The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
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 sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 July, 2011.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, the stipulations of the parties, and the record as a whole, the following Findings of Fact are made: Teaching Certification and Experience Respondent holds Florida teaching certificate 177890, which covers the area of music and is valid through June 30, 1995. He has been a teacher for the past 27 years. Respondent has spent his entire teaching career teaching music in the Dade County public school system. For fourteen of these years, including the 1990-91 school year and a portion of the 1991-92 school year, he was a music teacher at Sunset High. In terms of student population, Sunset High is one of the largest high schools in the state. During the 1990-91 school year there were approximately 3200 to 3300 students enrolled at the school. As a result of its large student enrollment, classrooms and hallways were crowded and teaching conditions were less than optimum. At all times material to the instant case, Respondent was the teacher responsible for Sunset High's choral program, which enjoyed an excellent reputation due in large measure to Respondent's efforts and dedication. He often stayed at school until late in the afternoon working with his students. Respondent taught beginning, intermediate and advanced chorus at Sunset High. The advanced chorus classes had fewer students than did the other chorus classes. One of the advanced chorus classes Respondent taught was comprised exclusively of female students, approximately 20 in number. It was referred to as "Nightingales." The other advanced chorus class had both male and female students. It was known as "Camelot." The students in "Nightingales" and "Camelot" not only sang in class, they also performed for others, particularly during the holiday season. Rehearsals for these performances were held after the regular school day. Verbal Attacks Respondent was very demanding of his students. He reprimanded them, often loudly and in an angry tone of voice, when they did not follow his instructions or when their singing in class or during rehearsals failed to meet his expectations. These reprimands became more frequent as a performance date grew nearer. Occasionally, Respondent's reprimands included foul language, such as the words "asshole," "bitch" and "shit." There were also times that Respondent called a student with whom he was displeased "stupid" or an "idiot." Respondent's outbursts reduced some of his students to tears because they did not want to be a disappointment to Respondent. The students in Respondent's classes were not the only ones subjected to his tirades. Respondent also lambasted other students at the school and, on isolated occasions, even staff members. For example, during the 1990-91 school year Respondent occasionally yelled at guitar students who were practicing in the hallway in the only space that was available to them for that purpose and threatened to throw them against the wall if they did not leave the area. During that same school year, he was also rude to Marilyn Smith, another music teacher at the school, in the presence of students. Respondent also yelled at Judy Cospito, the school treasurer, for a considerable amount of time in front of approximately 200 people waiting in the lobby of the school auditorium to purchase tickets to a student choral performance. Cospito had volunteered to sell tickets to the performance and Respondent was upset that she had not arrived at the auditorium earlier. Cospito never again offered to do any volunteer work for Respondent. Touching of Students Respondent was not always ill-tempered. On many occasions he acted as a deeply caring teacher with great affection for his students. Respondent openly displayed his affection for his students, particularly his female students towards whom he was more affectionate than their male counterparts. He hugged female students, on some occasions approaching them from the side and on other occasions approaching them from the front. On one occasion, one of Respondent's female students, E.H., was seated at the piano, when Respondent approached her from behind, put his arms around her and touched her breasts. E.H. was startled by Respondent's actions and she jumped up from her seat. Respondent then walked away. This was not the only time that Respondent touched the breast of a female student in his class. After class one day at the beginning of the 1991- 92 school year, J.J., a member of "Nightingales," tried on for Respondent at his request a used performance costume that one of the returning members of the class had offered to sell to her. Upon seeing J.J. in the costume, Respondent thought that it might be too tight around J.J.'s chest. He therefore, pointing at her chest, asked her if it fit there. The finger with which Respondent pointed made contact with one of J.J.'s breasts. Immediately after touching her, Respondent moved his finger away. Respondent kissed female students on the cheek. J.S. was among the female students that Respondent kissed in this manner. Respondent put his hand on the knee of female students, including E.H., T.G. and A.B., when they were sitting next to him. He did this to E.H. with some regularity. On one such occasion, when E.H. and Respondent were alone in Respondent's office, Respondent moved his hand a little above her knee. Respondent shook the hands of female students and, as he did so, rubbed one his fingers against the palms of their hands. J.J. was one of the students to whom Respondent did this. Respondent also held the hands of his female students. One such instance of hand-holding occurred during a school trip to Tampa, Florida, where five of Respondent's students, including T.G., performed in a statewide competition. As T.G. entered the auditorium where the competition was being held, Respondent grabbed her hand and led her to her seat. He continued to hold her hand after they were seated, making her feel uncomfortable. He eventually let go of her hand. Respondent gave his female students shoulder rubs and back massages. He also scratched their backs. T.G. was one of the students whose back Respondent scratched. On one occasion, Respondent playfully stroked the hair of V.N., a member of "Nightingales." On another occasion, he patted M.F., a female student of his, on the buttocks with his hand. M.F. was angered by the incident. Some of Respondent's students, such as E.H., J.J., J.S., and T.G., felt uncomfortable when he touched them, but said nothing about their discomfort to Respondent. Neither did they bring the matter to the attention of the school administration. They thought that if they did tell, the school's choral program would suffer, which was something that they did not want to happen. V.N. and M.F. were two students who let Respondent, at least, know that they did not like it when he touched them. After being made aware of their feelings on the matter, Respondent stopped touching them. There were some students, such as A.B., 2/ who did not find Respondent touching them objectionable. Stares and Suggestive Remarks Respondent appeared at times to stare at T.G., making her feel uncomfortable. He also made comments in class regarding the physical appearance and clothing of his female students. For instance, during deep breathing exercises he commented to the larger breasted girls in the class that he liked the way they were sitting in their chairs. To girls who were wearing outfits that were more revealing than usual he would remark that they looked sexy and that they should wear these outfits more often. Among the girls to whom such remarks were directed were J.J. and J.S., both of whom suffered embarrassment as a result. The remarks embarrassed J.S. to such an extent that when she came home from school she cried. On one occasion, Respondent jokingly told the class that he was going out on a date with J.J. Although Respondent was simply trying to be funny (there was no "date" planned), J.J. was not amused. To the contrary, she was embarrassed by the remark. Handling of Booster Club Monies The Sunset Choral Parents Association (hereinafter referred to as the "Association") is a booster club that supports the choral program at Sunset High. It is an independent entity that operates outside the control of the Dade County School Board. Dade County School Board policy prohibits School Board employees from participating in the fund-raising activities of booster clubs such as the Association. The Association sold jackets and shirts to raise money. Normally, one of the parent members of the Association would come to school to collect money from any student or staff member who wished to purchase a jacket or shirt. On one occasion, a security guard at the school wanted to purchase a jacket from the Association, but there was no Association member available to take her money and give her a receipt. She therefore handed the money to Respondent, who provided her with a receipt. Respondent turned the money over to the Association that afternoon. School Board Disciplinary Action and Respondent's Subsequent Conduct On or about February 4, 1992, Respondent was temporarily transferred from Sunset High and reassigned to administrative duty pending the completion of the Dade County School Board's Special Investigative Unit's investigation of allegations of misconduct made against him. The investigation substantiated that Respondent had engaged in conduct that was unbecoming a School Board employee. Following the completion of the investigation, Respondent returned to Sunset High. On June 11, 1992, he was given the following written reprimand by the principal of Sunset High, Dennis Davis: On January 31, 1992, it was reported that you had displayed inappropriate behavior by yelling at students, using profanity to students and touching female students in an improper manner while teaching chorus in room 122. You violated the United Teachers of Dade Contract Article VII, Section I, as well as School and Dade County School Board Rule 6GX13-4A-1.21 Employee Conduct, and Chapter 6B-1.01(3) Code of Ethics of the Education Profession in Florida. You are accountable for your actions in your capacity as a certificated professional educator and should act in a manner which is consistent with the documents listed above. You are directed to refrain from using inappropriate behavior in the performance of your assigned duties. Any recurrences of the above infractions will result in further disciplinary action. On June 11, 1992, Respondent also received the following written administrative directives from Principal Davis: As stated to you during the re-entry conference on Tuesday, April 21, 1992, written administrative directives would be forthcoming. By this memorandum, I am direct- ing you to refrain from yelling. Additionally, there is to be no use of profanity in class. You are further directed to curtail all touching of female students and remarks that can be construed as sexual or improper. The names and statements of the students who were involved in this investigation have been made known to you. You are directed to avoid any remark or action to any of these students that can be construed as punitive or retaliatory. Your signature below signifies receipt of this memorandum and your intent to comply with these directives. Respondent has complied with these administrative directives since his return to the classroom. 3/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I through VI of the Administrative Complaint and disciplining him for having committed these violation by imposing the punishment proposed in Petitioner's recommended order which is set forth above. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1993. STUART M. LERNER 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 August, 1993.
Findings Of Fact Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega School during the 1976-1977 school year. Thereafter he was reassigned as one of three deans of students at Pinellas Park High School, and he served in this capacity during the 1978-1979 school year. Moses Green has been in the field of education since his graduation from Florida A & M University more than 21 years ago. After teaching several years in South Carolina and Georgia he came to Boca Ciega High School in Pinellas County in 1964 where he started as a teacher. He served as dean of students at Boca Ciega High School from 1974 until 1977 when he was transferred to Pinellas Park High School as a dean of students. In October 1976 enroute from his home to school in a vehicle described both as a van and a motor home, Respondent stopped to give a ride to Jacqueline Blackshear and Stephanie Bellamy, two ninth grade students at Boca Ciega High School. When they entered the van Jackie sat on the housing covering the engine between the two front seats facing the rear of the van and Stephanie sat in the front right-hand passenger's seat. Enroute to school Respondent commented that Jackie was growing up and placed his hand on the inside of Jackie's thigh. At the time, Jackie was enroute to school for cheerleader practice and was wearing shorts. Jackie looked and moved towards Stephanie and Respondent removed his hand. Before arriving at school Respondent again placed his hand on Jackie's thigh and removed it when she moved. Upon arrival at school Respondent told Stephanie to get out as he wanted to talk to Jackie. When Stephanie left the van, Respondent was standing facing Jackie whose back was to the closed door. Respondent grabbed Jackie and attempted to kiss her. She pushed away, opened the door and left the van. When she left the van, Jackie was upset and Stephanie suggested she tell her parent. Near noontime Jackiie went to Gail Weston, a physical education teacher at Boca Ciega High School and told her about the incident in Respondent's van. Stephanie accompanied Jackie on this visit. Ms. Weston described Jackie as nervous and upset. After a few minutes of conversation Ms. Weston realized that it was not something she could handle and she told Jackie and Stephanie that they needed to tell their story at the Dean's office and she took them to Jean Johnson, a dean of students at Boca Ciega High School. There both girls told their story to Ms. Johnson who prepared a statement for them to sign. The story repeated to Ms. Johnson was essentially the same told to Ms. Weston. After typing up their statements, Ms. Johnson told Mr. Demps, the principal. He had the girls brought to him, where the story was again repeated. Demps called Respondent in and confronted him with the story. He also advised his area superintendent and the director of personnel, who investigated the allegations made by these two girls. Demps also arranged for a meeting with Jackie's and Stephanie's parents the following day. Following the investigation, Green, on October 19, 1976 was issued a letter of reprimand (Exhibit 1) for his role in the events that had come to the school's attention regarding the two girls noted above and warned that a recurrence of such conduct would result in dismissal. By letter dated 9 November 1976 Respondent was sent another letter (Exhibit 2) regarding a reported and inappropriate remark made by Green to another female student, which Respondent had denied, and the letter suggested Respondent and the girl take lie detector tests. By letter dated December 29, 1976 (Exhibit 3) the Superintendent of Schools advised Respondent that the results of the polygraph test he had voluntarily taken indicated his answers were deceptive, while the girl's polygraph test indicated her responses were honest. Respondent was placed on probation for the remainder of the 1976-1977 school year and for all of the 1977-1978 school year. Although his principal at Boca Ciega High School, Mr. Demps, considered Respondent's effectiveness at Boca Ciega High School seriously impaired by the notoriety given to the events involving Respondent in 1976, he remained at Boca Ciega High School for the remainder of that school year. For the school year 1977-1978 Respondent was transferred to Pinellas Park High School as dean of students. Upon his transfer to Pinellas Park High School, Demps gave Respondent a good evaluation report. During Respondent's first year at Pinellas Park High School, no incidents were reported to form the basis of any of the charges here considered. This school year 1977-1978 included the probation period set by Exhibit 3. The school year 1978-1979, while Respondent was dean of students at Pinellas Park High School, produced the majority of complaints and testimony at this hearing regarding improper comments made to female students by Respondent, improper contact of a sexual nature with female students by Respondent, and corroboration of this testimony by other witnesses. Ten female students who attended Pinellas Park High School during school year 1978-1979 testified against Respondent regarding incidents between Respondent and these students of a sexual nature. Some of these incidents involved contact or attempted contact such as hugging, kissing or attempting to kiss, touching breasts or attempting to do so, and rubbing the front of his body against students' backsides when passing them when adequate room for passing without contact existed. Several testified to improper comments made to them by Respondent such as "You have a nice set of tits," "I'd like to get in your pants," "You have a nice pair of legs," "Why don't we go to a motel," "You drive an old man crazy," "You have a nice butt and look good in those pants," "One of these days it's going to be you and me," and similar comments regarding female students' anatomy. Much of this testimony was corroborated by other witnesses who overheard the remarks or observed the bodily contact. Additionally, some of the witnesses had complained to their parents or to other faculty members shortly after the incidents. Others first came forward with their complaints when they learned the police were investigating Green's conduct at the school and they became convinced their isolated incidents wouldn't appear unbelievable. Some of these students tolerated and perhaps encouraged the comments to provide them leverage to insure a cover-up for numerous "skips" of classes. Some of these witnesses skipped classes without punishment due to Respondent's position as dean and to whom their infractions were referred. Respondent denied each and every testimonial utterance of misconduct on his part while admitting the situation described by the witnesses, in which the improper actions of Respondent were said to have occurred, were real. During his testimony Respondent referred to school records which would corroborate his testimony, but he made no effort to produce these records or to account for their non-production. Respondent was subjected to three criminal trials on charges stemming from allegations of fact similar to those testified to in these proceedings. He was acquitted on charges alleging battery and false imprisonment and convicted of the offense of attempting to contribute to the delinquency of a minor. Those trials resulted in considerable publicity and the allegations became well-known throughout the Pinellas County School System. Several witnesses testified that Respondent's effectiveness in the Pinellas County School System was totally destroyed by virtue of the notoriety gained by Respondent due to this adverse publicity.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Marion L. Hurst, a black male, has been employed with the Martin County school system since 1969. He presently holds an M.S. degree in Educational Administration and a Rank II certification in administration. Petitioner lacks two hours of graduate courses to add the subject of supervision to his certification. For the past nine years, in addition to teaching social studies classes, petitioner has held the position of team leader at Stuart Middle School, being responsible for the seventh grade reading, language arts and social studies programs. This involves approximately 350 students, six teachers and one or more teacher aides. The duties of a team leader include the scheduling and "levelling" of students, scheduling special assignments to teachers within the team, coordinating information and activities from the administration to the teachers, and weekly meetings with the school administrators. The petitioner adduced evidence that his teacher evaluations during his tenure at Stuart Middle School had been good to excellent overall. In contrast, the respondent presented evidence from several of his coworkers that petitioner occasionally has communication problems with the members of his team, receives complaints from the parents of his students regarding excess paperwork by the students as opposed to teaching by petitioner, and grammatical and spelling errors on petitioner's blackboard. While it is the team leader's responsibility to schedule students, petitioner has for the past several years utilized the reading teacher, Ms. Askeland, to perform that task. The petitioner has applied for many administrative positions in the school system. In April of 1977, petitioner, along with several other persons, applied for the position of assistant principal of Martin County High School -- the only high school in the county. The job description for that position required a Rank II certification with coverage in administration, supervision or curriculum. Petitioner did hold a Rank II certification in administration at the time of his application for the position. Another applicant, Wanda Yarboro, did not hold a Rank II certification with coverage in the required fields in April, 1977. Respondent Navitsky, Superintendent of the Martin County school system, recommended to the School Board that Ms. Yarboro receive the appointment as assistant principal of Martin County High School. Either because of a lack of funding due to the reorganization of the administration at Martin County High, or because Ms. Yarboro did not hold the certification required in the job description, the School Board originally failed to approve her appointment. During the summer months of 1977, a change was being effected in the School Board policy. The change allowed instructional administrators to acquire within twelve months of assignment a certificate covering the areas in which they are placed. Ms. Yarboro's appointment as assistant principal was approved by the School Board in August of 1977, and she received her certification in administration and supervision on September 28, 1977. Conflicting evidence was adduced at the hearing on the issue of whether Dr. Clifford Rollins, a person holding a higher ranked certificate and greater administrative experience than either Ms. Yarboro or petitioner, was also a candidate for the assistant principalship of Martin County High School in April of 1977. While his name appears on several lists of candidates for this position, the greater weight of the evidence leads to the finding that Dr. Rollins was not a candidate for that position. Superintendent Navitsky, though aware of Dr. Rollins desire to return to Martin County, did not consider him a candidate. Dr. Rollins testified that he was not a candidate for the position of assistant principal of the high school. While he did express an interest in returning to the community, he did not apply for this position because he was a former principal of that school and also because he was aware that other teachers and the department chairmen wanted Ms. Yarboro, who had been at the school for some time, to be promoted to the assistant principalship. Dr. Rollins had instructed the school personnel office to keep his application file active and this fact was offered in explanation of why his name appears on the list of candidates for the position. Ms. Yarboro had formerly occupied the position of department head of social studies at Martin County High School, which position became vacant upon her promotion to assistant principal. Although the school principal had recommended that Ann Crook be promoted to department head, Superintendent Navitsky called petitioner Hurst and offered him the position. This position involved responsibility for 33 teachers. Dr. David Anderson, a member of the Martin County School Board, received numerous telephone calls from other teachers at the high school in opposition to petitioner's appointment as department head of social studies. Dr. Anderson became concerned that petitioner was being "set up" in a hostile environment which would eventually lead to poor evaluations of petitioner and dismissal from his administrative position. Anderson believed that such an appointment may not be a good way for petitioner to begin his administrative career. Thereupon, Dr. Anderson arranged a meeting with Superintendent Navitsky, petitioner, himself and several other administrators. Dr. Anderson expressed his concerns at this meeting. Mr. Navitsky offered petitioner his support if he accepted the position. After discussing the matter, petitioner decided to withdraw his name as a candidate for the department head position. Superintendent Navitsky assured petitioner that declining the position would not adversely affect his candidacy for other positions. Petitioner believed that Navitsky was making him a promise that he would be appointed to the next administrative position. Gilbert Miller, the deputy superintendent for noninstructional services, was present at the meeting and recalled that Navitsky made no promise that petitioner would receive a specific appointment at a specific time in the future, but only an indefinite promise of a future administrative position. The next administrative position applied for by petitioner occurred in July of 1978. The former principal of Indiantown Middle School, located some twenty miles west of Stuart, resigned on short notice. Seven or eight persons applied for the position. Superintendent Navitsky interviewed all the candidates, including petitioner and Dr. Clifford Rollins. As noted above, Dr. Rollins had previously been the principal at Martin County High School. He had also been a principal at another Indiantown school and had most recently been a director of teacher education and the acting chairman of the department of education at a college in West Virginia. Dr. Rollins was recommended to the School Board by Superintendent Navitsky to fill the Indiantown Middle School principalship because of his past administrative experience and his previous service with and knowledge of the school district and the Indiantown area. The School Board approved the recommendation of Dr. Rollins. All witnesses, including petitioner Hurst, agreed that Dr. Rollins had better credentials than petitioner for this position. In August of 1978, the administrative position of curriculum coordinator at Murray Middle School became available. Seven or eight persons applied for the position, including the petitioner. The duties of a curriculum coordinator at a middle school include working with teachers to help develop curriculum and choose teaching material, evaluating testing and teaching techniques, assisting and scheduling students, evaluating teachers and a general knowledge of curriculum content at all levels. The principal at Murray Middle School, Edward Sheridan, personally interviewed all candidates for the position and developed a factoring or rating sheet for each candidate. He also discussed the candidates with his assistant principal, Quilley McHardy. The candidate receiving the highest rating was Joan Gallagher and Mr. Sheridan therefore recommended her for the position. Assistant Principal McHardy, a black, concurred in the recommendation. Superintendent Navitsky recommended her to the School Board because of Mr. Sheridan's recommendation and Ms. Gallagher was appointed as the curriculum coordinator at Murray Middle School. Joan Gallagher has been in the field of education for seventeen years. Until 1974, she taught at the elementary school level. Since 1974, she had been a sixth grade teacher at Murray Middle School and was the sixth grade team leader for a few months immediately prior to her appointment as curriculum coordinator. Two witnesses who were employed at Stuart Middle School had worked with both Ms. Gallagher and petitioner Hurst. The curriculum coordinator at Stuart testified that Ms. Gallagher was superior to petitioner Hurst in scheduling techniques. Ms. Askeland, the seventh grade reading and language arts teacher at Stuart who helped petitioner with scheduling at Stuart, testified that Ms. Gallagher had a better knowledge and understanding of curriculum concepts than petitioner. In the summer or fall of 1978, several members of the Young Men's Progressive Association, a civic organization of black businessmen and professionals, met with Superintendent Navitsky regarding the lack of black teachers in high school academics and in administration. According to two witnesses who attended the meeting, Mr. Navitsky acknowledged this problem, was sympathetic to their concerns, and agreed to do what he could to remedy this situation. While these witnesses felt there had been systematic discrimination in the school system, it was acknowledged that progress had been made in the promotion and recruitment of black teachers in Martin County due to the positive efforts of Superintendent Navitsky. Joint Exhibits 1A through 1D illustrate that during the period between 1974 and 1979, black persons received the appointment to an administrative position in those instances where they were candidates sixty percent of the time. In those instances where the only candidate was black, he or she received the appointment. Also, the percentage of black administrators to the total population of administrators in the Martin County school system increased from 13.6 percent in the 1974-75 school year to 19.2 percent in the 1979-80 school year. As of the date of the hearing in this cause, one-half of the ten available administrative positions in the 1979-80 school year were filled or offered to black candidates. In two of the instances where whites were appointed, there were no black candidates for the position.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the Commission on Human Relations enter a final order finding that the respondents did not engage in unlawful employment practices in appointing Dr. Rollins to the position of principal of Indiantown Middle School or in appointing Ms. Gallagher to the position of curriculum coordinator of Murray Middle School; dismissing petitioner's petition for relief in this cause; and denying petitioner's motion for attorney's fees. Respectfully submitted and entered this 25th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Gamba, Esquire Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494 Douglas K. Sands, Esquire 300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494 Marva A. Davis, Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center, Cricle E Tallahassee, Florida 32301 Norman A. Jackson, Executive Director Florida Commission on Human Relations 2562 Executive Center, Circle E Tallahassee, Florida 32301
The Issue The basic issues in these consolidated cases are whether the Respondent should be dismissed from his employment as a school teacher in the Broward County School District and whether his Florida teaching certificate should be disciplined based upon substantially similar charges filed by the respective Petitioners. Petitioners allege that the Respondent conducted himself improperly on three separate occasions with three different female students. The Petitioner School Board of Broward County seeks the Respondent's dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) immorality, (b) misconduct in office, and moral turpitude. The Petitioner Betty Castor seeks to discipline the Respondent's Florida teaching certificate pursuant to Section 231.28, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) gross immoral-ity or an act involving moral turpitude, (b) personal conduct which seriously reduces his effectiveness as an employee of the School Board, and (c) violations of the code of conduct for educators in the State of Florida. The Respondent denies any misconduct.
Findings Of Fact Facts stipulated to by all parties The Respondent, Wayne N. Bailey, holds Florida teaching certificate 478398, covering the areas of Science, Biology, and Physical Education, which is valid through June 30, 1995. At all times pertinent to these consolidated cases, the Respondent was employed as a teacher and coach at South Plantation High School in the Broward County School District, and was so employed since 1980. The Respondent holds a continuing contract as a classroom teacher. Virgil L. Morgan, is the Superintendent of Schools for Broward County, Florida. Facts established at the hearing Facts regarding the student J.F. 1/ During the 1987-1988 school year, a female student named J.F. was a student in the fifth period Biology class taught by the Respondent. J.F. was a student in that class for the entire school year. During the first half of the school year she sat in the front of the classroom. Sometime during the 1987-88 school year, J.F. reported to the school authorities that the Respondent had passed a note to her in class containing words to the effect that the Respondent thought she was a bright girl, that he wanted to get to know her better, and requesting her telephone number. The record in this case lacks persuasive evidence that the incident reported by J.F. actually occurred. 2/ Facts Regarding the Student C.P.C. 3/ During the first half of the 1987-88 school year, a female student named C.P.C. was a student in the second period Biology class taught by the Respondent. One evening after a football game at South Plantation High School, C.P.C. was sent to get some ice from a locked concession stand. When she got to the concession stand, she saw the Respondent holding something that she believed contained beer. 4/ On several occasions thereafter, C.P.C. joked with the Respondent to the effect that she had seen him with beer in the concession stand. Towards the end of the first semester of the 1987-88 school year, in conjunction with seeking a transfer out of the Respondent's class, C.P.C. reported that the Respondent had offered to provide her with beer and had invited her to drink beer with him at his house. The record in this case lacks persuasive evidence that the offer and invitation reported by C.P.C. actually occurred. 5/ Facts Regarding the Student L.H. 6/ During the 1989-1990 school year, a female student named L.H. was a student at South Plantation High School. During that school year, L.H. was in the twelfth grade. She was never a student in any class taught by the Respondent, and prior to the incident described below she had had very little contact with the Respondent. During the 1989-90 school year, L.H. was a member of the girl's varsity basketball team. The incident described below occurred on an afternoon in early January (probably January 3) of 1990, prior to a home basketball game that was played on the campus of South Plantation High School. Because there was a basketball game later that day, on the day in question L.H. remained on the school grounds when classes were over at 2:35 p.m. Two other students stayed on the campus with her, D.G. 7/ and S.M. 8/ Sometime after 3:00 p.m., but before 4:00 p.m., L.H. wanted to go to the coaches' office inside the gymnasium in order to get some fruit from her gym bag. She and her two student companions went to the gymnasium and found that it was locked. The three students began to knock on the door. Shortly thereafter, the Respondent came to the door and asked why the students wanted to come into the gymnasium. After L.H. explained what she wanted, the Respondent allowed her to enter and then closed the gymnasium door, leaving the other two students outside the gymnasium door. Again, the gymnasium door was locked. L.H. entered the coaches' office inside the gymnasium and proceeded to retrieve her gym bag. The Respondent followed her into the coaches' office and closed the door to the office behind him. Thereupon, the Respondent approached L.H., began trying to fondle her body, began kissing her, and while doing so succeeded in partially unbuttoning the top of L.H.'s jump suit and pulling it down over her shoulder. The Respondent then lifted L.H.'s bra, exposing her breast, whereupon he rubbed her breast with his hands and then placed his mouth on her breast and sucked hard and/or bit on her breast. During the course of this activity the Respondent also unzipped his pants, removed his penis from his pants, and then pushed one of L.H.'s hands until it was in contact with his penis. The Respondent also attempted to get L.H. to lie down on a desk in the coaches' office. During the course of the activities described immediately above, the Respondent was speaking to L.H. encouraging her to consent to sexual intercourse, while she was asking him to stop and struggling to free herself from his clutches. Shortly after the commencement of the activities described above, the two students who had remained outside began to knock loudly on the locked gymnasium door. Shortly after the knocking began, the Respondent released L.H., zipped up his pants, sat down, and pretended to be talking on the telephone. He then said to L.H., "this will be our secret, just between me and you." As soon as the Respondent released her, L.H. rearranged her clothes, left the coaches' office, and then left the gymnasium. When she met D.G. and S.M. outside the gymnasium, L.H.'s hair was messed up and it appeared to both D.G. and S.M. that something was bothering L.H. D.G. proceeded to ask L.H. several times what was bothering her. Because she was embarrassed, frightened, and confused, L.H. did not tell D.G. or S.M. what had happened until sometime later. Later that same evening, L.H. called D.G. on the telephone and told him in detail what the Respondent had done to her in the coaches' office. L.H. did not report the Respondent's conduct to school authorities until February 28, 1990, during the course of an interview by her school guidance counsellor. Her delay in reporting the matter to school authorities was due to her embarrassment and to her concern that the school authorities might not believe her word over that of a teacher. The Respondent's effectiveness as an employee of the Broward County School Board has been seriously diminished by the incident involving L.H.
Recommendation Based on all of the foregoing, it is RECOMMENDED that final orders to the following effect be entered in these cases: In Case No. 90-3615, a final order should be entered concluding that the Respondent is guilty of "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment with the Broward County School Board. In Case No. 90-6154, a final order should be entered concluding that the Respondent is guilty of "gross immorality or an act involving moral turpitude," of conduct "which seriously reduces that person's effectiveness as an employee of the school board," and of conduct violating paragraphs (a) and (e) of subsection (3) of Rule 6B-1.006, Florida Administrative Code, within the meaning of Section 231.28(1)(c), (f), and (h), Florida Statutes, and permanently revoking the Respondent's teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of December 1991. MICHAEL M. PARRISH 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 3rd day of December 1991.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 23rd day of January, 2017.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
The Issue The central issue in this cause is whether the Respondent, Nelson Lopez, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year, Respondent attended Miami Lakes Junior High School in Dade County, Florida. Respondent (date of birth: 6-27-72) was enrolled in the seventh grade prior to being notified of the administrative assignment to the Jan Mann Opportunity School North. Respondent's grades for the first two grading periods of the 1986-87 school year were as follows: COURSE ACADEMIC GRADE EFFORT CONDU Mathematics 1st F 3 F 2nd F 3 F Physical 1st F 3 F Education 2nd F 3 F Industrial 1st F 3 F Arts Education 2nd F 3 F Language 1st F 3 F Arts 2nd F 3 F Foreign 1st F 3 F Languages 2nd F 3 F French Science 1st F 3 F 2nd F 3 D GRADE SYMBOLS: "F" UNSATISFACTORY EFFORT CONDUCT CONDUCT "3: "D" "F" INSUFFICIENT IMPROVEMENT NEEDED UNSATISFACTORY CT Respondent was administratively assigned to the opportunity school on February 3, 1987. Respondent did not enroll at the opportunity school and did not attend classes. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Lakes Junior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the 1986-87 school year Respondent caused five Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of these referrals is attached and made a part hereof. On November 3, 1986, Respondent was suspended from school for a period of three days as a result of his leaving campus without permission. On November 17, 1986, Respondent was suspended from school for a period of four days as a result of his defiance of school personnel. Emmitt Reed is an industrial arts teacher at Miami Lakes Junior High School in whose class Respondent was enrolled. While in Mr. Reed's class, Respondent was persistently disruptive Respondent was habitually tardy and would wrestle, throw objects, and talk loudly. Mr. Reed attempted, without success, to modify Respondent's behavior. Mr. Reed was unable to reach Respondent's parents. David Wilson is a physical education teacher in whose class Respondent was enrolled. Respondent did not complete assignments and did not dress out to participate with the class. Respondent left the physical education area without permission on several occasions. Mr. Wilson took Respondent to a counselor for guidance, but efforts to improve Respondent's performance were unsuccessful. Elena Casines is a social studies teacher in whose class Respondent was enrolled. Respondent did not complete class or homework assignments, and habitually came to class unprepared. Respondent was so disruptive in Ms. Casines' class that she had to interrupt teaching to take him to the office. These interruptions were frequent, and he would talk so loudly that she could not conduct class. Frank Freeman is an assistant principal at Miami Lakes Junior High School. Mr. Freeman attended a child study team conference. The purpose of the conference was to determine proper placement for Respondent. The team consisted of school personnel familiar with Respondent's academic record and disruptive behavior. The team recommended placement at an opportunity school. Respondent's student record does not suggest he is a "special student." There is no record that Respondent's parents requested special testing for their son. Mr. Lopez, at the hearing, requested that his son be tested as a special student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School North and direct that, in accordance with the parent's request, the student be immediately tested for any special or exceptional learning program needs. DONE and ORDERED this 3rd day of November, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 3rd day of November, 1987. SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS DATE INCIDENT DISCIPLINE 10/30/86 disrupting class; attempted walking halls; talking parent excessively; leaving contact but class w/o permission unsuccessful 11/04/86 left campus w/o three day permission police suspension caught and returned 11/17/86 defiance of Four-day school personnel 12/01/86 skipping attempted parent contact 02/11/86 continuing ten-day defiance suspension APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1089 Rulings on Proposed Findings of Fact submitted by Petitioner: 1. Accepted. (See Finding paragraphs 1 and 2). 2. Accepted. Paragraph 3. 3. Accepted but unnecessary. 4. Accepted. See paragraph 6. 5. Accepted. See paragraph 6. 6. Accepted. See paragraph 7. 7. Accepted. See paragraph 8. 8. Accepted. See paragraph 8. 9. Accepted. See paragraph 5 and Synopsis. Accepted. See paragraph 9. Accepted. See paragraph 10. Accepted but unnecessary. The credible evidence of the witnesses testifying discredited the "reports" accepted as Respondent's exhibit 1 and 2. Accepted but unnecessary. Accepted but unnecessary. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Raul A. Cossio 2542 Southwest 6th Street Miami, Florida 33135 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether a district school board is entitled to suspend for 30 workdays, without pay, a paraprofessional for just cause based upon the allegation that he kicked an autistic student and struck the student with an umbrella.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Robert Blanc ("Blanc") had worked in the Miami-Dade County Public School System for more than 20 years. During the 2006-07 school year, and at all times relevant to this case, Blanc was employed as a therapeutic paraprofessional at South Miami Senior High School, where he provided educational services to students with disabilities. The alleged incident giving rise to this case occurred on Friday, October 12, 2007. The School Board alleges that on that date, at approximately 2:30 p.m., Blanc kicked an autistic student named C. R. in the leg, and then used his umbrella to strike C. R. on the arm. This allegation is based on the accusations of two purported eyewitness (hereafter, collectively, the "Accusers")——Julie Ann Rodriguez and Nemy Aimable——both of whom were (and as of the final hearing continued to be) education paraprofessionals working at South Miami Senior High School. Blanc consistently has maintained his innocence, denying that he kicked or struck C. R. as charged. Moreover, he claims——and testified at hearing——that C. R. kicked him, and that he (Blanc) then used verbal commands to redirect C. R. and get the student to sit down, thereby protecting himself and others. This case boils down to a credibility contest between the Accusers and Blanc. If the Accusers' account is truthful and accurate, then Blanc is guilty of at least one of the charges against him and should be disciplined. On the other hand, if Blanc's account is believed, then he is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the competing accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that unless otherwise specifically stated, the findings in the next two sections merely report what the respective witnesses said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place on October 12, 2007. The Accusers' Story While the respective accounts of Ms. Rodriguez and Mr. Aimable concerning the incident in question differ as to some nontrivial details, they agree on the big picture. Their story begins at about 2:30 on a Friday afternoon. The Accusers were on "bus duty," as were other staff members, as was Blanc. Ms. Rodriguez and Mr. Aimable were sitting next to one another on a wall or ledge overlooking a field of grass that lay between them and the road where a line a buses stood waiting for children to clamber aboard. This was a busy time of day, and many people were moving about the bus loading area. Sitting on the long wall with the Accusers were a number of other school employees——at least 25 teachers and aides in all, maybe more, Ms. Rodriguez recalled (and the undersigned finds). Blanc, however, was not sitting on the wall; he was standing on the grass, among the students. Ms. Rodriguez and Mr. Aimable were engaged in conversation, when suddenly each noticed Blanc——who was located about 10 feet in front of them——kick C. R. on the leg and strike the student with an umbrella across the upper body. Ms. Rodriguez recalls that C. R. was sitting down on a ledge, near other faculty members, when Blanc attacked. Mr. Aimable, in contrast, remembers C. R. standing in the grass when Blanc struck. According to Ms. Rodriguez, Blanc yelled at C. R., threatening to "beat up" the student if C. R. ever hit Blanc again. Mr. Aimable does not recall Blanc making such a threat, although he vaguely remembers Blanc uttering something about not letting C. R. get away with hitting him. By their own admissions, which are accepted as credible and found as fact, neither of the Accusers saw anything that transpired between Blanc and C. R. before the alleged battery. The altercation upset Ms. Rodriguez, and she began to cry. She and Mr. Aimable continued talking——but not about the battery they had just witnessed. It is undisputed that neither of them made any attempt to protect C. R. or other students from Blanc; nor did they examine C. R. for injuries or offer any assistance.1 No one else did either. Apparently none of the other staff members on the scene saw Blanc attack C. R., and the Accusers (it is found, again based on undisputed evidence) did not mention to anyone sitting near them on the wall the remarkable event they had seen. About ten minutes later, the Accusers rose from the wall and walked to the office, where they would "sign out" for the day. Blanc's Testimony Blanc, who was on bus duty the afternoon of Friday, October 12, 2007, was standing in the middle of the grassy area near the buses, chatting with another teacher, when he felt a sharp pain in his lower right leg. C. R. had just kicked him hard, without warning, and was now pressing very close, invading his personal space. C. R. is a special education student who has been diagnosed with autism. He is reportedly nonverbal. (C. R. did not appear at the final hearing.) It is an undisputed fact that C. R. has a history of violent and assaultive behavior: he has injured teachers and once broke a bus driver's nose; in addition, he hurt a student by striking her in the stomach. Also material are the undisputed facts that C. R. is an adult- sized male who, at the time of the incident, was 17 years old, stood approximately six feet tall, and weighed about 200 pounds. Blanc, who is blind in one eye, was taken by surprise when C. R. attacked him. Though his hands were full——Blanc was holding a collapsible umbrella in one hand and a coffee mug in the other——he raised his arms to protect his face, yelled at C. R. to sit down, and began backing C. R. toward the ledge, where he could be seated. This approach worked. C. R. sat down, and the situation was defused. At this point, Isidro Alfonso, who is C. R.'s one-on-one paraprofessional, took charge of C. R. Blanc immediately reported to his supervisor, Yvette Williams, that C. R. had kicked him. Ms. Williams was (and as of the final hearing continued to be) a special education teacher at South Miami Senior High School. She, too, was on bus duty that day but had arrived on the scene after the incident took place. Blanc told Ms. Williams that he was going home to put ice on his ankle, which hurt. Ms. Williams saw no need to report the incident because C. R. was known to lash out at teachers and others. Blanc, for his part, declined to make a formal report out of concern for Mr. Alfonso, who, he felt certain, would be disciplined for inattentiveness if the matter were brought to the attention of the administration. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict that both cannot simultaneously be considered fully accurate. The fact-finder's dilemma is that neither account——the Accusers' on the one hand, Blanc's on the other——is inherently incredible, impossible, or patently a fabrication; neither, in short, can be readily or easily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In evaluating the credibility of the witnesses who testified against Blanc, the undersigned has considered the relationship that existed between Ms. Rodriguez and Mr. Aimable, as well as their post-incident conduct. As mentioned above, after the incident, the Accusers walked to the office together, arriving at about 2:45 p.m. At some point, they agreed to report what they had observed, namely that Blanc had physically attacked a disabled student. Yet, once the two were in the office, they decided that it was "too busy" there——and so, rather than waiting to be seen, they left after at most ten minutes, without telling anyone in authority that Blanc had (at least as they understood the situation) committed a battery on a minor. This impatience seems a bit strange, given the circumstances. The undersigned supposes that a reasonable school employee, having witnessed an incident as serious as the one the Accusers claim to have seen, would have been insistent about speaking to someone in the administration about it. That the Accusers lacked such persistence does not completely discredit them, but it does raise doubts about their veracity. Leaving the office, Ms. Rodriguez and Mr. Aimable walked to the parking lot, got into Ms. Rodriguez's car, and drove off the premises together, around three o'clock. This was not unusual for them: they carpooled to work. Ms. Rodriguez and Mr. Aimable were not, in other words, merely co-workers; they were co-workers who spent off-duty time together. The Accusers made two stops on the way home that day, to pick up Ms. Rodriguez's children from their respective schools. Ms. Rodriguez then dropped off Mr. Aimable at his place. By that time, it was about 3:35 p.m. At home, Mr. Aimable continued to stew about the incident, he says, and after about an hour, around 4:30, he called Ms. Rodriguez to ask that she pick him up and return with him to the school to report the matter. According to Mr. Aimable, Ms. Rodriguez assented; she arrived at his residence around 4:50 p.m. From there, they proceeded to the school, where they eventually found an assistant principal, Ms. Tudor. It was now around 5:30 Friday evening, some three hours after the alleged event. Each of the Accusers prepared for Ms. Tudor a written statement about the incident. According to Mr. Aimable, this process took until about 6:45 p.m., at which time the Accusers went home. Later Friday night, at a homecoming dance, Ms. Tudor notified the school's principal, Gilberto Bonce, about the complaint made earlier against Blanc; she also let him know that the Accusers' statements were on his desk. Mr. Bonce took no action that night, however, nor did he do anything in reference to alleged incident over the weekend or during the following Monday, October 15. Curiously, in view of the possibility (if the Accusers were believed) that one of his staff might have committed a crime against a student, Mr. Bonce did not report the matter to the school police until Tuesday, October 16, 2007. All in all, the circumstances——especially the following——give the undersigned reasons to discount the Accusers' testimonies. The failure of Ms. Rodriguez and Mr. Aimable to take any immediate action at the scene of the incident not only is inconsistent with their claim to have seen Blanc beat C. R., but also it ensured that there would be no better evidence than their eyewitness accounts of a sudden and unexpected, fast-moving event whose duration can be measured in seconds. Had the Accusers gone to the aid of C. R., as a reasonable, responsible adult in their position should have done, they could have examined him for injuries. If Blanc had given C. R. a hard kick in the leg and struck him with an umbrella, the blows likely would have left at least a red mark somewhere on the student's body. Mr. Aimable, for example, could have studied such a mark or welt, not for a moment, but long enough to form a firm, lasting impression, one less subject to misinterpretation or distortion than the mental image left behind after catching a fleeting glimpse of activity that occurred unexpectedly in his field of vision, while focused on something else. Testimony about such an injury would have been compelling. But there was none. The Accusers' decision not to report the incident immediately because it was too "busy" in the office is inconsistent with the gravity of the alleged misconduct. But more than that, because Ms. Rodriguez and Mr. Aimable left the premises together before telling anyone about what they claim they saw, the two had ample opportunity to talk privately for a couple of hours——plenty of time to "get their story straight." One does not need to believe that the Accusers consciously intended to harm Blanc to realize that their discussing the incident (which they must have done——after all, they returned to the school on a Friday evening to make a report about it) likely helped them reach a consensus about what had happened, potentially corrupting their memories in the process. The Accusers' respective accounts are not, at bottom, independent accounts, and may, in fact, be dependent on one another.2 Indeed, in this case, one eyewitness might have been more persuasive than these two. Finally, it is significant that, while the incident took place in full view of more than two dozen responsible adults, not one of them intervened——and no one (besides the Accusers) even saw the altercation. To be sure, these facts cut both ways: nobody saw C. R. kick Blanc or intervened to help him either. Nevertheless, as between the competing scenarios, it seems more likely that C. R. was the attacker, rather than the other way around, for at least two reasons. First, C. R. had a history of assaultive behavior whereas Blanc did not. Second, if Blanc were inclined to hit C. R., he likely would have refrained from doing so in broad daylight before an audience of his peers. C. R., on the other hand, being severely autistic and physically aggressive in nature, would not likely have been deterred by the presence of witnesses. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Blanc struck C. R. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Blanc described it; in other words, relative to Accusers' account, Blanc's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 12 through 15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Blanc committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Blanc is guilty of the offense of violating the School Board's policy against violence and threatening behavior in the workplace. The greater weight of the evidence fails to establish that Blanc is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Blanc is guilty of violating the School Board's Code of Ethics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Blanc of all charges brought against him in this proceeding and awarding him the back pay, plus benefits if any, which accrued while he served the previously imposed suspension of 30 workdays. DONE AND ENTERED this 6th day of January, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2009.
