The Issue Whether the Respondent, Arthur Williams, committed the violations alleged in the Amended Notice of Specific Charges and, if so, whether such violations are just cause for his suspension without pay for thirty days.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Miami-Dade County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Arthur Williams, was an employee of School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, the Respondent was employed pursuant to a professional service contract and was assigned to teach beginning band at Norland Middle School. The sole incident complained of in this case occurred on or about January 24, 2006, in the Respondent’s sixth period band class. The Respondent’s band class was located in a large classroom with three riser sections formed into a semi-circle. Students assigned seats in the higher section would step up the risers using the railed “hallways” leading to the upper sections. On or about January 24, 2006, C. M. was a student in the Respondent’s sixth period class. C. M. had an assigned seat in an upper riser section. For reasons known only to C. M., the student left his seat and walked down the riser hallway to pick up a piece of paper and throw it into a trash can located on or near the floor. Presumably, the trash can was at the lowest section (compared to the student’s seat). When the Respondent observed the student, C. M., out of his seat, he approached the student, put his hands on the student’s shoulders, turned him around (to then face his seat), and told him to return to his seat. In connection with the verbal direction to return to his seat, the Respondent gave the student a slight shove to direct him in the proper direction. The student, C. M., was out of his seat without permission, was unprepared for class, and was not responsible for throwing trash away (presumably an act he felt justified his behavior). The slight shove was so imperceptible that it did not offend any student who observed the action. C. M. did not show any sign of injury at the time of the incident described above. None of the students alleged that the Respondent had acted in anger in redirecting the student to his seat. None of the students perceived the act of redirecting the student as an act of corporal punishment or physical aggression against the student. Some six days after the incident complained of, the mother of the alleged victim took the student to the hospital. The mother claimed the student was diagnosed with a sprained ankle. There is no evidence to support a finding that the Respondent caused the alleged victim’s alleged sprained ankle. None of the other student witnesses verified that C. M. was injured or seen limping on or about the date of the incident. The Respondent continued teaching at the school through the conclusion of the 2005-2006 school year. The Respondent did not endanger the student, C. M., at any time. After the incident complained of herein, the student’s mother decided to move the student from the Respondent’s class. When the Respondent went to a conference with the office of professional standards there was no allegation that the Respondent had failed to comply with the corporal punishment guidelines. The act of redirecting the student to his seat was not an attempt at corporal punishment. The Respondent did not make physical contact with the student, C. M., to maintain discipline. It is undisputed that the Respondent was merely attempting to get the student to return to his seat. The Respondent’s conduct did not disparage the student. The Respondent’s conduct did not embarrass the student. The Respondent did not push C. M. down. On or near the date of the incident, the Respondent called C. M.’s parent to address the student’s poor class performance. The incident complained of herein was not addressed during the call. In fact, prior to the call, C. M. had not complained regarding the incident described above. When faced with an allegation of poor class performance, C. M. told his parent about the incident described above and claimed he had been injured in the process. The alleged injury prompted the removal of the student from the Respondent’s class. Thereafter, the parent contacted the Petitioner’s region office to file a complaint against the Respondent. That complaint resulted in the instant action. Ms. Pritchett maintained that the Respondent’s effectiveness as a teacher has been adversely impaired as a result of the parent’s complaint regarding the incident. The record lacks any information regarding the Respondent’s past school performance. No prior disciplinary issues or actions were noted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order concluding the Respondent’s behavior does not warrant a 30-day suspension. S DONE AND ENTERED this 2nd day of April, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2007. COPIES FURNISHED: Dr. Rudolph F. Crew Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ana I. Segura, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Carol Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's action letter dated August 21, 2003.
Findings Of Fact At all times material hereto, the School Board was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32, Florida Statutes (2002). At all times material hereto, Mr. Moore was employed full-time with the School Board as a paraprofessional at Robert Renick Educational Center (Renick) and subject to the rules and regulations of the School Board in accordance with Section 1012.33, Florida Statutes (2002). The UTD Contract, between the School Board and UTD, also governs the terms and conditions of Mr. Moore's employment. In April 1977, Mr. Moore began his employment with the School Board and was assigned to Renick. He remained at Renick as a paraprofessional through February 9, 2003. In December 1996, prior to beginning his employment with the School Board, Mr. Moore was charged with possession of stolen property and driving with a suspended license and an expired registration. A few months later, on February 20, 1997, Mr. Moore completed an application for employment with the School Board and indicated on the application that he had no criminal charges pending. However, at the time that he made application for employment, the charges of December 1996 were pending. Mr. Moore does not contest several performance problems and deficiencies for the period October 19, 1998 through March 10, 2002. By memorandum dated October 27, 1998, Mr. Moore was notified by the assistant principal, James DeWitt, that he violated School Board policy on October 19, 1998, by allowing a student to be in possession of the key to his classroom. Mr. DeWitt advised Mr. Moore that a reoccurrence of the violation would lead to a conference-for-the-record. By memorandum dated October 17, 2000, Mr. Moore was notified by Mr. DeWitt that he had arrived late at school that same day without notifying the main office of his tardiness in accordance with the UTD Contract. Mr. DeWitt directed Mr. Moore to adhere to the established work hours and advised Mr. Moore that further failure to adhere to his work schedule would result in disciplinary action. By memorandum dated November 2, 2000, Mr. Moore was notified by Mr. DeWitt that, on November 1, 2000, he (Mr. Moore) was playing a game on his computer while the students were taking a test even though he was required to monitor the test; and that his (Mr. Moore's) failure to supervise and monitor the test resulted in a student writing the answers in the wrong section of the test. Mr. DeWitt directed Mr. Moore to adhere to his duties in his job description and advised Mr. Moore that, among other things, his lack of supervision would not be tolerated and that his failure to adhere to the duties would result in disciplinary action. By memorandum dated March 5, 2001, Mr. Moore was notified by the principal, Eugenia Smith, that, among other things, he was on leave without authorization for 17 days of the 2000-2001 school year, from February 8, 2001 through March 5, 2001. Ms. Smith directed Mr. Moore to, within three (3) days of the date of the memorandum, provide his intended date of return or resign from employment with the School Board. By memorandum dated December 20, 2001, Mr. Moore was notified by Mr. DeWitt that, on December 5, 2001, because of his (Mr. Moore's) lack of supervision, a student pushed the emergency call button twice even though no emergency existed. Mr. DeWitt directed Mr. Moore to adhere to his duties in his job description and advised Mr. Moore that his failure to adhere to the duties would result in disciplinary action. By memorandum dated March 8, 2002, Ms. Smith notified Mr. Moore that he had been tardy for several days, specifying the days of tardiness. On March 8, 2002, a conference-for-the-record was held with Mr. Moore to address his tardiness, including noncompliance with verbal and written directives regarding his tardiness. Also present were, Ms. Smith, Mr. DeWitt, and a UTD representative. At the conference-for-the-record Mr. Moore was given specific directives regarding future tardiness, which were to be to work on time and to adhere to procedures in the UTD contract. A summary of the conference-for-the-record dated March 10, 2002, was prepared and was subsequently signed by Mr. Moore. By memorandum dated November 8, 2002, Mr. Moore was notified by Mr. DeWitt that, on November 7, 2002, Mr. Moore's personal telephone was confiscated because it had been used in the classroom as an extension of the school's telephone system. By memorandum dated November 13, 2002, Mr. Moore was notified by Mr. DeWitt that his (Mr. Moore's) use of his personal telephone as an extension of the school's telephone system was a violation of the School Board's policy prohibiting telephones in the classroom unless approved by the administration. Mr. DeWitt directed Mr. Moore to adhere to School Board policies and advised Mr. Moore that failure to do so would result in disciplinary action. Mr. Moore does not contest violating the School Board's policy regarding the use of his personal telephone in the classroom. By memorandum dated January 17, 2003, Mr. DeWitt notified Mr. Moore that, on January 22, 2003, he (Mr. Moore) left the school for approximately one and one-half hour, from approximately 11:50 a.m. to 2:20 a.m., without signing-out as required by the School Board's policy. Mr. DeWitt directed Mr. Moore to adhere to the scheduled work hours and advised (Mr. Moore) that his failure to so adhere would result in further disciplinary action. On January 22, 2003, Mr. Moore was arrested based on an outstanding warrant for the December 1996 charges previously indicated. Renick is a special center for emotionally handicapped and severely emotionally disturbed students. The student's have emotional problems, which interfere with their ability to learn. The teachers, including paraprofessionals, at Renick are specially trained to deal with the behavior problems of the students. The School Board adheres to a graduated system of discipline for students, which consists of the following: first, student conferences are held, then parent conferences, and then parent-teacher conferences; and after the conferences, indoor suspension, then detention, and, lastly, outdoor suspension. Also, located in each classroom is a call button to call security for assistance if needed. The use of profanity and corporal punishment is prohibited by School Board rules. As a paraprofessional with the School Board for several years, Mr. Moore knew or should have known the School Board's graduated system of discipline, rules, and policies. Training is provided for teachers, including paraprofessionals, in the management of students at Renick, who are misbehaving. Also, in-house workshops are provided. The training is "crisis management," which was formerly safe physical management. In crisis management, physical restraint is the last resort; interventions are used instead. A student's parent must consent in writing for the use of physical restraint; however, even without consent, physical restraint may be used for situations that do not de-escalate. If physical restraint is used, the situation must be documented and the student's parent must be notified. One intervention is a prearranged intervention in which the student and teacher agree on a technique to be used by the teacher to make the student aware that his/her behavior is escalating. The prearranged intervention may be, for instance, a pulling of the student's ear. If the prearrange intervention fails to de-escalate the student's behavior, another intervention referred to as proximity control may be used. In this technique, the student feels the teacher's presence by the teacher moving towards the student, which interrupts the student's behavior. If no interventions, whether verbal or non-verbal, de- escalates the student's behavior, which begins to get out-of- control, forms of physical restraint may be used, as a last resort. One form of physical restraint is for the teacher to hold the student with his/her hand to communicate to that student that his/her behavior is escalating, with safety being the primary issue. If the student's behavior continues to escalate, the teacher may resort to a more restrictive restraint such as the cradle. In using this technique, both the student and teacher are standing, with the student having his/her back to the teacher, and the teacher holding the student, with safety being the primary issue. Again, the teacher is attempting to have the student realize that his/her behavior is escalating. If the student's behavior continues to escalate, the teacher may take the student to the floor. One technique used is the cradle assist. In this technique, the student is brought to the floor by the teacher and the student is held by the teacher in a cradle-like position. If the student's behavior continues to escalate, the teacher, with the assistance of a colleague, may hold the student to the floor. Using a colleague, assists the student in calming down. Whenever physical restraint is used, the parents of the student are notified. Furthermore, the student is counseled, and the student's file must be documented regarding the use of physical restraint. Mr. Moore received the training as to the interventions and the physical restraints. Furthermore, he attended at least one in-house workshop. Therefore, Mr. Moore had knowledge of the behavior techniques. A past performance problem involving Mr. Moore and a student was documented by a memorandum dated July 24, 1998 from Mr. DeWitt to Mr. Moore. The memorandum addressed "alleged misconduct" by Mr. Moore committed on July 20, 1998, in which Mr. Moore allegedly choked a student, when he was putting the student in time-out, and used inappropriate language by calling the student a "faggot." Although the memorandum indicated that Mr. Moore stated that he may have grabbed the student's neck, the memorandum did not indicate that the allegation was confirmed. Mr. DeWitt directed Mr. Moore to "refrain from using inappropriate procedures and language" while performing his duties. The statement by Mr. Moore showed that he admitted, not denied, that he did take some action with the student. Regarding incidents with students, the Amended Notice of Specific Charges alleges a specific incident, occurring on December 19, 2002, between Mr. Moore and a student, J. G. Allegedly, Mr. Moore told J. G. that he "was going to kill him" and "for him [J. G.] to meet him [Mr. Moore] at the store in five minutes since he [J. G.] was bad, so they could fight"; and that he "was going to make him [J. G.] his girl"; Furthermore, Mr. Moore allegedly called J. G. a "fat bitch." Additionally, Mr. Moore allegedly told another student, X. W., that he would "fuck X. W.'s mother in the grave" and called X. W. a "faggot." Also, Mr. Moore allegedly grabbed another student, I. J., and subsequently, another student, M. S., and pulled their arms behind their backs and pushed them against a wall. Further, the Amended Notice of Specific Charges contains a general allegation of how Mr. Moore treated students, i.e., "Moore often hit students with a broomstick on the legs and buttocks, pushed students to the ground, picked a student up and slammed him to the floor, wrestled students in the classroom, and often called them gay." As to the general allegation, student D. J. testified regarding Mr. Moore pushing a student to the ground. D. J. testified that he did not want to do his work and attempted to leave the classroom without permission from Mr. Moore; that Mr. Moore would not allow him to leave the room; and that Mr. Moore placed him on the floor, face first, with his (D. J.'s) arms behind his back in a manner that hurt him (D. J.). No one else was in the classroom to witness the alleged incident. No specific time period was provided for the alleged incident. Mr. Moore's testimony did not address this particular incident. In considering D. J.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. D. J.'s demeanor and candor, during his testimony, detracted from the credibility of his testimony. The undersigned does not find D. J.'s testimony convincing. Even if Mr. Moore engaged in the physical restraint of D. J., the evidence presented fails to demonstrate that Mr. Moore's action was inappropriate under the circumstances. D. J. was attempting to force his way out of the class. However, Mr. Moore failed to document the incident and notify D. J.'s parents that physical restraint was used. Also, as to the general allegation, student M. L. testified regarding picking a student up and slamming the student to the floor. M. L. testified that, except for him, all the other students in the class had completed their work and were in the rear of the classroom with the teacher; that he had just completed his work and was walking to the rear of the class when Mr. Moore walked into the classroom; that Mr. Moore told him that he was out of his seat without permission; and that Mr. Moore picked him up and slammed him to the floor, placing his (Mr. Moore's) knee in M. L.'s back. Mr. Moore testified that M. L. was out of his seat without permission and that M. L. was running in the classroom and would not sit down even though Mr. Moore asked him to sit down and stop running. M. L. admitted that he had been disciplined before for running around in the classroom. Mr. Moore admits that he put M. L. to the floor, which de-escalated the situation, and that he then allowed M. L. to get up. Furthermore, Mr. Moore admits that he did not document the incident and did not notify the parents of M. L. that physical restraint had been used on M. L. No testimony was presented from Mr. Moore's supervising teacher, Jaime Calaf, regarding the incident with M. L. No other testimony was presented. As to the incident with M. L., the only witnesses testifying were M. L. and Mr. Moore. In considering M. L.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. M. L.'s demeanor and candor, during his testimony, and his admission that he had been disciplined for the same action previously detracted from the credibility of his testimony. Specifically, the undersigned is not convinced that M. L. had completed his work, that he was not disruptive, that Mr. Moore slammed M. L. to the floor, and that Mr. Moore put his knee in M. L.'s back. Mr. Moore admits that he put, not slammed, M. L. to the floor. The undersigned does not find M. L.'s testimony convincing. The evidence presented fails to demonstrate that Mr. Moore's action was inappropriate under the circumstances. However, Mr. Moore failed to document the situation and failed to notify the parents of M. L. as required that physical restraint had been used with M. L. Regarding the general allegation that Moore often hit students with a broomstick on the legs and buttocks, wrestled students in the classroom, and often called them gay, M. L. testified as to Mr. Moore punching students in the arm, who were misbehaving, and O. B. testified as to Mr. Moore hitting students with a broom. M. L. testified that, at times, Mr. Moore punched him and other students in the arm when they were misbehaving. The undersigned's decision as to M. L.'s credibility remains the same. The evidence fails to demonstrate that Mr. Moore punched students who were misbehaving. O. B. testified that Mr. Moore attempted to hit him once with a broom when he was misbehaving and, at times, hit other students with a broom when they were misbehaving. In considering O. B.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. O. B. testified that he did not consider J. B. to be a disruptive student; whereas, the evidence presented, regarding J. B., clearly indicates that J. B. is a disruptive student. O. B.'s demeanor and candor, during his testimony, together with his unsupported conclusion that J. B. was not a disruptive student, detracted from the credibility of his testimony. The undersigned does not find O. B.'s testimony convincing. Further, Mr. Calaf testified that, on occasions, he observed Mr. Moore grabbing students in the back and getting rough with them. Mr. Calaf did not testify that he reported his observations to the principal or other person who could exact discipline upon Mr. Moore. Moreover, Mr. Calaf did not testify that what he observed was inappropriate or contrary to the established crisis management training. Consequently, Mr. Calaf's observations cannot be used to support the alleged inappropriate conduct by Mr. Moore. Regarding the specific incident involving J. G. in the Amended Notice of Specific Charges, according to the principal of Renick, Eugenia Smith, she would not have recommended the dismissal of Mr. Moore if it had not been for the incident on December 19, 2002, involving J. G., a middle school student at the time. No dispute exists that the School Board uses progressive discipline. For Ms. Smith, the incident involving J. G. was the incident that triggered the dismissal of Mr. Moore. As a result, this incident is the defining incident for Ms. Smith's decision to recommend dismissal of Mr. Moore and, therefore, if this incident is not proven, the basis for her recommendation of Mr. Moore's dismissal no longer exists. As to the specific incident involving J. G., the witnesses to the incident are J. G., other Renick students in the class, and Mr. Moore. No dispute in the testimony exists that, on December 19, 2002, Mr. Moore and J. G. got into a shouting match and that Mr. Moore never touched J. G. At Renick, J. G. was disruptive in his classes and had had many discipline problems. One psychologist at Renick, Joseph Strasko, described J. G. as physically disruptive and aggressive. Another psychologist at Renick, Theodore Cox, Jr., had observed J. G. engaging in inappropriate behavior. Also, Mr. Strasko described J. G. as a student who would not tell the truth when it was detrimental to him (J. G.); whereas, Mr. Cox had not known J. G. to tell an untruth. As to whether J. G. would tell the truth, the undersigned finds Mr. Strasko to be more credible and, therefore, finds that J. G. will not tell the truth when it is detrimental to him (J. G.). As to what lead to the shouting match, only Mr. Moore was certain as to what happened. The undersigned finds Mr. Moore's testimony credible regarding this aspect of the incident. J. G. was bullying a new student in the class and had physically moved toward the new student. Mr. Moore interceded to stop the bullying by J. G. and to protect the new student, requesting J. G. to take his seat but J. G. refused. Mr. Moore kept himself between J. G. and the new student, thereby, preventing J. G. from advancing upon the new student. What Mr. Moore said during the shouting match is where the testimony differs. However, no dispute exists as to certain aspects of the incident: that J. G. became angry and disrespectful toward Mr. Moore; that J. G. stated to Mr. Moore that, if Mr. Moore put his hands on him, he (J. G.) would bring his father and brother to Renick and they would deal with Mr. Moore; and that J. G. used profanity with Mr. Moore. Mr. Moore denies that he used profanity or disparaging remarks during the incident with J. G. The crisis management expert, Mr. Strasko,2 testified that it is not appropriate for a teacher to shout profanities at a student who is shouting profanities at the teacher; and that a teacher is required to be professional even when students are being disruptive. X. W., a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that Mr. Moore called J. G. a "fat bitch" and called him (X. W.) a "punk." X. W. is J. G.'s cousin. D. J., a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that he did not hear about what J. G. and Mr. Moore were arguing. However, D. J. testified that, when J. G. told Mr. Moore that he (J. G.) was going to bring his (J. G.'s) brother, Mr. Moore told J. G. to bring his brother and that he (Mr. Moore) would "lay him on the ground." O. B. a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that, when J. G. told Mr. Moore that he (J. G.) was going to bring his (J. G.'s) brother, Mr. Moore told J. G. to bring his brother to the store and that they would deal with it then. O. B. further testified that J. G. and Mr. Moore were calling each other gay and other derogatory names. Further, regarding the incident on December 19, 2002, Mr. Calaf did not witness the incident. Mr. Calaf returned to the class after the incident had occurred and observed J. G. crying and Mr. Moore and J. G. shouting at each other. Mr. Calaf did not testify as to what Mr. Moore and J. G. were shouting but did testify that he advised Mr. Moore that he (Mr. Moore) should not shout at students and should always remain professional, not getting on the level of the students. As to J. G.’s being disruptive in the class, Mr. Calaf testified that J. G. was generally disruptive and that usually Mr. Moore could calm J. G. down. The undersigned finds Mr. Calaf's testimony credible. In considering J. G.'s credibility, the aforementioned factors describing J. G. must be considered. In considering X. W.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but also that teachers are required not to use profanity and to be professional. Further, the undersigned must consider the fact that X. W. is J. G.'s cousin, which was unbeknownst to Ms. Smith. In considering D. J.'s credibility, the undersigned must consider the factor that D. J. complained that Mr. Moore used physical restraint against him in an earlier incident in which the only witnesses were he and Mr. Moore. The incident and D. J.'s credibility are addressed earlier in these findings. In considering O. B.'s credibility, the undersigned must consider that O. B. complained that he observed Mr. Moore hitting students at Renick with a broom. The incident and O. B's credibility are addressed earlier in these findings. In considering Mr. Moore's credibility, the character testimony provided by Mr. Strasko and the character letters provided by Mr. Moore's colleagues must be considered. Mr. Strasko and Mr. Moore's colleagues address, among other things, what they consider the appropriate manner in which Mr. Moore handled students who were having behavior problems. Further, Mr. Moore's length of employment with the School Board, and his aforementioned past performance situations must be considered, including the one documented alleged inappropriate crisis management technique and language used by Mr. Moore in July 1998. Taking all of the aforementioned factors of credibility into consideration, the undersigned finds Mr. Moore's testimony more credible than the students, the character testimony and letters persuasive, and the lack of evidence, as to what was said, by a witness who was not involved in the incident, i.e., Mr. Calaf. Therefore, the undersigned finds that Mr. Moore did not use profanity during the incident of December 19, 2002. Mr. Moore did not report the incident involving J. G. Mr. Moore did not believe that the incident rose to the level that reporting was necessary. Moreover, no physical restraint was used. On May 1, 2003, a conference-for-the-record was held with Mr. Moore by the School Board's Office of Professional Standards (OPS) to review his employment history and future employment with the School Board. Among those in attendance with Mr. Moore were a UTD advocate, Ms. Smith, and the assistant superintendent for the Office of Exceptional Student Education and Student/Career Services. By a summary of the conference- for-the-record, dated June 6, 2003, the conference-for-the record was memoralized. By memorandum dated May 28, 2003, Ms. Smith and the assistant superintendent recommended the dismissal of Mr. Moore. By letter dated August 21, 2003, the School Board notified Mr. Moore that at its meeting on August 20, 2003, it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: Finding Algernon J. Moore, Jr. in violation of Counts I and IV in accordance with this Recommended Order. Dismissing Counts II and III. Upholding the suspension of Algernon J. Moore, Jr. Dismissing Algernon J. Moore, Jr. from all employment with the Miami-Dade County School Board. DONE AND ENTERED this 30th day of December 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2004.
The Issue Whether Respondent's employment as a teacher by the Indian River County School Board should be terminated for the reasons specified in the Charging Letter dated September 20, 2013.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Indian River County, Florida. At all times pertinent to this case, Respondent was employed as a physical education teacher at the Alternative Education Center, a public school in Indian River County, Florida. On October 16, 2012, Respondent was arrested and charged with purchase of marijuana and possession of more than 20 grams of cannabis, both of which are third degree felonies. On March 6, 2013, Respondent entered a plea of no contest to the above-noted criminal charges and entered into the Drug Court Intervention Program. Pending the outcome of Respondent's criminal charges, on October 18, 2012, Respondent was reassigned to work at the Support Services Complex ("Complex"). Respondent was directed to report to Rick Chuma, Director of Purchasing for the District, on October 19, 2012, at 8:00 a.m. Mr. Chuma testified that individuals, such as Respondent, who are reassigned to the Complex are typically assigned menial tasks such as shredding paper or other minor projects. Specific to Respondent, Mr. Chuma recalled Respondent's duties as shredding paper and, on one occasion, working for Patrick McCarty, the Director of Food Services, cleaning the kitchen. Mr. Chuma conceded that there would be occasions where Respondent did not have any tasks to perform at the Complex; however, he noted that under such circumstances Respondent was not permitted to leave during his assigned hours (excepting breaks or lunch). Denise Roberts, the Executive Director of Human Resources, testified that Respondent was assigned to work at the Complex from approximately 7:30 a.m. to 11:30 a.m. or 12:00 p.m. At the Complex, individuals such as Respondent kept an accounting of their time by completing a "Personnel Time Sheet" on a daily basis. Margaret Irene Herman, Mr. Chuma's assistant, ensures personnel are signed in and out. The timesheets cover a two-week period and are maintained in a basket on her desk. Respondent had an individual time sheet and would document for each day when he arrived and left the Complex. Although personnel are expected to complete the form in real time, that is, sign in upon arrival, and sign out when departing, some personnel would sign in and out upon arrival at work. This was not a disciplinable offense if the employee worked during the documented time period. In February 2013, after approximately four months at the Complex, concerns arose regarding Respondent's whereabouts at the Complex during his assigned hours. On one occasion, Ms. Roberts received a call from Ms. Herman inquiring as to whether Respondent had requested and been authorized leave, because he could not be located. Mr. Chuma testified that, on one occasion, he was asked to locate Respondent at the Complex, and he could not be located. Patrick McCarty also testified that, on one occasion, he was asked to locate Respondent, but was unsuccessful.1/ On the above-noted occasions, Respondent had signed in and out on his timesheet as working a full day. Although Respondent continued to have access to and utilize his work email, and Petitioner had his phone number, Petitioner never attempted to locate Respondent via those channels. Instead, Petitioner contacted Kenneth Thompson, the plant manager of the Complex, to review video surveillance of the Complex. Ms. Roberts and Mr. McCarty recalled viewing one video surveillance clip that purportedly showed Respondent arriving at the Complex and then leaving the Complex several minutes later. Ms. Herman testified that she viewed approximately three separate video clips similarly showing Respondent arriving at work and then leaving several minutes later.2/ Respondent conceded that there were days when he arrived at the Complex, signed in and out as working his scheduled hours, and then left the Complex several minutes later for the entire day. On those occasions, Respondent did not notify anyone of his absence. There is no evidence that Respondent requested leave on those occasions. The evidence reveals that Respondent received his full pay for the days that he was willfully absent. At some point in time, Respondent was informed that he was required to sign in and out in the presence of Ms. Herman.3/ Thereafter, Respondent complied and there is no evidence of further incidents regarding Respondent being physically present at the Complex. On July 1, 2013, William Fritz was assigned as the Assistant Superintendent for Human Resources and Risk Management. Shortly thereafter, Mr. Fritz conducted an investigation regarding the above-noted conduct. At the conclusion of his investigation, Mr. Fritz recommended Respondent's termination, and the Superintendent ultimately supported that recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a final order finding William Howle guilty of misconduct in office, and terminating his employment. DONE AND ENTERED this 4th day of August, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2014.
The Issue The issue in this case is whether the School Board of Lee County (School Board) should terminate the Respondent, Christel Freeman, for fighting with another school bus employee on School Board property.
Findings Of Fact The Respondent, Christel Freeman, has been a school bus driver employed by the School Board since 2002. There was no evidence that she was anything other than an exemplary employee until an incident that occurred at the School Board’s Leonard Street bus compound at the end of the work day. She and her boyfriend, Mike Ortes, were driving their personal vehicle from the back of the compound to the front, where the employees clock out and usually visit for a while before going home, when she spotted another employee, Ashley Thomas, who had just recently been transferred to Leonard Street. The Respondent approached Thomas, who was visiting with co-workers at a picnic table, because she suspected that Thomas was having sexual relations with her boyfriend and wanted to tell Thomas to stay away from her boyfriend, stop interfering with the Respondent’s family unit, and stop “talking trash about her.” When she got within earshot, the Respondent asked Thomas if they could talk in private. Thomas said, yes, and the two walked away from the co-workers at the picnic table. The Respondent began to tell Thomas what she wanted to talk about, and the conversation soon became heated. After they left the view of the co-workers at the picnic table, they passed another co-worker who was sitting in a vehicle and who said something to Thomas. As Thomas turned to respond to the speaker, the Respondent struck Thomas with her hand or fist on the side of the face, near the eye. Thomas was carrying her car keys, cell phone, and purse and was surprised by the blow. When the Respondent followed up with another blow, Thomas began to defend herself by hitting back. The nearby co-workers very quickly ran to the combatants to separate them. In the process, the combatants fell down, with the Respondent landing on top. The scuffling continued for a brief time until the combatants were separated. By this time, Thomas’s shirt had been torn open at the front buttons, her face was bruised and swelling, and her eye was hurt. The Respondent also had an eye injury from being hit with Thomas’s car keys. The police were called, but the Respondent left the scene with her boyfriend by the time the police arrived. After some leading questions by the Respondent, Ortes supported her testimony that they went to the hospital for emergency treatment for her eye and, once there, called the police, who responded to the hospital. After discussing the incident with the police, neither woman pressed charges. The Respondent’s primary defense is that after she called Thomas a “nasty bitch,” Thomas struck her first with the car keys, and the Respondent defended herself. However, the other witnesses to the incident saw it the other way around, with the Respondent hitting first without provocation. The Respondent attempted to undermine that testimony by saying those witnesses were family and friends of Thomas. To the contrary, the evidence was that the family and friends of Thomas were not the eyewitnesses who testified; rather, Thomas’s family and friends either did not testify or testified that they were not eyewitnesses to the incident. While the Respondent attempted to downplay the state of her emotions at the time of the incident, it is clear from the evidence that she was angry at Thomas and initiated the conversation in that state of mind. It is possible that what triggered the Respondent’s violence was Thomas saying the Respondent should ask her boyfriend for the answers to her questions, which the Respondent took as flaunting an admission that they were having sexual relations. According to the Respondent’s testimony, her job with the School Board is very important to her and her family. Notwithstanding that she has not admitted instigating the fight with Thomas and throwing the first blow, she understands that the consequences of engaging in similar conduct again would certainly be the permanent loss of her job. For that reason, it is unlikely that she would put herself in that position in the future. There is a collective bargaining agreement between the School Board and the Support Personnel Association of Lee County (SPALC) that governs the Respondent’s employment. The procedure followed in the Respondent’s case is set out in sections 7.10 and 7.103 of the SPALC agreement. Section 7.10 of the SPALC agreement provides: The parties agree that dismissal is the extreme disciplinary penalty, since the employee’s job seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary actions(s) taken against SPALC bargaining unit members shall be consistent with the concept and practice of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee’s record. Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause. Section 7.10 also states that employee misconduct is a ground for suspension without pay or termination of employment. The SPALC agreement does not define misconduct. The School Board has policies that govern employee conduct. Policy 4.09 adopts a “zero tolerance” policy for threats of violence. It prohibits “any verbal, written or electronically communicated threat, suggestion or prediction of violence against any person.” Id. “Any serious threat of violence shall result in immediate disciplinary action and referral to the appropriate law enforcement agency.” Id. School Board Policy 5.29(1) states: “All employees are expected to exemplify conduct that is lawful and professional ” School Board Policy 2.02(2) describes and prohibits “unacceptable/disruptive behavior.” This includes “[u]sing unreasonable loud and/or offensive language, swearing, cursing, using profane language, or display of temper.” Id. at ¶ (b). It also includes “[t]hreatening to do bodily or physical harm to a . . . school employee . . . regardless of whether or not the behavior constitutes a criminal violation.” Id. at ¶ (c). It also includes “[a]ny other behavior which disrupts the orderly operation of a school, school classroom, or any other School District facility.” Id. at ¶ (e). Section 7.103 of the SPALC agreement allows an employee being terminated to either file a grievance under Article 5 or request a hearing before the School Board, but not both. Section 7.13 of the SPALC agreement provides that employees “shall not engage in speech, conduct, behavior (verbal or nonverbal), or commit any act of any type which is reasonably interpreted as abusive, profane, intolerant, menacing, intimidating, threatening, or harassing against any person in the workplace.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order finding the Respondent guilty of employee misconduct and either terminating her employment, or suspending her without pay and reinstating her upon entry of the final order. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 27th day of June, 2014. COPIES FURNISHED: Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Nancy J. Graham Superintendent of Lee County Schools 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Christel Freeman 2119 French Street Fort Myers, Florida 33916-4434
The Issue The issue in this case is whether Respondent, Jean Berrouet, committed the violations alleged in the Notice of Specific Charges and, if so what disciplinary action should be taken against him.
Findings Of Fact Jean Berrouet (Berrouet) has worked at Lakeview as a teacher from 1992 through October 2006 in Miami-Dade County Florida. He taught Haitian Creole to the ESOL students from Haitian background as well as basic science, social studies, and mathematics to the ESOL Level 1 and 2 Haitian Creole students. On or about June 1, 1998, Berrouet was officially reprimanded for using corporal punishment in disciplining students. He was specifically directed by memorandum "immediately to refrain from using physical means to affect student behavior" by Lakeview Principal, Edith Norniella. Berrouet's licensure was also previously subjected to disciplinary action in Florida. He was reprimanded by the Education Practices Commission for inappropriately disciplining a student in class by hitting a student with a pointer. On or about April 23, 1999, the Education Practices Commission placed Berrouet on two years of probation with the following terms: acceptance of a written reprimand, yearly probation fees of $150.00, completion of a three credit course on classroom management, participation in the recovery network program and prohibition from violating any laws as well as fully complying with all district school board regulations, school rules and State Board of Education Rule 6B-1.006. Prior to starting the 2006-2007 school year, Berrouet attended an in-service meeting at Lakeview where school policies were reviewed including student behavior, the code of conduct, and corporal punishment. Berrouet was also provided a Lakeview Elementary School Staff Handbook that included specific guidelines and procedures for student behavior including discipline. As a School Board employee, Respondent was expected to conduct himself in accordance with School Board rules. Respondent holds professional teaching certificate 677708 issued by the Florida Department of Education (DOE). His certificate is valid through June 30, 2009. Berrouet only teaches Haitain Creole students. Since 1992, he has used a technique to help the Haitian Creole students try to transition into the American culture and focus them on their lesson. The technique included Berrouet touching the students' ears to get their attention and saying "You have two ears, not one. You have one mouth, not two . . . So you should do more listening than talking." No parent ever complained about the technique to Berrouet or the Administration. Additionally, no administrator ever addressed that there was a problem with the technique Berrouet performed. The technique is not a punishment. Berrouet even used the technique at least once in the classroom on a student while being observed by the principal. Berrouet's testimony is more credible than the children because he has been using the focusing technique for 14 years, been observed by an administrator using the technique and it was never brought to his attention that it was inappropriate. On October 9, 2006, during the last period of the day, Berrouet had approximately 30 students in his mathematics tutorial after-school class from 5:00-6:00 p.m. His actual classroom size assignment was 15. However, a teacher had left early for the day and the other teacher's students were in Mr. Berrouet's classroom for him to oversee, even though the additional 15 students were permanently assigned to the teacher's classroom who had left early. An altercation occurred in Berrouet's classroom at approximately 5:45 p.m. between two students from the other class, A.B. and M.L. A.B ran behind Berrouet, who was standing at the door and asked Berrouet to help protect her from M.L. M.L. was running after A.B. Berrouet put his hand up and directed M.L. to go back to her seat. However, M.L. kept chasing after A.B. running toward Berrouet into his outreached arm and hand with her upper body (to the chest, neck or shoulder). A.B. left the room. Berrouet stood between A.B. and M.L. at the doorway to prevent M.L from going after A.B. M.L. continued to try to push through Berrouet trying to get to A.B. The incident took a few seconds. Berrouet did not make any effort to activate the button to call the office about the incident. If he had left the doorway to go across the classroom to push the office button, M.L. would have had access to attack A.B. Berrouet standing in the doorway was the only barrier preventing M.L. from reaching A.B. After Berrouet told M.L. to sit down and she was unable to get pass Berreout to A.B., she went to her seat and cried. M.L. cried because she was upset and couldn't get to A.B. Berrouet kept A.B outside and allowed another student to get her book bag and take it to her so she could leave for the day. Berrouet kept M.L. in the classroom a few minutes after A.B left to ensure that A.B. was gone and no further interaction would occur between the girls. Berrouet was not aware of the earlier kicking incident between M.L. and A.B. He first became aware of a problem between the girls when A.B. ran behind him for help. Berrouet did not write up a Student Case Management Referral Form since he had no knowledge of the kicking incident and because he thought he had diffused the potential altercation by him standing between the students. Berrouet's testimony and that of M.L. is deemed more persuasive then that of the other children witnesses. As the parties were directly involved in the incident, Berrouet and M.L. provided the most competent, credible testimony about the disputed matters. On October 10, 2006, the next morning after the incident, M.L.'s mother showed up with M.L. at Lakeview to meet with Mr. Jeffrey Hernandez, the principal. M.L.'s mother reported that Berrouet had grabbed M.L. by the neck on the previous day. Hernandez completed a Miami-Dade County Public Schools School Operations Incident Report regarding the matter. Berrouet was provided a memorandum dated October 10, 2007, entitled Notification of Allegation. Subsequently, the School Board of Miami-Dade County at a meeting on March 14, 2007, suspended Berrouet without pay and initiated dismissal proceedings. On May 3, 2007, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board policies regarding corporal punishment and responsibilities and duties.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner enter a final order dismissing all charges against Respondent and Miami-Dade County School Board reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 9th day of October, 2007, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2007. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Rudolph F. Crew, Superintendent Dade County School Board 1450 Northeast Second Avenue No. 912 Miami, Florida 33132-1308 Jeanine Blomberg, Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 31st day of July, 2017.
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
