The Issue Whether respondent should be terminated from her employment as a continuing contract school teacher, pursuant to Section 231.36(6), Florida Statutes (1981), for alleged gross insubordination within the meaning of Section 231.36(6), Florida Statutes (1981), and Rule 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent Elva Jean Newland has been a school teacher for 36 years. She has a Bachelor's Degree in Education from Radford College, a Master's Degree in Learning Disabilities from the University of Virginia, and has completed numerous post-graduate courses. (Testimony of Respondent) She has spent her career teaching young children, ages five through eleven. For the past 16 years, she has been employed as a teacher by the School Board of Charlotte County. Until her suspension in May, 1982 (for alleged gross insubordination) , she was employed, under continuing contract, as a kindergarten teacher at Neil Armstrong Elementary School in Port Charlotte, Florida. (Testimony of respondent) She has developed a personal philosophy on discipline in the classroom. Essentially, she maintains that "You cannot teach a child unless you have that child's attention. You cannot get his attention if there is a disruptive influence. (Tr.-175) For many years, she handled disruptive influences in the classroom by using a small paddle which she referred to as "Mister Bolo." When students became disruptive (such as talking too loud or running about the room) she would invite "Mr. Bolo" to "talk" to them. This was accomplished by the child spanking his or her own hands or feet (after removing the shoes) with the bolo paddle. If the child did not administer the spanking, respondent would. (Testimony of respondent, Hrstka) At her principal's request, respondent eventually discarded the "Mr. Bolo" paddle. The School Board maintains that she used other methods of disciplining disruptive children, that she repeatedly administered corporal punishment in direct disobedience of orders of her superiors and rules of the School Board, and that such misconduct constitutes gross insubordination. Respondent denies having administered corporal punishment in violation of orders or rules, and denies the charge of gross insubordination. II. Rules for Administering Corporal Punishment During the 1980-81 and 1981-82 school years, respondent was aware of the rules of the School Board and the Neal Armstrong Elementary School governing corporal punishment. (Prehearing Stipulation, p. 4) These rules defined "corporal punishment" as: the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term corporal punishment does not include the use of such reasonable force by a teacher or principal as may be necessary to protect themselves or other students from disruptive students. (P-2) Essentially,a teacher may administer corporal punishment to enforce discipline (where other methods of seeking cooperation have failed) in accordance with specific criteria. Corporal punishment must be administered in the principal's office; prior approval of the principal is necessary; an adult witness must be present; the witness and the child must be told of the reasons for the corporal punishment; excessive force cannot be used; and, a written report of the incident must be filed with the principal and sent to the child's parents. (P- 2, P-5) Respondent concedes the propriety of these rules and that corporal punishment may not be administered without first complying with them. (Prehearing Stipulation, pp. 6-7) III. During the 1980-1981 School Years, Respondent Administered Corporal Punishment in Violation of the Rules of the School Board and in Defiance of the Orders of Her Principal In early 1981, Lawrence H. Nickler, then principal of Neal Armstrong Elementary School, received complaints from parents that respondent physically punished her students. Mr. Mickler reacted by issuing her a written order. The order, dated February 13, 1981, instructed her to put aside all references to corporal measures; any gesture which might be misconstrued as of a corporal nature; or the use of any devices in such a manner which might be considered as dealing corporal punishment. This includes or could include a ruler, paddle, bolo paddle, etc. (P-7) He specifically warned her that the continuing concern of parents could threaten her career, that her reputation and professional future were in jeopardy. (Testimony of Mickler, P-7) Nonetheless, on or about May 5, 1981, respondent administered corporal punishment to Michelle White, a student, by striking her on the head--a blow which broke the blue plastic headband she was wearing and bruised the child's scalp. Respondent administered this blow to Michelle in the classroom in the presence of other and without first taking her to the principal for corporal punishment, without first securing the presence of an adult witness, and without advising the witness of the reason for the punishment. She also failed to complete the report which must be filed with the principal and sent to the child's parents. (Testimony of respondent, White, P-8) Faced with this violation of his orders, principal Mickler called respondent to his office on May 6, 1981, and discussed the incident with her, informed her that her action violated his previous order, and specifically warned that any further violations would result in disciplinary action. (Testimony of Mickler, P-9) IV. During the 1981-1982 School Year, Respondent Administered Corporal Punishment in Violation of Rules of the School Board and Orders of Her Principal During the 1981-1982 school year, Robert Hrstka became principal of Neal Armstrong Elementary School. On the first day of school, he met with his teachers (including respondent) and reviewed the school handbook, including procedures for handling disciplinary problems. He specifically informed them that they could use corporal punishment only if they followed the rules; that any teacher who intended to use corporal punishment should report to him for a demonstration of the proper technique for administering it. Respondent, however, did not report to him for the demonstration. (Testimony of Hrstka, Prehearing Stipulation, p. 5) Respondent did, however, come to Mr. Hrstka's office the next day and explain to him how she used her "Bolo" paddle. He responded that her use of the paddle constituted corporal punishment, instructed her that she was to discontinue using it, and reminded her that if she wanted to administer corporal punishment she would have to follow the rules. (Testimony of Hrstka, Prehearing Stipulation, pp. 6-7) Nonetheless, during the ensuing school year, respondent administered corporal punishment to five students, on six separate occasions, in violation of the School Board's rules and her principal's orders. Emily Robarge. In October, 1981, respondent administered corporal punishment to Emily Robarge, a kindergarten student, by slapping her on the hands, causing her to cry. This was done in the classroom in the presence of other students, without securing an adult witness, without first taking the student to the principal's office, without first advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Respondent's Response to Requests for Admissions, para. 15) Rebecca Hoop. During February, 1982, Rebecca Hoop, a fourth grade student, was making noise by clicking the handle on the front door of the school. Respondent opened the door, pushed her back, and pinched her on the arm, breaking the skin and causing a black-and-blue bruise. This constituted corporal punishment and was administered without taking the student to the principal's office, without first securing an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Jones, respondent, Hrstka) Brian Chelarducci. During March or April, 1982, respondent took Brian Ghelarducci, a student, into the restroom within her classroom and administered corporal punishment by striking him on the hands three or four times, using a ruler or other wooden object. 3/ This occurred in the presence of the other students and without respondent first securing an adult witness, without advising the witness of the reason for the corporal punishment, without taking the student to the principal's office, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Smoak, Hrstka) Emily Robarge. During the spring of 1982, Respondent again administered corporal punishment to Emily Robarge, a kindergarten student. Emily was late returning from recess and respondent met her outside the classroom door in the hallway. The door was closed. Respondent held the girl by one arm and spanked her fairly hard on the buttocks four or five times, causing the student to cry. (This was more than a series of taps or a nudging to encourage Emily to move more quickly.) This constituted corporal punishment and was administered without respondent first taking Emily to the principal's office, without securing the presence of an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Collard) Jeff Elliot. In January, 1982, respondent administered corporal punishment to Jeff Elliot, a kindergarten student, by striking him on the hands. In the presence of other students, respondent took him behind a classroom bookcase, told him to hold out his hands, and asked if he was going to slap them or would she have to do it. Several slapping sounds ensued, followed by the boy's cries. 4/ This occurred without respondent first taking Jeff to the principal'S office, without securing an adult witness, without advising the witness of the reason for the corporal punishment, and without filing the report form required by the School Board. (Testimony of Barker) Robert Myers. During 1982, respondent administered corporal punishment to Robert Myers, a kindergarten student, by striking him on the buttocks with a yardstick while he leaned across a desk. She struck him three or four times, the blows were hard enough to hurt, and the boy cried. (She admits that she "swatted him on the backside." Tr.-186) Respondent took this action in the presence of other students, without first taking Robert to the principal's office, without first securing the presence of an adult witness, without first advising the witness of the reason for the punishment, and without completing and filing the report form required by the School Board. (Testimony of Barker) V. Respondent's Violation of Rules and Orders Governing Administration of Corporal punishment Was Intentional Respondent's repeated violations of rules and orders governing corporal punishment support an inference that the violations constituted willful and intentional disobedience of lawful authority. When Mr. Hrstka became principal, Endress Barker--a teacher's aide and friend who worked closely with respondent--asked her not to do anything to jeopardize her (respondent's) job--not to spank children without following the procedures and filing the necessary reports. Respondent replied, "Well, we'll see." (Tr.-154) When this statement is considered together with her admission that she was aware of the corporal punishment procedures--procedures which were clear and definite, and which she repeatedly violated--the willful, even defiant, nature of her violations is convincingly established. The evidence supports a conclusion that she made a conscious decision to continue disciplining children in her own way, notwithstanding the contrary rules of the School Board and the orders of her principal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board sustain charges that respondent engaged in gross insubordination, violative of Section 231.36(6), but allow reinstatement on a probationary basis, conditioned upon her acknowledging her duty to comply with the lawful orders of her principal and the rules of the Board. DONE AND RECOMMENDED this 15th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1983.
The Issue Whether Respondent's suspension and termination from employment as a teacher by the Franklin County School Board was justified and, if not, whether backpay and attorney's fees should be awarded.
Findings Of Fact At the time of the incident that gave rise to this proceeding, Respondent, Webster Bozeman, was a teacher employed under a continuing contract at Carrabelle High School, Franklin County, Florida. Respondent had been employed by the Franklin County School Board from August 1985, until he was suspended on November 1, 1991. The Respondent was assigned to teach Physical Education (PE) classes for the 1991-1992 school year at Carrabelle High School, by the principal, Dr. J. Krawchuk. The Respondent had previously taught Social Studies from 1985 until 1989, and taught special education classes for two years, during 1989-90, and 1990-91. His teaching certification with the Florida Department of Education was in Social Science, with a designation for middle school. Mr. Bozeman was assigned to teach the Physical Education classes for the 1991-1992 school year because those classes were very free maintain control and discipline in more standard regular and special education classes. On September 6, 1991, Respondent's doctor had changed his medication from Triavil, a combined antipsychotic and antidepressant. The Triavil contained Trilafon, or perphenazine which is an antipsychotic used to modify psychotic abnormal behavior. The medication was changed because there was no indication that Respondent was overtly psychotic. Respondent remained on an antidepressant. However, the withdrawal of such an anti cause uncharacteristic aggressive behavior and the recurrence of any psychosis which the medication had been controlling. Approximately a week and one half later, on September 17, 1991, during Respondent's sixth period physical education class in the gym at Carrabelle High School, a group of eighth graders were sitting on the bleacher throwing wadded up paper. Lance Bockelman, a student in the class, was seated on the bleacher behind Respondent. Bockelman threw a piece of paper that struck Respondent on the left side of the head in the area of his ear. Although the evidence at the hearing demonstrated that Respondent was only struck by a wadded up piece of paper, either because his medication had been changed or because Respondent's eardrum already was traumatized, Respondent believed that he had been struck with something hard like metal. Respondent became angry and upset over being struck. Respondent ordered Bockelman to follow him to the locker room and Bockelman complied. The door between the gym and the corridor leading to the locker room closed behind them. Respondent told Bockelman to go over to the wall on one side of the corridor. Bockelman did not threaten Respondent but thought the incident a joke and exhibited laughter. Bockelman was also moving around although he wasn't trying to get away. In an attempt to discover what had hit him and to focus Bockelman's attention, Respondent grabbed Bockelman around the neck and pushed him up against the wall by putting his hands around Bockelman's collarbone area. Respondent began to inquire as to what Bockelman had thrown and was shaking his index finger at Bockelman, occasionally poking him in the chest. At some point, Respondent drew his fist back in a threatening, angry manner, saying, "I'll knock the shit out of you." Billy Dalton, a tenth-grade student, came from the locker room area into the corridor and observed Respondent holding Bockelman in a firm grip. Respondent appeared to be mad. Bockelman by then had realized the seriousness of the situation and was on the verge of tears. Dalton intervened by placing himself between Respondent and Bockelman, grabbing or tapping Respondent's raised arm and telling Respondent to cool off. Respondent let go of Bockelman and returned to the gym. At the point of Dalton's intervention, Respondent's physical contact with Bockelman had been minor and Respondent only threatened to use corporal punishment on Bockelman; Respondent never in fact used any corporal punishment against Bockelman, primarily because Dalton intervened. A group of students had followed Respondent and Bockelman and had gathered around the gym door, which was then open, and witnessed Respondent's actions. After Dalton interevened, Bockelman left the area and ran to where the buses pick up students. Maxine Taylor, a bus driver, saw Bockelman crying and walked him to the office where he spoke with the principal. Later, Principal Krawchuk conducted a conference with Bockelman's mother and Respondent. At the time of the conference, Mr. Krawchuk did not observe any outward signs of injury to Respondent, though Respondent began to complain that his head was ringing. Respondent also complained of ear pain caused by the object Bockelman had thrown. At the conference Bozeman denied any wrongdoing. However, at the hearing, Respondent admitted that pushing Bockelman up against the wall was not necessary. Respondent also admitted that his reaction to Bockelman's misbehavior was inappropriate. After the conference, Respondent filled out worker's compensation forms and visited Dr. Leslie Wilson. Dr. Wilson found an inflammation of the ear drum and prescribed antibiotics and pain medication. At a follow Wilson decided Respondent did not need to see a specialist. Dr. Wilson opined that the injury was the result of trauma, but could not determine the cause. Dr. Wilson also determined that Mr. Bozeman's ear drum injury resulted from "something hitting the head or actually hitting the ear drum." The injury to Mr. Bozeman could not have resulted from being struck by a piece of paper. Dr. Wilson's opinion was based, in part, on the information he had received from Respondent. Mr. Krawchuk, the principal, conducted an internal investigation of the incident. The investigation included searching the gym for any evidence of a hard object that could have been concealed in the paper Bockelman had thrown. Mr. Krawchuk was unable to find any such objects in the gym area. He had students who witnessed the incident write statements concerning this event. 1/ Krawchuk concluded that Respondent's actions were improper and amounted to excessive force and that Respondent's effectiveness would be diminished "quite a bit." He testified that the ability to keep order in a classroom and discipline students relates to effectiveness and that if a teacher could not keep students in line, the teacher was ineffective. Krawchuk also testified that using force against a child is a breach of a teacher's duty to protect the child's safety and health and violated the Code of Professional Conduct. The effect is to embarrass and demoralize the child, and has an adverse effect on the child's peers. He knew of no justification for physically touching a student in this situation. The appropriate response was to verbally reprimand the student and refer him to the office for discipline. Based on his entire investigation, Krawchuk recommended that Respondent be suspended without pay and then terminated. Krawchuk felt that Respondent could no longer be effective in the classroom, because he did not "have it within him now to deal with children." Mr. Ponder, the superintendent, agreed with Mr. Krawchuk and concluded that Respondent violated the Code of Professional Conduct by failing to protect the health, safety, welfare and learning environment of the students and that Respondent should therefore be terminated. He also concluded that Respondent violated the code by failing to preserve students from embarrassment and disparagement. Mr. Ponder believed that Respondent's actions amounted to misconduct in office because there would be concern or fear on the part of children later in that class. He testified that Respondent's actions seriously impaired Respondent's effectiveness in the classroom because Respondent's conduct was unprofessional, the students would be afraid and would lose respect for Respondent. Mr. Ponder also testified that an appropriate response to being hit by an object would be to send the student to the office. Once the student stops his bad conduct, there would be no justification for striking, touching or hitting the child. On the other hand, none of the students who testified offered any competent substantial evidence that there would be any ill effect to the students caused by Mr. Bozeman returning to teach. Indeed, Bockelman told another student, Jonathan Tindell, that he was not trying to get Mr. Bozeman fired, and did not want him fired on his account. In fact, the evidence showed that Respondent at the time did not have the respect of the students and was not very good at maintaining order in his classes. However, the evidence showed that Respondent's behavior prevented him from regaining any student's respect, thereby continuing his ineffectiveness as a teacher. Therefore, the evidence did demonstrate that Respondent remained ineffective as a teacher at least due in part to his conduct towards Bockelman. Franklin County does use progressive discipline for employees. However, an assault on a student is a severe infraction and at a minimum merits suspension under Franklin County's progressive disciplinary code. On the other hand, Respondent's disciplinary record shows no serious discipline being imposed other than peer help in maintaining better order and discipline in his classes. Based on these facts, the school board has demonstrated that Respondent committed misconduct in office by threatening the use of excessive force against Lance Bockelman. The evidence showed that Respondent's conduct was serious enough to continue his impaired effectiveness as a teacher. Therefore, the Board could have taken disciplinary action against Respondent. Finally, there were no mitigating factors shown by the evidence. Therefore, given the severity of Respondent's attempted use of force which was thwarted only by a student's intervention, termination is an appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Respondent be found guilty of violating Chapter 231.36, Florida Statutes, (1991), by committing an act of misconduct in office which seriously impaired his effectiveness as an employee of the school board and that his suspension without pay be upheld as well as his dismissal. DONE AND ORDERED this 2nd day of August, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 2nd day of August, 1994.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Philip James Chase, II, was employed under a continuing contract as a classroom teacher at Dunedin High School (DHS) in Dunedin, Florida. The school is under the jurisdiction of petitioner, School Board of Pinellas County (Board). During school year 1990- 91, respondent was a physical education and driver's education teacher and also served as wrestling coach. He has been an employee of the Board since 1975 and a teacher since 1971. The facts underlying this controversy are relatively simple. On December 18, 1990, respondent was seated at his desk in the DHS physical education office talking to two students. At the same time, several other students were in line to weigh themselves on a weight scale which was located a few feet from respondent's desk. After one student had jumped on the scale, respondent, without looking up, said to the students still in line, "on the scale gently, please". The next student in line, Derek Carson, ignored respondent's instructions and jumped on the scale causing a loud banging noise. Respondent rose out of his chair and at the same time gently swung his foot and hit Carson's buttocks. He also told Carson, "I told you gently, please." Carson immediately launched into a tirade of verbal obscenities at the top of his voice against respondent. Realizing that Carson was obviously upset, respondent initially ignored the remarks, but after the verbal abuse continued, he told Carson that he (Carson) ought to try to talk to him in that manner "on the street". Carson then departed. At no time did Chase become upset or lose his composure during the incident, and he drew praise for his cool demeanor from his department chairman who was an eyewitness to the incident. There is no competent evidence that Carson "reasonably interpreted" respondent's remarks as "fighting words" as charged in the suspension letter. 1/ Since the incident occurred in the presence of a number of students and two members of the faculty, it may be reasonably inferred from the evidence that Carson was embarrassed by the incident. The student then reported the incident to the principal, John McLay, who investigated the matter and initially concluded that respondent should be given a written reprimand. However, after McLay learned that Carson's grandparents (guardians) had filed a complaint with the Board, he turned the matter over to the Board for further action rather than handling it at the local school level. Because the Board's superintendent has proposed to increase the severity of the penalty from a reprimand to a three day suspension, Chase has requested this hearing. 2/ According to McLay, the faculty is given specific training at the beginning of each school year on how to resolve conflicts of this nature and is warned that a student may react negatively to physical discipline. He added that a teacher should never place his hands on a student for any reason unless the teacher is in fear of bodily harm or is trying to break up a disturbance among students. McLay also placed importance on how the student perceived the actions of the teacher. In other words, if the student perceived a light tap from the teacher as being deliberate or malicious when in fact the teacher was only kidding, McLay felt the action by the teacher would probably be unjustified. He agreed, however, that other factors, besides the student's perception of the incident, were also relevant to a final determination. McLay also emphasized the importance of teachers maintaining a good rapport with a student's parents since the education of the child required their cooperation. Further, the Board's director of personnel services, Steven Crosby, established that the incident undermined the parents' confidence in respondent. He characterized the action of respondent as "poor judgment" and one which diminished his effectiveness as a teacher. This testimony on the issue of teacher effectiveness is accepted as being more credible than that offered by a student and fellow teacher who testified on respondent's behalf. Crosby added that simply because Chase was a coach who worked in a more informal atmosphere than did other teachers did not excuse his conduct. Crosby noted that school policy generally calls for a three day suspension without pay for a teacher "who has struck a student". Although Chase had previously been given a reprimand for using poor judgment in 1988, Crosby felt that such a penalty was especially appropriate here without regard to the previous reprimand because Chase "had lashed out at a student, physically, out of frustration or during a time of upset." However, as noted in a prior finding, Chase did not tap the student on his buttocks out of anger or because of frustration. Two witnesses to the incident described the kick to Carson's buttocks as having insufficient force to cause any injury to the student. This was not credibly contradicted. Further, one witness characterized the kick as actually being a "tap" while the other stated he was under the impression respondent was kidding when he swung his foot towards the student. Respondent added that the kick was intended to be "negative reinforcement" after his verbal instructions were ignored. He now agrees that it was a mistake to touch the student in that manner and recognizes that he violated school policy. Other than the reprimand in 1988, respondent has an unblemished tenure with the school system. The Board has adopted a Code of Student Conduct (Code) which prescribes the type of disciplinary action permitted to be taken by school personnel against students. Section (7)(a) of the Code provides as follows: (7) DISCIPLINARY ACTION AND PROCEDURES: (a) TYPES OF DISCIPLINARY ACTION PERMITTED The following types of disciplinary action may be considered. 4. Corporal Punishment: For purposes of this code, corporal punishment shall refer to physical punishment (as) opposed to other forms of punishment. The use of corporal punishment is not permitted as a type of disciplinary action. (emphasis added) Thus, corporal punishment of any form is prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office and that he be given a written reprimand. DONE and ENTERED this 26th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of July, 1991.
The Issue Whether Annie L. Franklin's Florida Teaching Certificate should be subjected to the penalties provided for in Sections 231.262(6) or 231.28(1), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent, Annie L. Franklin, held Florida Teaching Certificate No. 115111. Ms. Franklin is certified in Elementary Education, Mental Retardation, Reading and Supervision. At all times relevant to this proceeding, Ms. Franklin was employed by the Escambia County School District. Ms. Franklin, after teaching for thirty years, is currently retired from the Escambia County school District. From 1982 until her retirement, Ms. Franklin was employed at Lincoln Park Elementary School (hereinafter referred to as "Lincoln"), in Pensacola, Escambia County, Florida. During the 1987-1988 school year, the Respondent taught fifth-grade students with emotional and mental handicaps. In November, 1987, a fifth-grade class taught by Gayle Parc, was lined up in the cafeteria at Lincoln. Ms. Franklin brought her class into the cafeteria after Ms. Parc's class had already formed a line. The students in Ms. Parc's class were standing in a line with spaces between them. The students were not misbehaving. Ms. Franklin ordered the students to move closer together so that there was no space between the children. When the students did not respond to Ms. Franklin's orders in a manner acceptable to her, Ms. Franklin began grabbing students by the arm and pushing and pulling them closer together. As soon as Ms. Franklin would turn loose of a student, the student would move back to his or her original position. Following Ms. Franklin's failed attempt to move Ms. Parc's class forward in the cafeteria line, Ms. Franklin began grabbing the students in her class and pushing and pulling them into the spaces between Ms. Parc's students. After Ms. Franklin had placed her students in line, she left the cafeteria. The students in Ms. Franklin's class went to the end of the line as soon as Ms. Franklin left the cafeteria. During the incident caused by Ms. Franklin in the cafeteria, Ms. Franklin pushed and pulled students, pinched one student, causing swelling on the student's arm which was treated with ice and alcohol, scratched one student, causing slight & bleeding which was covered by a band aid, and tore the shirt of one student. Following the incident in the cafeteria, some of the students were taken by Ms. Parc to report what had happened to the Principal of Lincoln. Ms. Franklin, upon learning that students had reported the incident to the Principal, went to Ms. Parc's classroom. Ms. Franklin went into Ms. Parc's classroom and demanded that the students who had reported the incident stand up to be identified. When the students complied with Ms. Franklin's demand, Ms. Franklin yelled at them, accusing them of being "vicious liars." Ms. Franklin also told the students that they would "burn in hell." Ms. Franklin was belligerent and intimidating to the students. It is not appropriate for faculty members to grab students or use physical force with students unless there is a need to break up a fight. The physical force Ms. Franklin used on the students during the cafeteria incident was inappropriate. In addition to the incident in the cafeteria, Ms. Franklin used inappropriate force with Tito Lett, a special education student in her class. On one occasion, Ms. Franklin threw a paddle at Tito. She did not hit him. On another occasion, Ms. Franklin hit Tito on the arm and back with a paddle, causing a welt on his back. Ms. Franklin also would not allow Tito to come back into the classroom on occasion and would yell at him. Ms. Franklin also paddled other students at Lincoln. For example, Ms. Franklin paddled Karen Mosley Walker with a yardstick and a wooden paddle. Faculty members have been told, during various workshops, preplanning and postplanning sessions at Lincoln which were attended by Ms. Franklin, that there is a "no hands on" discipline policy and that all students are to be referred to the Principal for any type of corporal punishment. Ms. Franklin was not given permission by the Principal at Lincoln to administer corporal punishment. It was inappropriate for Ms. Franklin to strike students with a yardstick or paddle. Ms. Franklin received a written reprimand dated September 7, 1984, from the Principal of Lincoln for screaming at kindergarten students. This behavior was inappropriate. Ms. Franklin also received a written reprimand dated April 21, 1983, for improper use of corporal punishment. On January 13, 1983, Ms. Franklin was suspended by the Escambia County school District for "misconduct in office, willful neglect of duty and gross insubordination." As a result of Ms. Franklin's behavior, several students and faculty members at Lincoln are afraid of Ms. Franklin. Faculty members are concerned for the safety of students who come into contact with Ms. Franklin and for their own safety. Ms. Franklin's actions at Lincoln, as described in this Recommended Order, have seriously reduced Ms. Franklin's effectiveness as a teacher. Ms. Franklin, in yelling at students and inflicting physical injury on students, has created conditions harmful to students' safety and their ability to learn. Ms. Franklin, in yelling at the students in Ms. Parc's class, caused embarrassment and was disparaging to the students. Ms. Franklin used inappropriate physical force with fifth-grade students under the circumstances found in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Franklin be found to have violated the provisions of Section 231.28(1)(f), Florida Statutes. It is further RECOMMENDED that Ms. Franklin be found to have violated the provisions of Rule 6B-1.006(a) and (e), Florida Administrative Code, in violation of Section 231.28(1)(h), Florida Statutes. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Franklin violated the provisions of Rule 6B-1.006(5)(d), (e) and (m), Florida Administrative Code, be dismissed. It is further RECOMMENDED that Ms. Franklin's Florida Teaching Certificate be permanently revoked. DONE and ENTERED this 6th day of January, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1989. APPENDIX CASE NUMBER 88-4567 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The majority of the Petitioner's proposed findings of fact constitute summaries of testimony and what transpired at the administrative hearing. To the extent that summaries of testimony support findings of fact made in this Recommended Order, the paragraph of the finding of fact will be preceded by "See." The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 4. 3 5-6 4 Summary of testimony and the administrative hearing. 5 7. See 8-9. 6-10 See 10. 11 See 8. 12 See 8, 10 and 13. 13 Cumulative and unnecessary. 14 11. 15 See 12. 16-17 Cumulative and unnecessary. See 10. Cumulative and unnecessary. Irrelevant. See 14. 22 See 14-15. See 14. See 15. See 14. See 19. 27 20. See 21. Hereby accepted. See 22. See 16. See 13. See 17. 34-35 Cumulative and unnecessary. 36 23. 37 24. 38 25. 39-40 Not supported by the weight of the evidence. 41 26. COPIES FURNISHED: Betty J. Steffens, Esquire 106 South Monroe Street Tallahassee, Florida 32301 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Annie L. Franklin 2820 Bayview Way Pensacola, Florida 32503 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
The Issue The issue in this case is whether a district school board is entitled to suspend a teacher without pay for just cause based principally upon the allegation that he slapped a student.
Findings Of Fact 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 Larry J. Williams ("Williams") had been employed as a teacher in the Miami-Dade County Public School System for approximately 16 years. At all times relevant to this case, Williams was assigned to Parkway Middle School, where he taught students with disabilities. The events giving rise to this case occurred on January 30, 2004. About 20 minutes into one of Williams' sixth grade classes that day, the assistant principal brought a student named J. L. into the room. (J. L. had been roaming the hallways without authorization.) Upon his late arrival, J. L. took a seat, put his head down, and promptly fell asleep. Williams walked over to J. L.'s desk and shook it, asking J. L. if he were all right. Evidently startled, J. L. jumped up and shouted at Williams: "What the fuck are you doing? You ain't my daddy, you black ass nigger," or words to that effect.1 Williams, who is a black man, was taken aback. "What did you say?" he replied. "What the fuck are you bothering me for, you black ass nigger?" answered the student, who was now standing close to Williams. At that point, Williams quickly pushed J. L. away. Williams made physical contact with J. L. and probably touched his face or head. This contact was, it is found, more of a shove than a blow.2 J. L. then left the classroom and went to the office, to report that Williams had hit him.3 After J. L. had left, a student remarked, "Oh Mr. Williams, you [sic] in trouble now." Not wanting to lose control of his classroom, Williams tried to downplay the incident, telling the student that nothing had happened. The undersigned rejects as unfounded the School Board's allegation that Williams told his class to lie about the matter. Before the period was over, the school administration, acting on the word of J. L, a student who less than an hour earlier had been wondering about the halls and hence needed to be hauled into class by an assistant principal, pulled Williams out of his room and sent him home.4 Williams was not allowed to return to work until September 23, 2004. He therefore missed about seven months of school, namely the remainder of the 2003- 04 school year plus the beginning of the 2004-05 school year. For using vulgar language and brazenly insulting Williams with a hateful racial epithet, J. L. was suspended for five days. At its regular meeting on June 16, 2004, the School Board voted to accept the recommendation of Williams' principal that the teacher be suspended without pay for 30 workdays. (This means docking six weeks' worth of Williams' wages, or 12 percent of his annual salary.) Ultimate Factual Determinations Williams did not fail to make a reasonable protective effort to guard J. L. against a harmful condition, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Williams did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Williams' conduct on January 30, 2004, did not entail threats, threatening behavior, or acts of violence. Therefore, he did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. Williams committed a technical violation of School Board Rule 6Gx13-5D-1.07, pursuant to which the administration of corporal punishment is strictly prohibited. This violation was not so serious, however, as to impair Williams' effectiveness in the school system. Accordingly, it is determined that Williams is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order rescinding its previous decision to suspend Williams without pay; awarding Williams back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate; and directing that a written reprimand for violating the corporal punishment rule be placed in Williams' personnel file. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2004.
The Issue The issue in this case is whether Respondent, Jean Berrouet, committed the violations alleged in the Notice of Specific Charges and, if so what disciplinary action should be taken against him.
Findings Of Fact Jean Berrouet (Berrouet) has worked at Lakeview as a teacher from 1992 through October 2006 in Miami-Dade County Florida. He taught Haitian Creole to the ESOL students from Haitian background as well as basic science, social studies, and mathematics to the ESOL Level 1 and 2 Haitian Creole students. On or about June 1, 1998, Berrouet was officially reprimanded for using corporal punishment in disciplining students. He was specifically directed by memorandum "immediately to refrain from using physical means to affect student behavior" by Lakeview Principal, Edith Norniella. Berrouet's licensure was also previously subjected to disciplinary action in Florida. He was reprimanded by the Education Practices Commission for inappropriately disciplining a student in class by hitting a student with a pointer. On or about April 23, 1999, the Education Practices Commission placed Berrouet on two years of probation with the following terms: acceptance of a written reprimand, yearly probation fees of $150.00, completion of a three credit course on classroom management, participation in the recovery network program and prohibition from violating any laws as well as fully complying with all district school board regulations, school rules and State Board of Education Rule 6B-1.006. Prior to starting the 2006-2007 school year, Berrouet attended an in-service meeting at Lakeview where school policies were reviewed including student behavior, the code of conduct, and corporal punishment. Berrouet was also provided a Lakeview Elementary School Staff Handbook that included specific guidelines and procedures for student behavior including discipline. As a School Board employee, Respondent was expected to conduct himself in accordance with School Board rules. Respondent holds professional teaching certificate 677708 issued by the Florida Department of Education (DOE). His certificate is valid through June 30, 2009. Berrouet only teaches Haitain Creole students. Since 1992, he has used a technique to help the Haitian Creole students try to transition into the American culture and focus them on their lesson. The technique included Berrouet touching the students' ears to get their attention and saying "You have two ears, not one. You have one mouth, not two . . . So you should do more listening than talking." No parent ever complained about the technique to Berrouet or the Administration. Additionally, no administrator ever addressed that there was a problem with the technique Berrouet performed. The technique is not a punishment. Berrouet even used the technique at least once in the classroom on a student while being observed by the principal. Berrouet's testimony is more credible than the children because he has been using the focusing technique for 14 years, been observed by an administrator using the technique and it was never brought to his attention that it was inappropriate. On October 9, 2006, during the last period of the day, Berrouet had approximately 30 students in his mathematics tutorial after-school class from 5:00-6:00 p.m. His actual classroom size assignment was 15. However, a teacher had left early for the day and the other teacher's students were in Mr. Berrouet's classroom for him to oversee, even though the additional 15 students were permanently assigned to the teacher's classroom who had left early. An altercation occurred in Berrouet's classroom at approximately 5:45 p.m. between two students from the other class, A.B. and M.L. A.B ran behind Berrouet, who was standing at the door and asked Berrouet to help protect her from M.L. M.L. was running after A.B. Berrouet put his hand up and directed M.L. to go back to her seat. However, M.L. kept chasing after A.B. running toward Berrouet into his outreached arm and hand with her upper body (to the chest, neck or shoulder). A.B. left the room. Berrouet stood between A.B. and M.L. at the doorway to prevent M.L from going after A.B. M.L. continued to try to push through Berrouet trying to get to A.B. The incident took a few seconds. Berrouet did not make any effort to activate the button to call the office about the incident. If he had left the doorway to go across the classroom to push the office button, M.L. would have had access to attack A.B. Berrouet standing in the doorway was the only barrier preventing M.L. from reaching A.B. After Berrouet told M.L. to sit down and she was unable to get pass Berreout to A.B., she went to her seat and cried. M.L. cried because she was upset and couldn't get to A.B. Berrouet kept A.B outside and allowed another student to get her book bag and take it to her so she could leave for the day. Berrouet kept M.L. in the classroom a few minutes after A.B left to ensure that A.B. was gone and no further interaction would occur between the girls. Berrouet was not aware of the earlier kicking incident between M.L. and A.B. He first became aware of a problem between the girls when A.B. ran behind him for help. Berrouet did not write up a Student Case Management Referral Form since he had no knowledge of the kicking incident and because he thought he had diffused the potential altercation by him standing between the students. Berrouet's testimony and that of M.L. is deemed more persuasive then that of the other children witnesses. As the parties were directly involved in the incident, Berrouet and M.L. provided the most competent, credible testimony about the disputed matters. On October 10, 2006, the next morning after the incident, M.L.'s mother showed up with M.L. at Lakeview to meet with Mr. Jeffrey Hernandez, the principal. M.L.'s mother reported that Berrouet had grabbed M.L. by the neck on the previous day. Hernandez completed a Miami-Dade County Public Schools School Operations Incident Report regarding the matter. Berrouet was provided a memorandum dated October 10, 2007, entitled Notification of Allegation. Subsequently, the School Board of Miami-Dade County at a meeting on March 14, 2007, suspended Berrouet without pay and initiated dismissal proceedings. On May 3, 2007, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board policies regarding corporal punishment and responsibilities and duties.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner enter a final order dismissing all charges against Respondent and Miami-Dade County School Board reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 9th day of October, 2007, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 9th day of October, 2007. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Rudolph F. Crew, Superintendent Dade County School Board 1450 Northeast Second Avenue No. 912 Miami, Florida 33132-1308 Jeanine Blomberg, Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner established "just cause" to terminate Respondent from her teaching job.
Findings Of Fact Ms. Harter is a special education teacher in the School District. She is a long-time Polk County, Florida, resident and has worked for the School District since 1985. The School Board is responsible for the operation, control, and supervision of free public schools in Polk County, Florida. On December 10, 2010, Ms. Harter entered a guilty plea for leaving the scene of an accident, which is a third-degree felony, and resisting or obstructing an officer without violence, which is a first-degree misdemeanor. The circuit court withheld adjudication and sentenced Ms. Harter to 36 months’ probation on the felony charge, a short period of incarceration in the county jail, community service, fines, and restitution. As of the hearing date, Ms. Harter had successfully completed her community service hours and was successfully completing the remainder of her probation. Polk County School Board Policy 6Gx53-3.001 (School Board Policy 3.001) sets out the Employment Procedures followed by the School Board. In pertinent part, School Board Policy 3.001(V)(C)(4)(a), provides that: "criminal offenses listed below will render applicants and employees ineligible for employment with Polk County Public Schools. WILL NOT HIRE OR EMPLOY -- Felony convictions including, but not limited to the following: . . ." The School Board Policy then lists 49 enumerated crimes that specifically make a person ineligible for employment. School Board Policy 3.001(V)(C)(4)(d)4, also provides that a person may be considered for employment with the School District on a "case-by-case basis" when a person is "on probation [for] (Crimes not listed above)." Mr. Farinas, the School District director of employee relations, credibly testified that, it is the School Board's practice to automatically terminate employees who plead guilty to a felony charge, no exception. The School Board does not employ anyone who has a felony conviction. Further, the School Board, in considering whether or not to grant a "case-by-case" analysis for employing a person who has been convicted of an offense not listed in the School Board Policy, has limited its consideration to misdemeanors. The record, however, shows that the School Board has not been presented the question of whether or not to consider a person for continued employment, who has a felony conviction for a crime not listed in the School Board Policy and is serving a probationary sentence. Ms. Harter has worked for the School District in many different capacities since 1985. It was undisputed that Ms. Harter was an exemplary special education teacher, who is respected by her peers and students. Ms. Harter has a long, successful record of working with emotionally-handicapped students. As Mr. Darby, an assistant principal who supervised Ms. Harter stated, "without Julie's influence, a lot of those students would have never made it through high school." It was undisputed that Ms. Harter is a "very dedicated and responsible teacher." For example, Ms. Whiteley credibly testified that Ms. Harter "knew all of her students, knew everything about her students, and worked very hard to get them to be successful, and also job placements." The record clearly shows that Ms. Harter is a dedicated special education teacher who loved her students and did an excellent job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the School Board established "just cause" to terminate Ms. Harter and that Ms. Harter's employment be terminated. DONE AND ENTERED this 14th day of July, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 14th day of July, 2011.
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
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 Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she 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 two material witness's respective 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 the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily 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 her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
