The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 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 31st day of July, 2006.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petitioner's Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto and since 1980, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. She was assigned to Pine Lake Elementary School for the 1992-93 school year. She is familiar with the School Board's rules regulating employee conduct and prohibiting the use of corporal punishment. Prior to the 1992-93 school year and as a result of complaints from parents, Respondent was given written directives, reasonable in nature and given by and with proper authority, to desist from using abusive, sarcastic, and disparaging language with elementary school children. Those directives specifically reminded Respondent of her obligation as a teacher to not intentionally expose students to unnecessary embarrassment or disparagement and to avoid using abusive language in the presence of children. She was also cautioned against the use of intimidation and ridicule. Prior to the 1992-93 school year Respondent received another written directive, reasonable in nature and given by and with proper authority, to refrain from intimidating or being disrespectful to other employees. Respondent was further specifically ordered to stop directing profanity at members of the staff and to avoid situations that result in confrontations. In December of 1992 a fight broke out between Respondent's son and Tony, another elementary school student, while they were in the breakfast line in the school cafeteria. Frederick Collins, the route salesman for Velda Farms Dairy, was delivering milk to the cafeteria and saw the two boys fighting. He put down his milk so he could stop the fight. As he ran toward the two boys, he saw Respondent, whom he knew to be a teacher at that school, running toward the two boys. Respondent got to the boys first. Respondent grabbed Tony around the neck with both hands and began choking him and shaking him. Respondent was choking Tony so hard that his tongue was out of his mouth. She was hysterical and kept screaming at Tony over and over again about him "messing" with her son. Collins reached Respondent and tried to pull her away from the frightened child. By that time, Moses Holcomb, the head custodian at the school, had heard the noise and the other children calling to him to come help. He ran to where Respondent was choking and shaking the child, and together Holcomb and Collins were able to separate Respondent from Tony. Even after the two men were able to pull Respondent away from the child, she tried to get to him again. Holcomb had to physically get between Respondent and Tony, and Collins had to physically hold her to prevent her from grabbing Tony again. Tony did not kick at Respondent during the altercation. Further, Tony did not flail his arms at her and did not try to hit her. He was passive during the entire time that she was choking and shaking him and screaming at him. Holcomb took Tony to the principal's office and reported Respondent's conduct to the principal. When the principal spoke to Respondent about her attack, Respondent admitted hitting, choking, and shaking Tony. Respondent's attack on Tony was observed by students, parents, faculty, and staff members. Collins expressed his shock at seeing a teacher behave in such a manner. The incident became widely known. On January 20, 1993, Respondent's son and the son of Cynthia Williams, another teacher at Pine Lake Elementary School, fought with each other. After the fight, Mrs. Webb, the assistant principal, spoke to Williams and to Respondent and explained that she had investigated the circumstances of the fight, that Respondent's son had started the fight, and that the Williams boy had only defended himself. On the following day, Cynthia Williams waited for the school bus to bring her son from his nearby school to Pine Lake Elementary. When she saw Respondent also waiting for the bus, she knew there would be trouble based on Respondent's reputation and past behavior. Williams asked another teacher to wait with her. When the bus came, Williams and the other teacher walked over to the bus to get Williams' son. Respondent approached them and it was apparent that Respondent was very angry. She began grilling the Williams boy as to why he had been fighting with her son. Mrs. Williams calmly told Respondent that she would take care of it and would speak to her son after they got home. Respondent continued grilling the boy in a very threatening and intimidating manner and shaking her finger in Mrs. Williams' face. As Williams and her son began backing away from Respondent, the other teacher ran to get a principal. As a result of her aggressive behavior, Respondent was given another written directive ordering her to stop intimidating and abusing other faculty members and to conduct herself in a professional manner. Respondent was subsequently given an alternate assignment and was relieved of her teaching duties at Pine Lake Elementary School. In April of 1993 in the late afternoon Respondent returned to Pine Lake to pick up her personal belongings. When she encountered Williams, she told Williams "this isn't over" in such a threatening manner that Williams reported that incident to the principal at Pine Lake Elementary. The principal wrote a letter to Respondent ordering her to stay away from that school. During the week of November 9, 1992, Respondent was on jury duty. Although the courthouse was closed on November 11 and Pine Lake Elementary School was open, Respondent failed to report for work at the school. Instead, she falsely claimed that she had been on jury duty the day the courthouse was closed, in order to receive her regular pay from the School Board. When the principal discovered Respondent's false report, she instructed the staff to report Respondent as having taken a personal day rather than reporting Respondent as having been on leave without pay in order that they could avoid the expected confrontation by Respondent. Yet, in spite of the principal's attempt to be very fair with Respondent, Respondent thereafter kept harassing the attendance staff to pay her for that day. On March 1, 1993, a conference for the record was conducted with Respondent by Dr. Joyce Annunziata, the director of Petitioner's Office of Professional Standards. Because of Respondent's history while employed by Petitioner, she was placed in an alternate work assignment and referred for a medical evaluation to determine her fitness to carry out her duties. The clinical interview and psychological testing revealed that Respondent has difficulty handling stress, avoids dealing with problems, and blames others when problems occur. She has paranoid tendencies and is defiant of authority. Her personality structure is stable, and she is unlikely to change. She should not be in a teaching position but should be in a position where stress is unlikely to occur. Further, Respondent's difficulties with stress, with authority figures, and with co-workers existed well prior to the occurrence of Hurricane Andrew and are not attributable to stress following the hurricane.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed against her in this cause, suspending her without pay up to the date of termination, and terminating her employment by the School Board of Dade County, Florida. DONE AND ENTERED this 21st day of December, 1993, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2452 Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law and recitation of the testimony. Respondent's proposed findings of fact numbered 1, 16, 21, and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-5, 8, 9, 11-15, 19, 20, and 23-29 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 6 and 10 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact number 7 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 17 and 18 have been rejected as being not supported by the weight of the credible evidence in this cause. COPIES FURNISHED: James C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One 2929 Southwest Third Avenue Miami, Florida 33129 Octavio J. Visiedo, Superintendent School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district. The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district. As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record. DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida. Joyous D. 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 27th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637 Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board: The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand. Paragraph 12 is rejected as irrelevant. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted. Paragraph 17 is rejected as irrelevant. Paragraph 34 is rejected as argument or comment. Paragraph 35 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant. Paragraph 47 is rejected as vague or argument. Paragraphs 49 through 52 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor: The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. Paragraph 13 is rejected as irrelevant. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted. Paragraph 33 is rejected as contrary to the weight of the credible evidence. Paragraph 39 is rejected as argument. Paragraph 40 is rejected as argument. Paragraph 46 is rejected as argument or vague. Paragraphs 48 through 51 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force. Paragraph 9 is rejected as irrelevant. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant. Paragraph 15 is rejected as argument or irrelevant. Paragraph 16 is rejected as argument or irrelevant. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant. Paragraph 19 is rejected as unnecessary comment. Paragraph 20 is rejected contrary to the weight of credible evidence. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant. Paragraph 27 is rejected as speculative, irrelevant, or argumentative. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argumentative and irrelevant. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 34 is rejected as contrary to the weight of the credible evidence. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 36 is rejected as irrelevant or argument. COPIES FURNISHED: Tobe Lev, Esq. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Roseanna J. Lee, Esq. Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN 390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde, Exec. Dir. 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether Respondent committed the offenses set forth in Administrative Complaint and, if so, what penalties should be imposed?
Findings Of Fact Respondent holds Florida Education Certificate No. 670247 and has been employed in the Bay County School system for 10 years. At all times material to this proceeding, Respondent was employed as a teacher at A.D. Harris High School, an alternative school for students who have problems in main stream high schools in the Bay County School District. Respondent has received satisfactory evaluations with no areas requiring improvement during his eight-year tenure at the High School. M.M., a female student at A.D. Harris High School from eighth grade through twelfth grade, graduated from the high school in June of 1998. During her eleventh-grade year (school year 1996-1997), M.M. was in Respondent's first period media production class and also in his homeroom class. M.M. made good grades in the class and was not a disciplinary problem. Anita Goodman is the principal of A.D. Harris High School. Students frequently discuss their personal problems with teachers and Goodman has encouraged relationships of trust between students and teachers. She cautions teachers, however, to be careful in the course of such activity, particularly with regard to male teachers providing counsel to female students on a one-to-one basis since often any resulting accusations become a credibility issue of student versus teacher. Notwithstanding Goodman's advice, Respondent became the confidant of M.M. during the course of the school year. When M.M., who is white, initiated a discussion with Respondent concerning the difficulties of her relationships with the black boys she was dating, Respondent told her to try dating white boys since she was having trouble with the black male students. Some time later, allegations were made by M.M., to the effect that Respondent spoke with her on two occasions and made denigrating comments about her associations with black males. These allegations by M.M., surfaced weeks after the alleged occurrences and after referral of M.M.'s boyfriend, J.W., to the office by Respondent for fighting (a fact corroborated even by M.M.). Based upon her demeanor, M.M.'s testimony is not otherwise credited. Conversely, Respondent is the father of two adopted children of Korean lineage who socialize with black and white teenagers. Students of both races are jointly entertained in Respondent's home. Respondent has no history of using racially derogatory terms in school or at home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of May, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 19th day of May, 2000. COPIES FURNISHED: H. B. Stivers, Esquire Law Offices of Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 J. David Holder, Esquire Post Office Box 489 Defuniak Springs, Florida 32435 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of January, 1985.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Frank T. Brogan, as the Commissioner of Education, is the state official charged with investigating complaints against teachers and, upon a finding of probable cause, with filing formal administrative complaints against teachers' certificates. Section 231.262, Fla. Stat. The Education Practices Commission is the state agency charged with the responsibility for issuing final orders and imposing penalties. Id. At all times material to this case, Loretta L. Young held Florida Educator's Certificate 591375, covering the area of biology. Ms. Young currently holds this certificate, which is valid through June 30, 1999. During the 1993-1994 school year, Ms. Young was employed as a science teacher at North Dade Middle School in Dade County, Florida. During that school year, she taught a seventh-grade science class which consisted mostly of African-American children. A male student named C. M. was a member of this class. This seventh-grade science class was large, and the students were very unruly. Ms. Young had a very difficult time controlling the class, and she often became irritated with the students. In addition, the students used to ignore her when she told them to be quiet, and they would "pick at her" and make derogatory comments about her to one another in voices pitched loud enough for her to hear. On March 14, 1994, C. M. was in the back of the classroom playing cards and gambling with several other students. Ms. Young told C. M. to stop gambling. C. M., who was described as a bad student who was consistently disrespectful to Ms. Young and generally disruptive in her classroom, reacted to this order with anger. He walked to the front of the classroom and tapped her on the shoulder. She turned around quickly and struck C. M. in the stomach with her elbow. C. M. loudly accused her of hitting him and threatened to go to the office and tell what she had done. Ms. Young sent a student to summon security, and C. M. was removed from the classroom. Ms. Young consistently referred to the students in her class as "niggers." One of the students who testified at the hearing gave the following as an example of the remarks Ms. Young often made: "Ya'll niggers, ya'll niggers don't know how to act, ya'll don't have no home training." Although children sometimes refer to each other as "niggers," the use of such an epithet by a teacher when addressing students is unprofessional; it causes students to feel uncomfortable in the teacher's classroom, thereby diminishing the teacher's effectiveness. Even Ms. Young admitted that the term "nigger" is derogatory and degrading. It is not acceptable for a teacher to hit a student. Not only does such an act expose the student to physical harm, it diminishes the teacher's effectiveness in the classroom and is in violation of school board policy. There is, however, no violation of school board policy when a teacher inadvertently touches or bumps into a student. The evidence presented by the Commissioner is sufficient to establish that Ms. Young often addressed the students in the seventh-grade science class identified herein as "niggers." The evidence presented by the Commissioner is not, however, sufficient to establish that Ms. Young intentionally hit C. M. in the stomach with her elbow. The greater weight of the evidence presented by eyewitnesses to the event involving C. M. establishes that C. M. startled Ms. Young when he approached her from behind and tapped her on the shoulder, causing her to turn quickly and inadvertently strike him in the stomach.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding that Loretta L. Young violated section 231.28((1)(i), Florida Statutes, and rule 6B-1.006(3)(e), Florida Administrative Code, and placing Ms. Young on probation for a period of three years, subject to such conditions as the Commission deems appropriate. DONE AND ENTERED this 5th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1997.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled “Notice of Termination of Employment Contract and Immediate Suspension Without Pay” (the “Notice”) from Superintendent of Schools Nikolai P. Vitti to Respondent dated August 30, 2013.
Findings Of Fact Respondent Michael Green has been employed by the School Board as a teacher since 2004. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, chapter 21197, Laws of Florida (1941), as amended (“Tenure Act”) and the Collective Bargaining Agreement (“CBA”) between Duval Teachers United and the School Board for 2008- 2011. At the time of the events at issue in this proceeding, Mr. Green was assigned to Butler Middle School as a health and physical education teacher and athletic director. At the time of the incident in question, which was at the beginning of the 2013-2014 school year, S.J. was a 14-year- old girl who was a student at Butler Middle School. She was starting her second year in the seventh grade. Based on the security video that was admitted into evidence, S.J. was very large for her age, nearly the size of Mr. Green. Principal Maurice Nesmith knew S.J. and characterized her as one of the worst of the 588 students at Butler Middle School. S.J. had a documented history of disciplinary problems for threats and acts of violence and for verbal and physical aggression toward other students, staff, teachers, and even administrators at Butler Middle School. Mr. Nesmith frequently received complaints from teachers, administrators and staff that S.J. was rude, disrespectful, defiant, and resistant to instruction. School security guard Javonne Johnson testified that he was familiar with S.J. and frequently had to deal with her because she would be outside of her assigned classroom without permission. Mr. Johnson stated that it was hard to make S.J. calm down when she was agitated. On January 30, 2013, S.J. caused what Mr. Nesmith’s Discipline Incident report termed “a major disruption” in the Butler Middle School cafeteria. S.J. was angered when a smaller male student snitched on her for throwing food. She commenced hitting the child in the head. She punched him several times before a security guard and assistant principal could intervene. S.J. then proceeded to fight the adults until they managed to corral her into Mr. Nesmith’s office. According to Mr. Nesmith’s report, S.J. stated to him that “she didn’t give a fuck, she don’t care about this shit.” Officer Frederick Robinson of the DCPSPD submitted a written statement confirming that S.J. told the adults, “I don’t give a fuck about nobody, I don’t give a fuck about the police,” and “No one is going to tell me what the fuck to do or say.” As a result of this incident, and many before it, Mr. Nesmith referred S.J. to an alternative school for the remainder of the 2012-2013 school year. Mr. Nesmith testified that when S.J. returned to Butler Middle School for the 2013-2014 school year there was no change in her behavior. Though she was not disciplined for her role in the incident with Mr. Green, S.J.’s return to Butler Middle School was nonetheless short-lived. By early October 2013, S.J. had again been referred to an alternative school because of repeated incidents, including one in which she threatened to kill another student (“I got bullets for your ass”). The School Board placed into evidence video taken by security cameras in the gym and in the hallway outside the gym. There is no sound on the videos. Visual aspects of the findings as to events in the gym and in the hallway on the morning of August 28, 2013, are mostly based on the security video. Findings as to what was said in the gym and in the hallway that morning are based on the credible testimony of witnesses. Brittany Knadle is a first-year physical education teacher assigned to Butler Middle School. On August 28, 2013, she taught a large physical education class of approximately 60 students during first period in the school’s gymnasium. S.J. was enrolled in Ms. Knadle’s first period class. Although it was only the second week of school, Ms. Knadle was already having problems with S.J.’s truculence and had complained to Mr. Nesmith about S.J.’s behavior in her class. On August 28, 2013, S.J. was disrupting Ms. Knadle’s class, wandering through the lines of students who in the security video appear to be lackadaisically performing calisthenics on the gym floor. Mr. Green entered the gymnasium in his capacity as athletic director to ask Ms. Knadle about coaching a sport. Ms. Knadle agreed to coach softball. Mr. Green testified that Ms. Knadle told him that she was having problems with S.J.’s refusal to follow directions. Mr. Green advised her to make S.J. stand against the wall and to give her a grade of zero for the day for nonparticipation in the class activity. Mr. Green stated that he had never met S.J. prior to August 28, 2013, but that he had heard about her physical assault on an administrator and had heard she was rude, disruptive, and disrespectful to authority figures. Mr. Green left the gym but returned a short time later with a form for Ms. Knadle to sign regarding the softball coaching position. Mr. Green observed S.J. continuing her disruptive behavior, wandering around the gym, walking through student lines and not participating in class. Mr. Green believed she was creating a safety hazard for the other students. He instructed S.J. to gather her belongings because he was taking her to the dean’s office. S.J. slowly strolled to the spot on the gym floor where her backpack lay. She stood over the backpack and then rummaged through it for several seconds. She then picked up the backpack and walked toward Mr. Green to exit the gym. Mr. Green testified that while S.J. had been belligerent and cursing during the entire incident, she appeared even more irate, threatening and confident after picking up her bag, saying to him and Ms. Knadle, “You all are going to make me fuck one of you up.” The security video shows S.J. and Mr. Green exiting the gym and into the school hallway. Mr. Green places his hand on S.J.’s shoulder. She walks straight across the hallway to the opposite wall. S.J. turns to face Mr. Green and drops her backpack. Mr. Green moves to within inches of S.J., very nearly nose to nose. At this point, S.J. pushes Mr. Green away with both hands. Mr. Green responds with a right hand strike to S.J.’s face. The blow appears to be a glancing one. S.J.’s head snaps to the right but she quickly recovers and moves toward Mr. Green with her arms flailing. Mr. Green backs up a step or two, braces himself with his right foot, draws back his right hand into a fist, then pushes off the right foot to deliver a full- force punch to S.J.’s face. S.J.’s head snaps violently back to the right and she staggers backward into the wall. Remarkably, S.J. once again shakes off the blow and again charges forward toward Mr. Green. At this point, Mr. Green wraps S.J. in his arms and takes her down to the floor. He holds her down for a few seconds until security arrives to take over. Mr. Johnson was the guard who took over and restrained S.J. He tried to calm her but she continued to yell and scream, cursing and threatening Mr. Green, saying she was going to “kick his ass.” Mr. Johnson noted no marks on S.J.’s face and refused to believe S.J.’s repeated statements that Mr. Green “hit a girl . . . he hit me in my face.” Officer Robinson of the DCPSPD handcuffed S.J. and placed her in the back of his patrol car to await arrest. Mr. Nesmith, who was visiting an upstairs classroom, was called via walkie-talkie and informed that Officer Robinson needed him. Mr. Nesmith came down immediately and spoke to Officer Robinson at his patrol car. Officer Robinson told Mr. Nesmith that he was arresting S.J. for battery on a School Board employee, and explained what happened in the hallway. Mr. Nesmith told Officer Robinson that there was a security camera in that hallway. They had a security guard wait outside with S.J. while they went inside to view the security video with Mr. Green, who had been waiting in Mr. Nesmith’s office. The three men reviewed the video. Mr. Nesmith testified that when he saw the video, he dropped his head and asked Mr. Green, “What were you doing?”1/ Mr. Nesmith immediately contacted the School Board’s professional standards office and his region chief to report the incident. He then took Mr. Green to the principal’s conference room and instructed him to write a statement. The statement that Mr. Green wrote in Mr. Nesmith’s conference room read as follows: I, Michael Green, entered the gymnasium to speak with Coach Knadle. At the time [S.J.] a student in Coach Knadle’s class was causing a disruption. The student was standing walking through the students cursing as they were sitting in roll call on the floor. [S.J.] was asked to get her books so I could escort her to the office to settle down. She began cursing loud causing a seen [sic] as she walked out of the gymnasium. I then stopped her in the hallway to keep her from cursing loud disrupting the learning environment. As she stopped in the hall she continued to curse and yell at me, saying fuck you, you ain’t nobody. I told her to quiet down and she pushed me. Then she started to swing at me. In my defense I tried to stop her arms from hitting me. I tried to keep her at a distance. She stopped for second [sic] then she started to attack me again. I then had to take her to the ground to keep her from attacking me. It is notable that this statement makes no mention of the fact that Mr. Green struck S.J. in the face twice during the altercation. Mr. Green would later contend that he feared S.J. had a weapon when she attacked him, but he made no mention of such a fear in this statement, written within two hours after the incident. Mr. Green was taken into custody by DCPSPD for suspected child abuse. He was interviewed by Detective Don Schoenfeld, who had reviewed the security video. Mr. Green told Detective Schoenfeld that he did not remember hitting S.J. After the interview, Detective Schoenfeld had Mr. Green write a statement.2/ Mr. Green’s statement to Detective Schoenfeld read as follows: I Michael Green entered the gymnasium3/ to speak with another teacher. The teacher was having difficulty getting the student to follow directions. The student began to walk around and throughout the other students causing a safety issue. The student was asked to gather her belongings so that I could escort her out of the gymnasium and to the office where she could calm down. The student began to curse using all kinds of profanity as she exited the gymnasium. Once entering the hallway the student continued to talk loud and curse causing a comotion [sic]. I approached the student to keep her from running and acting wild and crazy. She pushed me with both hands. She continued to curse and threaten me saying “fuck you,” “you ain’t nobody,” “what’s up.” I then tried to keep her at a distance. She began to swing and punch at me. I then tried to subdue her to keep her from causing harm to me and herself. Once I got her to the ground I called for security to assist the situation. As in his earlier statement, Mr. Green here makes no mention of the most notable aspect of the incident: that he struck a seventh grade student twice in the face with his fist. He also makes no mention of any concern that S.J. might have had a weapon. Mr. Green was arrested and spent the night in jail.4/ He was charged with child abuse but the state attorney later dropped the criminal charges. Upon his release from jail, on August 29, 2013, Mr. Green was informed by Mr. Nesmith that he was to report immediately to the School Board’s Consolidated Services Warehouse/Teacher Supply Depot at Bulls Bay until further notice. On or about August 30, 2013, Mr. Green received the Notice, which informed him of the charges against him and of his right to contest those charges. The Notice stated that if Mr. Green chose to exercise his right to a hearing, he would be suspended without pay as of September 4, 2013, and that this suspension would be acted upon by the School Board at its meeting on September 3, 2013. On September 3, 2013, Mr. Green sent an email to Superintendent of Schools Nikolai P. Vitti that read as follows:5/ Dear Dr. Vitti, I am writing you this letter with the deepest concern of my character. First, I would like you to know that by no means am I an evil person or even a child abuser, I am far from what has been perceived of me due to the situation at Eugene Butler. I love and care about my students and I am very sorry for what happened but in all honesty I was defending myself. Please take a few minutes from your busy schedule to read this letter and consider me for reinstatement of my job. I entered the gym that particular day to get a signature from a coach because I proudly serve as the Athletic Director. As I was getting the signature the young lady who works in PE with me was having trouble controlling her class, she asked me to intervene and assist her. She is a first year teacher, small statute young white female who is presently teaching some students that are academically and behavioral challenged. This situation is rough on a first year teacher. I was able to calm her class down and get them in their roll lines but this one particular student continued to curse and disrupt the learning environment. This student was just getting back from Grand Park Alternative School this year. I was aware of her past and her behavioral problems so I asked her why she can’t follow instructions. I told her to report to the Dean’s office, still using abusive language she told me “Fuck You” over and over and continued to say “you ain’t nobody”. She walked to get her bag and gather her belongings. I saw her reach inside a bag she was carrying. I asked her to get out the gym because at that time I felt the other students were in danger and this student was causing a serious uproar. Before leaving the gym she said “y’all mother fuckers always trying me!” She continued to curse and got animated walking to the door. When she left the gym I followed her out at a cautious distance and instead of heading to the Dean office she was headed in the opposite direction to the front office. I told her she was headed the wrong way and this is when I stepped in front of her. I was trying to calm her down and keep her from causing a commotion in the hallway and keep her from walking to the front office. Then she raised her hands and pushed me saying “what’s up” in a threatening manner. Honestly it happened so fast sir until I was in defense mode because I knew what she had done to other staff members and the idea of her possessing a knife really scared me. It was a situation that I have never been in before and I panicked. The student became combative in an instance and I really didn’t know how to handle the situation. She came at me swinging and saying “what’s up, what’s up.” I was backing up trying not to let her get to me because I thought she could have had a weapon. She continued to attack me moving in my direction. When I realized she didn’t have a weapon I took her to the ground calling for security. Once I had her on the ground she continued to kick and try to break away. The entire time she continued to curse and saying “I’m gonna fuck you up”, I’m gonna kill you. Security arrived and she continued to say “let me go so me and this mother fucker can fight.” Again, I have never been in a situation such as this one. I feel truly sorry that this happened. Since the incident I haven’t been able to sleep and I have become depressed over the fear of my career being put in jeopardy. I have over ten plus years of service with Duval County and I have never been involved with anything such as this situation. In closing this letter, I am currently enrolled in graduate school with only three more classes to go and I am majoring in Educational Leadership. I really have hopes and dreams of being a leader one day in this wonderful district but I am praying that you have mercy on me for this situation and consider the circumstance and not to think that I am a child abuser but only I was defending myself from a violent student. I love my job and I really want to continue my career in Duval County. Please consider me for reinstatement, I am sorry for what happened and I am so willing to attend any training or workshops that the district provides to help teachers in these situations. This email again fails to admit in a straightforward manner that Mr. Green punched S.J. in the face. In this email, his third written description of the events in the hallway on August 28, Mr. Green for the first time states that he feared S.J. had a weapon, presumably a knife that she had pulled out of her bag while gathering her belongings in the gym. In the email, Mr. Green also states that he believed he was protecting the other students in the gym class from “danger” and that S.J was causing a “serious uproar” in the gym. The security video shows that the other students were more or less ignoring S.J. as she wandered in and out of the lines and around the gym.6/ In her testimony, Ms. Knadle disagreed that the class was out of control. She stated that the students were loud and were talking over her, and she agreed that Mr. Green was able to calm the students down by speaking to them. Six of seven School Board members were present at the September 3, 2013, meeting at which Mr. Green’s case was considered. The vote to suspend Mr. Green without pay and to terminate his employment with the Duval County School Board was unanimous. In his testimony at the hearing, Mr. Green complained that he had never received training on how to deal with violent students. Sonita Young, the School Board’s chief human resource officer, testified that the School Board offers training in proper restraint techniques to all teachers who specialize in working with students with behavioral disorders and to other teachers on an as needed basis. As a general education teacher, Mr. Green was not an obvious candidate for such training. Ms. Young testified that the training needs of a school are generally determined by the principal. Mr. Nesmith testified regarding “CHAMPS” training in classroom management techniques that all new teachers at Butler Middle School are required to attend. Mr. Nesmith did not require Mr. Green to take this training because there were no apparent deficiencies in Mr. Green’s classroom management. Most tellingly, Mr. Nesmith testified that “teachers know not to punch a student.” A teacher lacking training may face situations in which he must improvise a method of restraining an out-of-control student, but there is no excuse for such improvisation to descend to a fistfight with a middle school student. Mr. Johnson, the security guard, testified that when he is confronted by a physically aggressive student, “I just wrap them up, put my arms around them to keep them from being able to strike me or hurt themselves. If they continue to be aggressive, I put them on the floor and restrain them there.” This common sense approach is exactly how Mr. Green resolved the situation with S.J., but only after twice punching her. It is disingenuous for Mr. Green to contend that he required specialized training to know not to draw back his fist and strike a 14-year-old student in the face. Mr. Green explained the inconsistency of his statements by asserting that he was so stunned by the rapidity of events on the morning of August 28 that he was “out of it.” Mr. Johnson testified that Mr. Green seemed “somewhat bewildered . . . like he couldn’t believe what had just happened.” Mr. Green testified that at the time he wrote his first statement, he honestly believed he had not struck S.J., despite having seen the security video. Mr. Green’s testimony on this point is not credible. His written statements were clearly efforts to minimize his own actions and cast all blame for the incident on S.J. Mr. Green testified that he feared S.J. had pulled a knife out of her bag because of her increased confidence and belligerence after rummaging through her bag prior to leaving the gym with Mr. Green. He further testified that his punches were a desperate attempt to keep S.J. away from him in case she was wielding a weapon. Once he was sure that she was unarmed, he wrapped her up and took her to the ground. Mr. Green’s testimony on this point is undercut by his behavior prior to the first blow being struck. After S.J. backed up against the wall, Mr. Green moved in close, nearly nose to nose with S.J. He testified that this is a technique he learned from watching another teacher deal with angry students. Mr. Green moves in close while speaking calmly to the student, forcing the student to look him in the eye, feel safe, and calm down. Mr. Green’s explanation of this technique was not entirely credible. The psychological rationale of standing extremely close in order to calm a student is not readily apparent. On the security video, Mr. Green’s moving in on S.J. appears more an effort to employ his bulk to intimidate the student than to calm her. Even if Mr. Green’s explanation of his motive were credited, his action had the opposite of its intended effect. There is little question that his invasion of S.J.’s personal space was the proximate cause of her pushing him away, which started the fight. In any event, Mr. Green’s willingness to closely approach S.J., with his arms at his sides, belies his later assertion that he feared the child was holding a knife. His apprehension of a weapon appears to be an explanation concocted after the fact to explain why he chose to punch S.J. rather than restrain her. Mr. Green’s defense pointed out that no witness to the aftermath of the incident noted any marks, bruises, discoloration or severe injury to S.J.’s face. The fact that there were no marks on S.J.’s face was a matter of fortuity and no thanks to Mr. Green. This defense also overlooks the potential psychological harm to the child. S.J. was handcuffed, arrested, and placed in a patrol car because the adults did not believe that Mr. Green had punched her and Mr. Green himself would not own up to his actions. Much testimony was presented as to Mr. Green’s character, his genuine concern for students and their respect for him, and his lack of any prior disciplinary history. All of this testimony has been considered and fully credited. Much evidence was presented as to S.J.’s obstreperousness, her foul manner of speaking, her complete disregard for authority, and her perpetual verbal and physical aggression toward other students, staff and faculty of Butler Middle School. This evidence has likewise been considered and fully credited. However, even if it is stipulated that Mr. Green is an exemplary human being, a fine teacher and coach with an unblemished record, and a dedicated employee of the School Board, and it is further stipulated that S.J. was the worst student ever to darken the corridors of Butler Middle School and was in fact asking for what she got on August 28, 2013, there would be no excuse or rationalization sufficient to lessen the impact of Mr. Green’s actions on that date. When confronted with a large and aggressive student, Mr. Green’s instinct was to do exactly the wrong thing and punch her in the face. He compounded the harm by equivocating as to his actions even after seeing video evidence of what he had done. Mr. Green’s instinctive reaction during this incident could not help but effect the way he is viewed by his peers in the teaching profession and by the students who are entrusted to his care. His judgment and honesty are in question, at best. His effectiveness in the classrooms and the gymnasium of Butler Middle School has been irreparably impaired. In light of his spotless disciplinary record up to the time of the incident, the School Board could have considered transferring Mr. Green to another school to give him a chance to salvage his career. However, given the ferocity of the events depicted in the security video, the decision to terminate Mr. Green’s employment is entirely understandable. The evidence fully supports the School Board's preliminary decision to terminate Mr. Green's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order terminating the employment of Michael A. Green as an instructional employee of the School Board. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2014.
The Issue The issue is whether Respondent used inappropriate discipline techniques when he pushed an unruly student against a wall and back into his seat, in violation of Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educators Certificate No. 725455. He is an assistant principal at Riverview High School. He has been a teacher for 18 years. He is in his seventh year in the Sarasota County School District. Prior to his employment with Sarasota County, Respondent was a physical education teacher and then an assistant principal in Illinois. He has never previously been the subject of disciplinary action. The principal at Riverview High School testified that Respondent enjoys good rapport with the students. Respondent is required to deal with disciplinary issues, and the principal testified that he has always done so professionally. The principal testified that Respondent maintains his composure when disciplining students. The Administrative Law Judge credits the testimony of the principal. On February 20, 1998, Respondent was summoned to a classroom being taught by Francis J. Baad, a teacher since 1948. A substitute teacher, Ms. Baad was teaching a freshman English class that had become disruptive, so she asked someone to summon an administrator to her room. Ms. Baad was showing a film of Romeo and Juliet. Part of the class was trying to watch the film, but part of the class was misbehaving. Several students were talking loudly, and one student was playing with a red laser pointer. The misbehaving students ignored repeated entreaties from Ms. Baad to settle down. When she threatened to summon an administrator, some of the students told her that she could not do so. When Respondent entered the classroom, the students quieted down. Respondent asked Ms. Baad to tell him the names of the students who had been misbehaving. Identification was slowed by Ms. Baad's unfamiliarity with the names of the students and the fact that several students had sat in seats assigned to other students and had given wrong names. As Respondent was writing down the names of the students who had disrupted the class, C. H. objected to the listing of another student, G. B., whom C. H. claimed had done nothing wrong, even though Ms. Baad had named him as one of the students who had misbehaved. Respondent replied to C. H. that it was none of his business. C. H. rose from his seat, and Respondent told him to sit down. Instead, C. H. said that he did not have to listen and began to walk up the aisle to leave the classroom. Respondent stepped toward C. H. and told him to return to his seat and be quiet. C. H. replied that Respondent could not tell him what to do. Saying, "Yes, I will tell you what to do," Respondent approached C. H. and backed him to his desk. Respondent then grabbed C. H.'s arms or shoulders and forced him down to his seat. At one point, Respondent threatened to call the school resource officer and have C. H. arrested. However, Respondent never did so, nor did he or anyone else discipline C. H. for this incident. Instead, Respondent remained in the classroom until the bell rang. Respondent did not disrupt the classroom; he restored order to the classroom so that learning could take place. Respondent did not endanger C. H.'s physical health or safety. Respondent did not disparage C. H. Respondent did not unnecessarily embarrass C. H.; C. H. embarrassed himself. Respondent gave C. H. every opportunity to behave himself. Rather than do so, C. H. unreasonably defied Respondent's authority.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 20th day of December, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Attorney Post Office Box 131 St. Petersburg, Florida 33731-0131 Robert E. Turffs Brann & Turffs, P.A. 2055 Wood Street, Suite 206 Sarasota, Florida 34237
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
