wishes to report or refer a discipline problem in the classroom, the teacher completes and submits to the assistant principal a Student Case Management form, commonly referred to as a SCAM. During the 1987-88 school year, at least nine SCAMs were filed concerning Respondent and addressed disruptive behavior problems of tardiness, disobedience, and failure to cooperate. Respondent, Respondent's parent or both were consulted concerning the nine reports; however the behavior did not improve. Then, in school year 1988-89, Respondent continued to have excessive absences, and the visiting teacher consulted Respondent's mother about Respondent's attendance. On January 31, 1989, Respondent was found with two harmful knives at school and during school hours. Possession of knives is a Group 5 offense of the student code of conduct of the Dade County School Board which is punishable by expulsion. Respondent exhibited disruptive behavior and was consulted about his problems but failed to improve. Further, Respondent committed an offense which warrants expulsion. Accordingly, Respondent's assignment to the opportunity school is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 5th day of July, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989. COPIES FURNISHED: George dePozsgay, Esquire 2950 S.W. 27th Avenue Suite 210 Miami, Florida 33133 Ramonita Gonzalez Lopez, 10,000 Northwest 80th Court Apartment 2127 Hialeah Gardens, Florida 33016 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent, Yvonne B. Eisenberg (Respondent), committed the violations alleged in the Amended Administrative Complaint filed on September 27, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Manatee County Public School District (School District). As such, it has the authority to regulate all personnel matters for the School District. See § 1001.32, Fla. Stat. (2012). Dr. Timothy McGonegal is the superintendent of the public schools for the School District. Dr. McGonegal has the authority to recommend suspension and/or termination of employees for alleged misconduct. At all times material to the allegations of this case, Yvonne B. Eisenberg was an employee of the School District assigned to teach profoundly mentally handicapped (PMH) students at Southeast High School. At all times material to the allegations of this case, Mr. Hall was an assistant principal at Southeast High School. Mr. Hall’s responsibilities included overseeing the exceptional student education (ESE) program at Southeast High School. Respondent’s PMH class fell within the purview of the ESE program. Ms. Toole, an ESE specialist at Southeast High School who is the ESE department chairperson, directly supervised Respondent’s class. PMH students require constant supervision and care. Respondent was assigned a full-time aide to assist her with the class. At times Respondent was assigned a second aide to help with students. Students in Respondent’s class were limited intellectually and physically. All required assistance with feeding, diaper changes, and mobility. It is undisputed that the challenges of managing Respondent’s classroom were daunting. No one disputes that Respondent’s daily work required physical and emotional strength. Cooperation between Respondent and others assigned to work in her classroom was important in order for the school day to run smoothly. Students in Respondent’s PMH class ranged in age and size. The eldest student could be 22 years old. It is undisputed that a 22-year-old might prove to be a physical burden for mobility and diaper changes. Respondent has received satisfactory performance evaluations in the past. Respondent is effective as an ESE teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted a conference with Respondent to present, in writing, specific expectations for Respondent’s future job performance. Mr. Hall advised Respondent to follow the Code of Ethics and to speak civilly and professionally to staff and co-workers. On June 10, 2011, Mr. Hall gave Respondent a written reprimand for her actions during the 2010-2011 school year. More specifically, Mr. Hall cited Respondent’s failure to correct her unprofessional conduct toward staff and co-workers, and her willful neglect of duties. Among other items not pertinent here, Respondent was directed to complete sensitivity training and to promote a positive atmosphere in her classroom. Respondent denied the underlying facts that gave rise to the reprimand, but admitted to “yelling” at her aide. Speaking disrespectfully and loudly toward others was a chief component of Mr. Hall’s concern regarding Respondent’s behavior. On September 20, 2011, Respondent approached Mr. Hall at approximately 8:00 a.m. and asked to talk to him. Mr. Hall had a busy morning agenda but told Respondent he would talk to her later in the day. Respondent accepted the deferment of the talk and did not suggest an emergency situation that required more immediate attention. Later in the day, at approximately 10:30 a.m., Respondent returned to Mr. Hall’s office and asked for a meeting. In the interim between the first request for a talk and the second request, Respondent had sent Mr. Hall e-mails outlining a need for supplies, a request for input regarding an aide’s condition (whether the aide had been cleared to help lift students), and a need for gloves. Mr. Hall advised Respondent that she was not responsible for buying gloves and soap, and that those types of supplies for her students would be provided by the School District. Respondent claimed that a second aide was not needed in her classroom because she felt the two aides assigned to the PMH class were “against her.” Finally, Respondent asked about the status of any physical restrictions for a specifically named aide, Ms. Mitchell. Mr. Hall assured Respondent that the aide could lift as required by the job and had no restrictions. The meeting ended with Mr. Hall presuming he had addressed Respondent’s concerns. Mr. Hall also mentioned that Mr. Johnson, a substitute teacher at Southeast High School, could be made available to help lift Respondent’s students when needed. At approximately 1:15 p.m. the same day (September 20, 2011), Respondent approached Mr. Hall’s office with her fists clenched, her face red with anger, and yelled, “Am I going to get any help in here today?” Mr. Hall was surprised by the loud yelling and was taken aback for a moment. Since he did not understand her request he asked Respondent for a clarification. After a brief exchange, it became apparent to Mr. Hall that Respondent was upset because her students had not been changed all day and were sitting in dirty diapers. Mr. Hall maintained that Respondent had not clearly asked for assistance in changing the students during the two exchanges they had had during the school day. At that point, Respondent exited Mr. Hall’s office and slammed the door. Mr. Hall then telephoned an ESE classroom near Respondent’s room and directed Mr. Hubbard to report to Respondent’s classroom to assist her with changing the students. As Mr. Hall was completing that call, Respondent reappeared at his office and Mr. Hall asked her to step inside. At that time, Mr. Hall told Respondent she could not communicate with him as she had, that she must remain respectful and professional. Respondent then advised Mr. Hall that she was “pissed off.” Mr. Hall directed Respondent to return to his office at the end of the school day, and that Mr. Hubbard was in her classroom waiting to assist her with the diaper changes. Subsequently, Respondent told Ms. Toole that she yelled at Mr. Hall. Respondent maintains that the frustrations of her job and the events of the day supported her behavior. Moreover, Respondent asserts that her passion for the care of her students led to the emotional outburst. Respondent did not return to Mr. Hall’s office at the end of the school day. Mr. Hall reported the matter to his principal and to the District’s Office of Professional Standards. The Superintendent of schools recommended that Respondent receive a three-day suspension without pay for her conduct toward Mr. Hall and her failure to correct behaviors that had previously been identified. The requirement that Respondent show respect toward co-workers was not a new theme. Had Respondent exhibited patience and a professional demeanor, clearly articulated her need for assistance in lifting her students for diaper changes, and sought help in a timely manner (during any portion of the school day prior to 1:15 p.m.), she could have easily avoided disciplinary action. As soon as Mr. Hall was made aware of her need for lifting assistance, he directed additional help to Respondent’s classroom. Curiously, Respondent did not ask Ms. Toole, her ESE supervisor, for help.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be suspended for three days without pay. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 January, 2013. COPIES FURNISHED: Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez and Hearing P.A. 201 North Franklin Street, Suite 1600 Post Office Box 639 Tampa, Florida 33602 Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. David Gayler, Interim Superintendent Manatee County School Board 215 Manatee Avenue West Bradenton, Florida 34205-9069 Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. Keith O'Neil Vinson (date of birth November 1, 1968) was a student enrolled in the regular school program at Arvida Junior High school during the 1982/83 school year as an eighth grader. By letter dated August 18, 1983, Petitioner, the School Board of Dade County, Florida, advised the parent, Mrs. Yvonne Vinson, that Respondent, Keith D. Vinson, was being administratively assigned to Youth Opportunity School South based on his disruption of the educational process in the regular school program and his failure to adjust thereto. Keith is physically well-developed for his age. That is, he is approximately 6 feet 5 inches and weighs approximately 200 pounds. During the 1982-83 school year, Respondent was the subject of more than 10 suspensions and was called in for numerous teacher conferences based on his defiant and assaultive conduct with other students while enrolled at Southwood and Arvida Junior High School. (Testimony and admission of parent, Yvonne Vinson) From 1981 through 1983, Respondent engaged in repeated acts wherein he was involved in fights and assaults of other students. Despite repeated efforts to attempt to control Respondent's defiant behavior, his same pattern of conduct persisted. Although Respondent's mother, Mrs. Yvonne Vinson, testified that the Respondent's conduct has been exaggerated by school officials and that he was singled out for "petty matters," the evidence herein reveals and it is specifically found that the Respondent's conduct was disruptive of the regular school program throughout his enrollment therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's appeal of the Petitioner's assignment of Respondent to an opportunity school program be DENIED. RECOMMENDED this 10th day of February, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1984. COPIES FURNISHED: Mark A. Valentine, Esquire Jesse J. McCrary, Jr., Esquire 3050 Biscayne Blvd., Suite 800 Miami, Florida 33137 Mrs. Yvonne Vinson 11610 South West 140 Terrace Miami, Florida 33176 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Lindsey Hopkins Building 1410 North East 2nd Avenue Miami, Florida 33132
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
