The Issue The issue in this case is whether a district school board is entitled to suspend a teacher without pay for just cause based principally upon the allegation that he slapped a student.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Larry J. Williams ("Williams") had been employed as a teacher in the Miami-Dade County Public School System for approximately 16 years. At all times relevant to this case, Williams was assigned to Parkway Middle School, where he taught students with disabilities. The events giving rise to this case occurred on January 30, 2004. About 20 minutes into one of Williams' sixth grade classes that day, the assistant principal brought a student named J. L. into the room. (J. L. had been roaming the hallways without authorization.) Upon his late arrival, J. L. took a seat, put his head down, and promptly fell asleep. Williams walked over to J. L.'s desk and shook it, asking J. L. if he were all right. Evidently startled, J. L. jumped up and shouted at Williams: "What the fuck are you doing? You ain't my daddy, you black ass nigger," or words to that effect.1 Williams, who is a black man, was taken aback. "What did you say?" he replied. "What the fuck are you bothering me for, you black ass nigger?" answered the student, who was now standing close to Williams. At that point, Williams quickly pushed J. L. away. Williams made physical contact with J. L. and probably touched his face or head. This contact was, it is found, more of a shove than a blow.2 J. L. then left the classroom and went to the office, to report that Williams had hit him.3 After J. L. had left, a student remarked, "Oh Mr. Williams, you [sic] in trouble now." Not wanting to lose control of his classroom, Williams tried to downplay the incident, telling the student that nothing had happened. The undersigned rejects as unfounded the School Board's allegation that Williams told his class to lie about the matter. Before the period was over, the school administration, acting on the word of J. L, a student who less than an hour earlier had been wondering about the halls and hence needed to be hauled into class by an assistant principal, pulled Williams out of his room and sent him home.4 Williams was not allowed to return to work until September 23, 2004. He therefore missed about seven months of school, namely the remainder of the 2003- 04 school year plus the beginning of the 2004-05 school year. For using vulgar language and brazenly insulting Williams with a hateful racial epithet, J. L. was suspended for five days. At its regular meeting on June 16, 2004, the School Board voted to accept the recommendation of Williams' principal that the teacher be suspended without pay for 30 workdays. (This means docking six weeks' worth of Williams' wages, or 12 percent of his annual salary.) Ultimate Factual Determinations Williams did not fail to make a reasonable protective effort to guard J. L. against a harmful condition, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Williams did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Williams' conduct on January 30, 2004, did not entail threats, threatening behavior, or acts of violence. Therefore, he did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. Williams committed a technical violation of School Board Rule 6Gx13-5D-1.07, pursuant to which the administration of corporal punishment is strictly prohibited. This violation was not so serious, however, as to impair Williams' effectiveness in the school system. Accordingly, it is determined that Williams is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order rescinding its previous decision to suspend Williams without pay; awarding Williams back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate; and directing that a written reprimand for violating the corporal punishment rule be placed in Williams' personnel file. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2004.
The Issue Should Petitioner, Pinellas County School Board (School Board or Board), terminate the employment of Respondent, Rose M. Dacanay, for the reasons that follow: Violation of Board Policy 4140A(9), incompetence? Violation of Board Policy 4140A(9)(a), failure to perform the duties of the position? Violation of Board Policy 4140A(19), failure to correct performance deficiencies? Violation of Board Policy 4140A(20), insubordination? Violation of Board Policy 4140A(24), failure to comply with Board policy, state law, or contractual agreement?
Findings Of Fact The Pinellas County School District has employed Ms. Dacanay since August 2005. She has worked as a teacher assistant and as an exceptional student education (ESE) associate. At the beginning of the 2011-2012 school year, Ms. Dacanay worked as an ESE associate assigned to the Paul B. Stephens Exceptional Student Education Center (Paul B. Stephens). The Center serves vulnerable students with significant developmental disabilities and medical needs. ESE associates work under a classroom teacher's direct supervision. They must assist the teacher in all aspects of both the care and the education of the students. During the first semester of the 2011-2012 school year, Ms. Dacanay worked in the classroom of Paulette Pickering. Because Ms. Dacanay's performance in Ms. Pickering's class was not satisfactory, the principal, Gail Cox, reassigned her to the classroom of Linda Vest for the second semester, which started January 2012. Ms. Cox selected Ms. Vest's classroom because it did not have as many students as Ms. Pickering's, and the class was not as demanding. The reassignment was to give Ms. Dacanay an opportunity to improve her skills and continue working at the school. Also during 2011, Ms. Cox, along with other administrators and a teacher's union representative, met in October and November with Ms. Dacanay four times to review multiple deficiencies in her performance and offer improvement plans. In the meeting held November 10, 2011, Ms. Cox encouraged Ms. Dacanay to apply for other positions in the school system that would not be so demanding and would be a better fit for her. In January of 2012, Ms. Cox spoke to Ms. Dacanay and told her very directly, "This is not working, Rose. You need to find a different job. Even though everyone is nice and polite, you're still not doing your job, and you need to find another one that better fits your skills." Ms. Dacanay did not take this advice. She worked the remainder of the 2011-2012 school year at Paul B. Stephens. After summer break, she returned to employment in the 2012-2013 school year. She was assigned to assist Kim Gilbert. The students of Paul B. Stephens have emotional, mental, and physical disabilities. Many have severe and multiple disabilities. They are dependent upon the services of their teachers and teacher assistants. One of the students in Ms. Gilbert's class required the use of Dynamic Ankle Foot Orthotics (DAFOS). These are hard plastic inserts positioned around a child's foot before putting on the child's shoe. They must be positioned and wedged on carefully to avoid hurting the student. After correct placement, they are strapped on. The DAFOS are individually made for each wearer's feet. Ms. Dacanay had been instructed and trained on how to put DAFOS on. DAFOS position a child's foot to cure or resist deformity. They are uncomfortable even when properly applied. When DAFOS are put on the wrong foot, they are painful and can cause blisters and sores. They also do not properly perform their rehabilitative function. On October 23, 2012, Ms. Dacanay put a student's DAFOS on backwards. This would cause the student pain and eliminate the benefits of the DAFOS. Fortunately, Ms. Gilbert spotted the mistake and corrected it. The same student also needed and wore an arm splint. Ms. Dacanay had been instructed and trained on how to fasten the arm splints. On October 24, 2012, Ms. Dacanay was improperly fastening the arm splint. Ms. Gilbert noticed and corrected her. In 2012, Ms. Dacanay's duties included placing wheelchair-bound students in the bus and securing their wheelchairs. This service is critical to the students' safety and the safety of the other students. It requires properly fastening the students in their chairs with chest and foot straps to prevent them from falling from the chair or injuring their feet during transportation. Ms. Dacanay was trained in securing the students and their wheelchairs for transport. On October 29, 2012, Ms. Dacanay did not fasten the chest straps on one student's wheelchair. On October 30, 2012, Ms. Dacanay did not properly secure a student's feet for transport on the bus. Fortunately each time, other employees noticed the errors and corrected them. On another occasion, Ms. Dacanay did not properly fasten the chest strap of a student in a wheelchair on the bus. Another ESE associate checked the student's straps and tightened them properly. The students' wheelchairs were also strapped tightly in the bus to prevent movement or falling. Ms. Dacanay was properly trained on how to secure the bus hook-up straps. From October forward, Ms. Dacanay routinely failed to properly secure students for the bus. A fellow ESE associate regularly observed this and began routinely checking and tightening the straps for the students. Specifically, Ms. Dacanay did not properly fasten the wheelchair hook-ups on November 14 and December 4, 2012. Despite the fact that properly securing the wheelchairs was one of her duties, on December 4, 2012, Ms. Dacanay asked a student why he had not hooked up the side straps on his wheelchair. Ms. Dacanay's neglect of the task of securing students in their wheelchairs was so common that the other ESE associates who worked in Ms. Gilbert's class were concerned for the children's safety. Consequently, they regularly checked the wheelchairs of students for whom Ms. Dacanay was responsible to ensure that the students were properly secured and safe. They often found the straps loose and secured them. Swimming was part of the curriculum and services for some students. On November 5, 2012, while bringing students back from the pool, Ms. Dacanay used only one hand to push a student in a tall, cumbersome therapy chair. The chair was tall, unstable, and very difficult to maneuver along the sidewalk. With her other hand, Ms. Dacanay was escorting another student. Two other ESE associates yelled at her to stop. Ms. Dacanay did not, and the chair "wobbled" and went off the sidewalk. Ms. Dacanay was taking prescription medicine. She did not properly secure it, and a pill fell to the bathroom floor. Ms. Gilbert found the pill and gave it to the school nurse, Tomeka Miller. Ms. Dacanay went to Ms. Miller and asked her to return the pill. She also asked if anyone else knew about the pill. Ms. Miller advised Ms. Dacanay that Ms. Gilbert knew. The ready availability of the pill to the students with disabilities represented a potential risk to the students. One of the students for whom Ms. Dacanay was responsible was blind and had other issues. In the words of his teacher, Ms. Gilbert: That was my student who was blind. In addition to having a lot of other issues, he's a student who is transported in a wheelchair and he kind of cruises around furniture, but it's not a walker. He's very, very difficult, very strong, very stubborn. He has a lot of sensory issues, so you can't hurry him to do anything. It just makes the problem worse. Ms. Dacanay was aware of the student's issues and needs. On November 8, 2012, Ms. Dacanay was hurrying the student back into the classroom. She was urging him on and saying "come on, let's go." He became agitated. Ms. Gilbert instructed Ms. Dacanay to let the student calm down. Ms. Dacanay did not. This detrimentally affected the rest of the morning routine, including the student's therapy schedule. Ms. Dacanay denied each of the events described above. Her denials are not credible judged in light of the conflicting testimony, consistency of testimony among several witnesses, and consistent reports in contemporaneously created documents. In addition, Ms. Dacanay regularly displayed an inability to perform her work or learn her duties. Despite repeated instructions, she failed to correctly perform routine functions. When she worked with her students and the physical education teacher, Darlene Tickner, Ms. Tickner had to repeat instructions and requests multiple times to get her to work. Ms. Dacanay's inability to understand her duties caused Ms. Tickner to develop a "Teacher Associate Class Expectations" worksheet to help remind Ms. Dacanay and the other associates of their fundamental duties. Although the worksheet was given to all associates, Ms. Dacanay's repeated inability to perform the duties of her position was the reason Ms. Tickner prepared the worksheet. Although Ms. Dacanay was only responsible for seven students, she could not even remember their names. Ms. Dacanay also demonstrated a pattern of not paying attention to the students, preferring instead to perform chores. For instance on September 19, 2012, when Ms. Dacanay should have been assisting with a student activity, she left the classroom area for about ten minutes and spent her time folding and storing student bathing suits. This was after she had read and signed the "Class Expectations" worksheet that listed "Focus on the students and the activity, not chores" first. On another occasion, Ms. Dacanay neglected to bring a blind student who also needed a wheelchair, because of cerebral palsy, to the physical education class. Ms. Tickner asked Ms. Dacanay where the student was. Ms. Dacanay said "she didn't know." Ms. Tickner sent Ms. Dacanay back to the classroom to get the student. Ms. Dacanay returned without the student and said "she couldn't get him into his chair." Ms. Tickner had to go get the student and bring him to the class. As the "Class Expectation" worksheet notes and Ms. Tickner had emphasized, class participation was important for the students and participation with the students was an important part of the associate's job. Once when Ms. Tickner specifically instructed Ms. Dacanay to work with the other associates getting the students in and out of the pool, Ms. Dacanay disobeyed. Instead, she followed a mobile student who did not need assistance around. On another occasion, Ms. Dacanay was supposed to prepare the students for swimming. She removed the diaper from a child who was not going swimming. Similar issues and concerns about Ms. Dacanay's focus and attention to her duties caused the physical education teacher the year before, Mark Manley, to conclude that he could not leave the room if Ms. Dacanay was working with the students. She repeatedly demonstrated problems "focusing on tasks, staying on task . . . inability to stay with a program all the time." The problems Ms. Dacanay had during the 2012-2013 school year were similar to earlier performance failures during her time at Paul B. Stephens when she was working with Ms. Pickering. Ms. Cox met with Ms. Dacanay on October 18, 2012. The letter of reprimand following that meeting summarized the failings identified above and others. The letter advised Ms. Dacanay: [Y]ou appear to avoid work, especially toileting/changing student. Your ability to learn your job or perform your work responsibilities has been questioned and requires your teacher to constantly monitor you to ensure student safety. For example you appear not to remember which student uses which chair nor how to secure students in their chairs. This has happened several times. After 3-4 weeks in school you still needed direction to assist students with table activities before morning group. You have been off-task during PE and you were not able to monitor students assigned to you when they were in the pool. You also fell asleep during music class. In addition to classroom issues the assistants on the bus with you have stated that you pretend to forget how to hook up wheelchairs and harnesses, and do not do your share on the bus. You also fall asleep regularly on the way home in the afternoon which also puts more work on the other assistants. Before working at Paul B. Stephens, Ms. Dacanay received less than satisfactory ratings on her evaluations beginning on February 20, 2007, at Largo High School, where her evaluation noted that she needed to improve punctuality and that she left her assigned area without notifying the teacher. In all, between February 20, 2007, and February 10, 2011, Ms. Dacanay's evaluations reflect 16 instances of being evaluated as unsatisfactory or in need of improvement in areas that include punctuality, judgment, job knowledge, quality of work, quantity of work, initiative and attendance. The weight of the persuasive, credible evidence established that Ms. Dacanay was not competent to perform her duties, did not perform her duties, and did not improve her performance despite being given repeated opportunities to improve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order finding that there is just cause to terminate Ms. Dacanay's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes. DONE AND ENTERED this 27th day of November, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 November, 2013.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Richard Stephens is a tenured instructional employee of the Leon County School Board, and has been a science teacher at Nims Middle School for seven years. On October 31, 1980, an incident occurred on the Nims Middle School premises during the lunch hour. A female student, Loretta Brown, called a male student, Johnny Bryant, an offensive name inside the school cafeteria. As she was standing on the outside of the double doors near the back entrance to the cafeteria, Johnny Bryant jumped out of his seat at the lunch table, ran outside and either jumped on Miss Brown's back or pushed her. Miss Brown flipped Bryant over, he landed on the cement sidewalk, got up and they began to fight. As respondent Stephens was leaving the cafeteria with his students, he noticed that a male student (Bryant) had jumped up from his chair and run out the door. As respondent walked out the door, he saw a male and a female student fighting. Student Bryant had student Brown pinned up against a railing, was holding her by the collar with his left hand and was violently swinging at her with his fisted right hand. The students were hitting each other about the face and the stomach. When the respondent initially encountered the two fighting students, he told them to stop fighting. They continued to fight. Being unable to verbally stop the altercation or to get between the students, and feeling that serious damage to the students could result, respondent reached under student Bryant's left arm and around his chest and tried to grasp Bryant's swinging right hand. Respondent was attempting to pull the students apart, but Bryant continued to hold on to Brown's collar. When respondent grabbed Bryant, Bryant gave no indication of control and respondent felt that Bryant needed further restraint. Respondent was eventually able to get Bryant's right arm down by his side. Bryant twice attempted to elbow respondent in the groin area. In order to avoid this attack, respondent turned his body. When he did so, it appeared that Bryant would get away from him. Respondent then lost his balance, and having made the decision to fall to the ground rather than to let Bryant go, both respondent and Bryant fell to the concrete walkway. When this occurred, respondent put Bryant's arm behind his back and squatted over Bryant's back with his knees on the ground. While on the ground, Bryant continued to kick his feet, move his head up and down and yell. Respondent told him on several occasions that he would allow Bryant to get up when Bryant calmed down. When two other teachers, Richard White and Gerald Chandler, came to the scene, Bryant was still struggling with respondent on the ground. Mr. White helped respondent and Bryant up and White and respondent continued to hold on to Bryant's arms. When Mr. Humphries, the Assistant Principal for Administration, came, Bryant was not calmed down and was continuing to try to get away. Mr. Humphries shook Bryant by the arm and told him to stop. At that time, Bryant did calm down and the students were taken to Mr. Humphries' office. Throughout the incident, respondent was of the opinion that if he let Bryant go, Bryant would have injured him or someone else. The two fighting students testified that they would have continued fighting if respondent had not stopped them. Bryant admitted that while he was on the ground with respondent, he was still mad, was yelling and that after respondent let him get up, he was still attempting to get free. Another teacher who witnessed a part of the incident stated that Bryant was not in control and that it was difficult to determine what Bryant would do if he were released. Other witnesses who observed portions of the incident testified that respondent had Bryant under control, was holding his arm in a "hammerlock" or "chicken wing" position and that Bryant was complaining that respondent was hurting his arm. When Assistant Principal Humphries investigated the incident, Bryant complained of bumping his knee, but made no remark concerning his arm. During the preplanning period prior to the 1980-81 school year, teachers at Nims Middle School were not given specific instructions or guidelines as to how to break up a fight between two or more students. Subsequent to the October 31, 1980, incident described herein, teachers were instructed that in cases of student fightings, they may use whatever force is necessary to break up the fight and that they have a right to defend themselves and protect other students. Generally, the amount of force to be used will be a judgment call on the part of the teacher dependent upon the specific situation. On November 30, 1979, a letter written by Devurn H. Glenn, the former Principal of Nims Middle School, concerning respondent's actions when stopping a fight between two students on November 8, 1979, was placed in respondent's personnel file. This letter states that ". . . while you were carrying out your duty in stopping the fight, the amount of force used by you was in excess of the minimum necessary to bring the fight to a conclusion. In light of the above finding, I instruct you to use more restraint in dealing with similar situations in the future."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Notice of Charges filed against the respondent Richard Stephens be DISMISSED. Respectfully submitted and entered this 6th day of May, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1981. COPIES FURNISHED: Charles Johnson 2757 West Pensacola Street Tallahassee, Florida 32304 Pamela L. Cooper Staff Counsel Florida Teaching Profession-NEA 213 South Adams Street Tallahassee, Florida 32301 Charles Couch, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32312
The Issue The issues to be determined in this proceeding are whether Respondent has committed the violations alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts Respondent, Seneka Rachel Arrington, holds Florida Educator's Certificate 1012300, which is valid through June 2009. Respondent was employed as a Language Arts Teacher at Matanzas High School in the Flagler County School District during the 2006/2007 year. On or about October 9, 2006, Respondent was terminated from her teaching position with the school district. On or about April 3, 2007, Respondent removed merchandise from a retail establishment without paying for it and with the intention of converting it to her own use. Respondent was arrested and charged with one count of retail theft. On or about May 29, 2007, Respondent entered into a deferred prosecution agreement with the state attorney's office with regard to the charge of retail theft. Findings of Fact Based Upon Evidence Presented at Hearing Dr. Hugh Christopher Pryor is the principal at Matanzas High School (Matanzas). Dr. Pryor hired Respondent in May 2006 for a position as an English teacher, to begin work in August 2006. During her employment at Matanzas, Respondent also worked as an assistant cheerleading coach. K.M. was a freshman at Matanzas during the 2006-2007 school year. She was on the cheerleading squad and knew Respondent as one of her coaches. She was not a student in any of Respondent's classes. M.H., K.M.'s boyfriend at all times material to the allegations in this case, was a 14-year-old freshman on the Matanzas football team and a student in one of Respondent's classes. C.J. was another freshman member of the football team and a friend of M.H.'s. He was not a student in any of Respondent's classes. Respondent was well-liked by students at the high school. Although K.M. testified that she was authoritative and strict with the girls on the cheerleading squad, she got along with all of the girls and "kind of was like us." K.M. regarded her more as a friend than as a teacher. On occasion, K.M. used Respondent's cell phone. On October 6 or 7, 2006, Donald Apperson Jr., the school's resource officer, was approached by a friend at a social outing who suggested he check into whether "the black cheerleading coach" at Matanzas was having a sexual relationship with some of the football players. Respondent was the only teacher who could fit this description. On Monday, October 9, 2006, Mr. Apperson reported this information to Ken Seybold, who was an assistant principal and the athletic director at Matanzas. The principal was notified and an investigation was initiated. Respondent was notified of the allegations, which she denied, and was sent home pending completion of the investigation. The investigation consisted of speaking with several members of the football team and was completed in a single day. At the end of the day, the principal determined that Respondent's employment would be terminated because she was still under a 97- day probationary period wherein she could be terminated without cause. Respondent was notified of the decision to terminate her employment the next day, October 10, 2006. Because she was terminated within the statutory probationary period for the initial contract for employment, no cause was listed. While Dr. Pryor testified that he was generally dissatisfied with her performance, his testimony regarding why was sketchy at best, and there was nothing in her personnel file to indicate that she was counseled in any way with respect to her performance. Teachers in the Flagler County School District are generally admonished not to transport students in a teacher's personal vehicle. Transporting students is only condoned where the student's parent has been notified and permission granted, and where an administrator has been notified of the need to transport the student. This procedure is apparently covered during orientation for new employees. However, no written policy regarding the transport of students was produced or cited, and Dr. Pryor indicated that Respondent was late to the orientation session prior to the beginning of the school year. It cannot be determined from the record in this case whether Respondent was aware of this policy. Respondent transported students in her personal vehicle on two occasions. On the first occasion, Respondent took K.M. and one other cheerleader to the Volusia Mall in order to look for dresses for a dance at school. K.M. testified that her mother had given permission for K.M. to go with Respondent on this outing. Respondent and the two girls were accompanied on this outing by Respondent's mother and sister. The second outing also involved shopping for clothes for the school dance. On this trip, Respondent took K.M. as well as M.H. and C.J. in her car after football and cheerleading practice. The four went first to the St. Augustine outlet mall and then to the Volusia Mall to shop for clothes. K.M. testified that her mother had given her permission to go with Respondent, but probably would not have given permission if she had known the boys would also be going. Neither M.H. nor C.J. had permission from a parent to ride in Respondent's car. The boys testified that they both drove Respondent's car while on this trip, although the testimony is inconsistent as to who drove when, and is not credible. Neither boy had a learner's permit to drive. No evidence was presented regarding the dates of these two shopping trips, other than they both occurred prior to September 29, 2006, which was the date identified for the dance. This same date is identified as the date for a football game in Cairo, Georgia, discussed below. After the conclusion of the second shopping trip, Respondent dropped K.M. off at her home. At this point, the boys testified, and stated as part of the district's investigation, that Respondent offered to take them back to her apartment to spend the night. According to M.H. and C.J., they went with Respondent back to her apartment where they ate fast food and watched television. They claimed that Respondent told them they could sleep in her bed while she slept on the couch. At some time during the night, Respondent allegedly crawled in the bed between the two boys, ground her hips against M.H.'s crotch, and took his hand and placed it outside her shorts against her vaginal area. M.H. claimed this made him uncomfortable and he moved to the floor, while Respondent continued to sleep in the bed with C.J. In the morning, the boys claim that Respondent woke them up and drove them to school. M.H. testified that he was in Respondent's English class and that she treated him differently than the other students. He, along with other boys at school, fantasized about the "fine, black English teacher." He thought it was cool to spend extra time with her and led others to believe he was having sex with her until one of his friends questioned the propriety of doing so. He testified that he "freaked out" while on a bus going to an out-of-state football game September 29, 2006, because Respondent kept calling him on his cell phone and he did not want to talk to her. Juxtaposed against the testimony of C.J. and M.H. is the testimony of Monica Arrington and Karastan Saunders. Monica Arrington, Respondent's younger sister, testified that during the period of time Respondent was employed at Matanzas, she shared Respondent's apartment and sometimes helped her out with the cheerleaders. Monica was a freshman at Bethune Cookman College and did not like living on campus, so instead lived with her sister. Ms. Arrington did not have her own transportation and relied on her sister to drop her off at school each day. Ms. Arrington confirmed that she went with Respondent, her mother and two female students to Volusia Mall to shop for clothes on one occasion, but did not identify any other time where students were at Respondent's apartment. Karastan Saunders also testified that during the fall of 2006, he lived at Respondent's apartment in exchange for paying a portion of the utilities. Mr. Saunders testified that he spent every night at the apartment because he did not have the funds to go elsewhere, and that he did not recall anyone coming over to the apartment other than family and mutual friends. After considering all of the evidence presented, the more credible evidence is that while Respondent took students shopping on at least one occasion, the testimony of M.H. and C.J. that they spent the night at Respondent's apartment is not credible. M.H. admitted that he has lied to his dad "because everybody lies to their dad sometimes." He claimed he lied to Respondent to avoid going to Orlando with her and about having a learner's permit to drive, and that he lied to his father about where he was the night he claims to have been at Respondent's apartment. M.H. also insinuated to his friends that he had a sexual relationship with Respondent, and that all of the boys thought she was the prettiest teacher at the school. However, he did not want Respondent to be arrested and would not cooperate with authorities. Even during the course of the hearing, his testimony was inconsistent regarding whom he told about his relationship with Respondent and what he told them. Significantly, C.J.'s testimony did not corroborate the alleged inappropriate touching M.H. claimed. C.J. did not witness any inappropriate touching or M.H. and Respondent having sex. While M.H. claimed that Respondent kept calling him while on the bus to Georgia for a football game, no phone records were produced and no one else's testimony was presented to support the claim. K.M. admitted that M.H. has lied to her on occasion and that he has had some issues with drugs and alcohol.1/ C.J.'s testimony is also not very credible. Like M.H., C.J. lied to his father about his whereabouts on the night in question. While he testified that he sometimes drove his dad's car to school without permission, his father testified that he only has one car and uses it every day to get to work. While M.H. claimed C.J. told him that Respondent and C.J. had sex the night they were allegedly at the apartment, C.J. denied it. He also stated that he was suspended for five days for bringing a laser to school during the timeframe related to this case, a suspension that his father knew nothing about. Likewise, C.J.'s claim that he went with Respondent on some unspecified weekend to Orlando while she got her cheerleading certification is not credible. By contrast, both Monica Arrington and Karastan Saunders were candid, consistent, calm and forthright while testifying. While both C.J. and M.H. were not where they were supposed to be on the night in question, they were not at Respondent's apartment. After Respondent was terminated from her employment, the allegations that she engaged in an appropriate relationship with a student were reported by local media. The publicity was extensive. Because the allegations involved alleged sexual conduct with a minor that would have occurred in Volusia County as opposed to Flagler County, the matter was referred to authorities in Volusia County. However, no criminal charges were ever brought against Respondent because neither M.H. nor his father wished to cooperate with authorities.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent violated Section 1012.795(1)(c), Florida Statutes, as alleged in Count 1, and dismissing Counts 2-7 of the Amended Administrative Complaint. It is further recommended that the Commission reprimand Respondent, impose a $500 fine and place her on one year of probation in the event that she works as a teacher in a public school setting. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of March, 2009.
Findings Of Fact Rasberry holds Florida Teaching Certificate Number 069503 post-graduate rank II, valid through June 30, 1983, covering the areas of physical education, health education and junior college. At all times pertinent hereto, Rasberry was employed in the public schools of Duval County, at Matthew Gilbert Seventh Grade Center as a physical education teacher. During the summer school session of 1978, at Matthew Gilbert, Rasberry was assigned as teacher for the physical education class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 28 physical education students be enrolled and in attendance. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Mr. James E. Thompson was principal of Matthew Gilbert during the summer school session of 1978. The usual procedure established by Mr. Thompson for the summer school physical education was to assign two teachers to the physical education program with only one of the teachers being responsible for attendance and grade records. Such was the case during summer school 1978. Rasberry was one of two teachers assigned to the physical education program. Mr. Rasberry was excluded from the requirement of reporting attendance and grades because of his other extensive duties. This procedure had the "blessing" of principal Thompson. Rasberry never submitted any paper work regarding the physical education course for summer school 1978. All grade reporting forms and attendance records were prepared and submitted by another instructor who in some cases signed Rasberry's name to the form. However, at no time did Rasberry sign his own name to any of these forms. While the evidence demonstrated that a high number of discrepancies exist in these reporting forms, there is no evidence to establish any connection between Rasberry and the inaccurate attendance data or the award of undeserved grades.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 1st day of March, 2011.
The Issue The primary issue in this case is whether, as the district school board alleges, a teacher used inappropriate force against one or more students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to impose a ten-day suspension without pay on the teacher as punishment.
Findings Of Fact The Palm Beach County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all times relevant to this case, Respondent Zedrick Barber ("Barber") was employed as a history teacher at Howell L. Watkins Middle School in Palm Beach Gardens, a position which he had held for the preceding eight years. This case arises from two separate incidents, which occurred in the spring of 2014. In both situations, the School Board alleges, Barber used inappropriate force against a student. Barber acknowledges that he made physical contact with a student on each occasion but claims that he did so——reasonably under the circumstances——to prevent harm to the student, other students, and himself. As Barber is the only person having personal knowledge of the events in question who testified at hearing, the evidence supports his accounts. The findings below are based on Barber's testimony and statements concerning the incidents. The earlier episode occurred on February 5, 2014. On that day, a girl in Barber's class named D.G. became angry at the boy sitting behind her because he kept placing his feet on the back of her chair. Attempting to discourage him from continuing to annoy her in this manner, D.G. began punching the boy's legs. He refused to budge, however, which merely increased D.G.'s frustration. She grew increasingly loud and disruptive, causing Barber to intervene. He instructed D.G. to stop hitting the boy, and she calmed down. Before long, though, D.G. resumed punching the boy. Barber directed D.G. to place a chair just outside the classroom door and sit there, where Barber could keep an eye on her. This upset D.G., who shoved a book in Barber's direction, which fell from her desk to the floor. D.G. then rose from her seat. Instead of obeying Barber's instruction to relocate, D.G. turned her back on the teacher and started pushing her desk toward the boy who had aggravated her. At this point, Barber stepped in to prevent D.G. from overturning the desk and hurting the boy. He reached out and grabbed D.G.'s belt loop, pulling her towards himself. D.G. broke free and ran out of the room. She was later returned to Barber's classroom and finished the day without further incident. Under the circumstances, Barber's de minimis contact with D.G.'s person constituted a reasonable effort to protect D.G. and others from personal injury or conditions harmful to learning. The second incident took place on March 31, 2014. J.T. entered Barber's classroom that day brandishing a blister pack of pills and bragging that he had drugs. Barber told J.T. to sit down, for the students would be taking a quiz. During the quiz, J.T. became disruptive, jumping up and exclaiming that he needed to leave, to take his pills. Barber, who had not received any notice that J.T. had a legitimate reason to take medication while in school, reasonably refused to let J.T. out of class to ingest pills, the nature of which Barber was unaware. Barber instructed J.T. to take a seat and finish his assignment. J.T., however, continued to misbehave, demanding to take the pills. Barber made a gesture which signaled that he would push the classroom "panic button" to call for assistance if J.T. persisted in making trouble. This did not deter J.T., who stood up defiantly. Barber feared he might bolt for the door and moved to block J.T.'s exit. As Barber walked toward the door, J.T. charged the teacher. J.T. stumbled as he drew near to Barber, striking him in the chest with both fists as he fell forward. Barber held J.T.'s arms, pinning them against the student's sides, while asking J.T. to calm down. J.T. screamed, "Let me go!" J.T. struggled to escape and began kicking Barber repeatedly. While restraining J.T. in an embrace-like hold to prevent the student from assaulting him or others, Barber pressed the panic button to summon assistance. A security guard soon arrived and Barber let go of J.T. The student made a sudden movement as if to hit Barber, but the guard quickly took hold of J.T. and removed him from the classroom. Under the circumstances, Barber's physical contact with J.T., which was defensive in nature, constituted a reasonable effort to protect J.T. and others (including Barber himself) from personal injury or conditions harmful to learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Barber of all charges brought against him in this proceeding. DONE AND ENTERED this 31st day of August, 2015, 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 August, 2015. COPIES FURNISHED: Jean Marie Middleton, Esquire School District of Palm Beach County Office of General Counsel 3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239 West Palm Beach, Florida 33416-9239 (eServed) Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) Dr. Robert Avossa, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues are whether Petitioner has just cause to discipline Respondent for restraining a student with disabilities, in violation of Petitioner’s policy 5.181(4)(a), (4)(b)(iv), and (6)(d)(iii)(A), and, if so, whether Petitioner may depart from progressive discipline and impose a one-day suspension, as provided by the Collective Bargaining Agreement Between Petitioner and The Palm Beach County Classroom Teachers Association (CBA).
Findings Of Fact Respondent is a certified ESE teacher and has taught ESE classes for 12 years. Since 2012, Respondent has taught at Royal Palm School, which is an ESE center operated by Petitioner for students ranging in age from 3 to 22 years. During the 2014-15 school year, as well as summer school of 2015, Respondent taught a K-1 class of mostly five- and six-year-olds in an intellectual disabilities class. At the start of the 2014-15 school year, Respondent's classroom consisted of 12 ESE students, although Respondent's class, by the end of the school year, consisted of 11 students and, in summer school, 9 students. At the start of the school year, the principal assigned two aides to Respondent's classroom. The students' disabilities were varied. Student 10 suffers from Down Syndrome, has deficits in vision and hearing, and was the most cognitively challenged of the students in the class. Student 10 used a "chew toy" for oral stimulation, wore diapers, and required full assistance when eating. He was unaware of danger and required adult supervision at all times, including a curb-to-curb escort on arriving and leaving school. Student 10's delays in cognition, communication, and social/emotional development limited his interactions with adults and peers. Based on his May 2015 IEP, by the end of the school year, Student 10 still could not attend for more than five seconds in response to an adult voice, required hand-over-hand assistance to mark paper, demonstrated no hand dominance, repeatedly grabbed nearby items and placed them into his mouth for oral stimulation, could not maintain eye contact, and (if permitted) wandered about the classroom climbing onto chairs and tables or spinning in continuous circles. He was unable to walk more than 300 feet on uneven surfaces independently without losing his balance and engaged in various behaviors, likely to self-stimulate or to modulate stimulation, including rocking side to side while standing or rocking his chair back and forth while sitting. Student 10 had rocked his chair the prior school year until his teacher placed the chair against a wall, so he could not rock it. Student 11 was aggressive and would slap, kick, bite, spit, and throw things at adults and peers. Another student was blind and defenseless. Student 11 had bitten this student once and had tried to bite him on another occasion, so adults had to ensure that Student 11 could not get at the defenseless student, who had been attacked on two other occasions by other students. Another student suffers from Dandy Walker Syndrome, which involves swelling of the cerebellum due to the collection of intracranial fluids. She is deaf, tends to aspirate her food, suffers seizures, has limited mobility, and is highly aggressive. Another of the students has a serious liver disorder, so that the consumption of certain foods could be deadly. Although her mother sent food to school every day, the student tried to take other students' food and eat it. She also must be kept from bending over, which may necessitate emergency hospitalization. Another student is developmentally disabled, deaf, and blind. These five students required one-on-one adult supervision as much of the time as adult staff was available to provide it. In addition to Student 10, four other students were diagnosed with Down Syndrome. One of these students was limited to baby food and tried to escape from the classroom every time he approached the door. He also threw things at other students. One of the other students with Down Syndrome is much less mobile, but constantly pushed over chairs. Much time of the adults in Respondent's classroom was spent in toileting. Ten of the students were still in diapers. These students required considerable assistance in the bathroom to avoid accidents that would leave the area soiled with feces. One aide estimated that nine of these students averaged four diaper changes daily; the tenth--the student with the liver condition--required six or seven diaper changes daily. She estimated that an aide would spend an average of three minutes changing a wet diaper and six minutes changing a soiled diaper, which, she testified, occurred with a high frequency. The aide added that considerably more time was involved if the child's clothing also required changing, but she did not estimate the frequency of this occurrence. Ignoring clothing changes, toileting activities thus consumed at least three hours daily of aide time. Aides were also required to devote one hour daily to hall duty and substantial blocks of time to serving breakfast and assisting with children leaving or entering buses or other transportation. In sum, due to these responsibilities, half of an aide was not available for supervision in the classroom during instruction or transitions. The principal's assignment of two aides to Respondent's classroom was based on Petitioner's policy of one aide per every six ESE students. Although the staffing of Respondent's classroom conformed to Petitioner's staffing policy, at the start of the 2014-15 school year, Petitioner and her two aides were overwhelmed by the needs of their 12 students, prompting Respondent to seek help from her administrators. The principal agreed to provide Respondent relief if the District office approved the creation of another classroom at Royal Palm School. However, the enrollment at the school failed to meet the threshold for the addition of another class. In the alternative, the principal directed other persons, including an occupational therapist, physical therapist, varying-exceptionalities teacher, deaf-and-hard-of-hearing teacher, speech-language pathologist, and behavior resources teacher, to meet and find a solution for Respondent. The group appointed by the principal met four times in November 2014 to devise a plan to help Respondent with her entire class. The first meeting took place on November 7, 2014, with 13 attendees, including Respondent. Although the principal did not attend the first two meetings, the perspective of the administration was presented by the behavior resources teacher, who led off the meeting by acknowledging that the principal had asked them to identify ways to help Respondent better meet the "safety and needs" of her students using existing staff. Respondent spoke next, stressing the need for "additional staff" and distributing a handout describing her students in general terms. The behavior resources teacher suggested splitting the class in two by allowing aides and "support staff" to use an adjacent, underused room to teach half the class while Respondent taught the other half. Respondent stated that she needed another aide. In addressing a suggestion that an aide might volunteer to help out in Respondent's classroom, one of the existing aides mentioned that the other aides knew of the problems, such as children removing their clothes and one child playing with his stool, so any aide would have to be assigned. Someone asked if the classroom was set up for "good teaching," and Respondent replied, "yes, but we have serious danger issues." The existing aide noted staffing deficiencies, but the behavior resources teacher answered, "Do the best with the people we have now." The meeting concluded with several persons offering to supervise some of Respondent's students during parts of the day, but a unique aide to one child worrying that she and the nurse would be exposed to potential liability if they were expected to serve the needs of any students besides the single student to whom they were assigned. A few days later, a group of 10 persons reconvened. The minutes of this meeting conclude that all staff was willing to try to help Respondent, there was a "great need for additional help to assist with toileting and general assignments throughout the day," and Respondent continued to insist on additional staff. One week after the first meeting, 14 persons met for a third meeting. This group included Respondent, the principal, and the assistant principal. Attendees addressed the changes that had already been made, including greater use of the adjacent room effectively to reduce the ratio of students to adults in Respondent's classroom. The principal agreed to hire a third aide. The group discussed that students were overturning furniture and changes were needed to avoid injury to someone. Someone had suggested bigger tables--presumably, too heavy for the students to overturn--and the appropriate person was trying to locate some. The final meeting took place on November 24, 2014, with 13 attendees, including Respondent, the principal, and the assistant principal. A discussion of Student 11 mentioned the proper use of a Rifton chair, which is equipped with a lap belt. The behavior resources teacher emphasized that the chair must be used properly, and the assistant principal added that it may not be used for restraint. The third aide had been assigned to the classroom, and Respondent reported that she had helped a lot. About three weeks later, during the final week of school before winter break, Respondent reported to the behavior resources teacher that the behaviors in her classroom had improved and transitions were proceeding smoothly. Respondent did not elaborate at the hearing on the effect of the behavioral improvements that followed the assignment of a third aide to her classroom toward the end of the first semester of the 2014-15 school year. Clearly, adult time was consumed partly by dealing with maladaptive behaviors, but many of the time-consuming features of the class, as described above, were not behavioral, at least in the sense of their amenability to dramatic change: for example, the demanding toileting needs of all but two of the students; Student 10's cognitive challenges, unawareness of danger, need for oral stimulation, need for hand-over-hand assistance to mark a paper, and spinning, rocking, and tendencies to climb atop the furniture; and the extraordinary needs of the students with Dandy Walker Syndrome, the liver disorder, and development disability with blindness and deafness. The CBA authorizes discipline of employees for "just cause." CBA, Art. II, § M, ¶ 6. Petitioner is required to impose progressive discipline, which, in ascending order, is a verbal reprimand with a written notation, written reprimand, suspension without pay, and dismissal. CBA, Art. II, § M, ¶ 7. Petitioner is limited to progressive discipline "[e]xcept in cases which clearly constitute a real and immediate danger to the District" or "the actions/inactions of the employee constitute such [sic] clearly flagrant and purposeful violations of reasonable school rules." Id. Petitioner has failed to prove just cause for disciplining Respondent in connection with Student 11. Petitioner failed to prove the material allegations involving Student 11 other than that, when he became overstimulated and unruly, Respondent directed him to sit on a bean bag chair in the back of the room so that he could recompose himself before returning to his seat. This directive was entirely reasonable, especially given Student 11's above-noted proclivity toward biting and spitting upon his neighbors and staff, including one particularly vulnerable child. The evidence fails to establish that any adult folded up Student 11 "like a taco" in the bean bag chair or directed Student 11 to fold himself up in the chair. It is possible the sides of the chair could have been pulled up to interfere with the occupant's sight line of something that had been distracting him or someone he had been assaulting, but no evidence suggests that pulled-up sides substantially blocked Student 11's view of the room or that the sides would remain pulled up for very long. When giving a statement to Petitioner, Respondent's casual description of her use of the bean bag only underscores that its use was innocuous; this statement did not constitute, as Petitioner contends, a concession of child abuse in an unguarded moment during an intensive interrogation. On this record, the evidence fails to prove that Respondent's use of the bean bag chair was in any way inappropriate, and Student 11 is not further addressed in this recommended order. On the other hand, Petitioner has proved just cause for disciplining Respondent in connection with Student 10. Petitioner proved that, in violation of Petitioner's policy governing the restraint of ESE students, on several occasions, Respondent attached a bungee cord to the legs of Student 10's chair, stretching the cord around the legs of the table at which Student 10 sat. The cord did not touch Student 10, unless he could reach it with his feet, nor did the cord force the chest or stomach of the child to press against the edge of the table. But tethering the chair to the table prevented Student 10 from pushing his chair back from the table to get out of the chair without assistance from an adult. It is not entirely clear when Respondent first used the bungee cord to restrain Student 10. She applied the bungee cord for not more than one hour at a time when one of the aides was at lunch or unavailable in the classroom due to toileting or other duties that removed her from direct contact with the students, and Student 10 was rocking in his chair, at risk of tipping over. This practice clearly took place after the addition of the third aide to the classroom. At no time did Student 10 acknowledge the presence of the bungee cord or indicate any embarrassment at its use. Respondent's use of the bungee cord was not a means to punish Student 10. Respondent's use of the bungee cord was not for her personal convenience, such as to permit Respondent to escape her instructional and supervisory duties during the school day. Respondent's use of the bungee cord was to protect Student 10 from tipping over his chair and harming himself while allowing Respondent and the aides to monitor more closely other vulnerable students. Respondent worked hard to obtain help in her classroom, and administrators responded with a third aide. It seems that the additional adult may have helped with the more behavioral problems. But the more intractable issues presented by the students still had to be managed, and Respondent continued to advocate for the needs of her students. At one point during the school year, Student 10's mother gave to Respondent a prescription for occupational therapy, physical therapy, and speech therapy. Respondent delivered this prescription to the school's occupational therapist, who said they would evaluate Student 10, but not until the end of the school year, despite the fact that the child obviously suffered from significant deficits that are properly addressed by occupational therapy. The record provides no support for a departure from progressive discipline. If every violation of the policy restricting the restraint of ESE students justified a departure from progressive discipline, the policy and perhaps the CBA should so provide, but they do not, so it is necessary to analyze the circumstances of Respondent's violation from the perspective of the language of the CBA's departure clause. In general, Petitioner has failed to prove by clear and convincing evidence that Respondent's use of the bungee cord clearly constituted a real and immediate danger to the District. Not a natural person, the District is most obviously jeopardized by legal liability. There is no evidence of the reaction of the mother of Student 10 upon being told of the use of the bungee cord with her son. There is no evidence of any legal action that has been commenced or is likely to be commenced by Student 10's mother, any advocate for disabled students, or any federal or state agency responsible for monitoring compliance with the Individuals with Disabilities Education Act. Investigations by the Department of Children and Families and Petitioner's police were closed without any action. Nor has Petitioner proved by clear and convincing evidence that Respondent's acts and omissions constitute clearly flagrant and purposeful violations of reasonable rules. The reference to "reasonable" rules is puzzling, as though some rules are not reasonable, but, if it must be said, Petitioner's policy restricting the restraint of ESE students is reasonable. Also, Respondent's violation was purposeful. Admitting that she never told any administrator about her use of the bungee cord, Respondent testified that she did not know that her use of the cord violated Petitioner's policy against restraints when applied to ESE students. If Respondent meant that she was unaware of Petitioner's policy addressing the restraint of ESE students, this testimony is discredited. Even the aides understood that there was a general prohibition against restraining ESE students. Also, during one of the four meetings in November 2014, one or two participants alluded to the policy. Lastly, generous portions of the policy are incorporated in the CBA. If Respondent meant that she was unaware that her use of the bungee cord violated Petitioner's policy, this testimony also is discredited. The purpose of the bungee cord was to restrain Student 11, and the policy broadly restricts the restraint of ESE students. Petitioner thus proved that Respondent's violation was purposeful because she knew of the policy restricting the restraint of ESE students, knew that the bungee cord restrained Student 10's freedom of movement, and knew that her use of the bungee cord violated the policy. The CBA requires, though, that the violation also be flagrant. Flagrant means " conspicuously offensive <flagrant errors>; especially: so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality <flagrant violations of human rights>." http://www.merriam- webster.com/dictionary/flagrant. The bungee cord itself was inconspicuous, as it extended a few inches about the floor under a chair and a table amid a classroom of tables and chairs. No administrator who happened by Respondent's classroom for the several months that the bungee cord was in intermittent use ever noticed it. Other students appeared not to notice the use of the bungee cord, as Student 10 suffered no embarrassment from the use of the bungee cord in this manner. Respondent's use of the bungee cord was not conspicuously offensive. All three aides witnessed Respondent's use of the bungee cord for several months, but said nothing and did not seem to think that the use of the bungee cord presented much, if any, of an issue. The third aide, who had worked only part of the school year, mentioned the bungee cord to the assistant principal, but primarily as support for her complaint that Respondent's summer-school class of nine students could not be served by only two aides. A conspicuously offensive act would have generated more dramatic responses from the aides. Respondent's motivation in using the bungee cord also undermines a finding of flagrancy. As noted above, the class presented serious demands on the four adults. Especially when one or two aides were unavailable due to other duties, the bungee cord kept Student 10 from harming himself and allowed Respondent and the available aide or aides to better serve the other children, as in preventing one from striking a particularly vulnerable child, preventing one from eloping, and preventing one from bending over or eating others' food, or providing a few extra minutes of direct support to a developmentally disabled child who could neither see nor hear what was going on around him. Respondent's use of the bungee cord did not expose Student 10 to an unreasonable risk of personal harm. An adult could quickly remove him from the tethered chair, probably more quickly than she could remove a child strapped into a Rifton chair. In no way did this restraint pose as much risk as that posed by one or more adults’ grasping and holding a child, say, pinned to the ground. Student 10 could not self-evacuate with or without the bungee cord. Whatever theoretical risk of harm was posed by the few seconds that it would take for an adult to push the tethered chair back to allow Student 10 to get out of his chair was more than offset by the gain in safety from stopping the climbing atop furniture and tipping the chair back. When administrators at Royal Palm School learned of Respondent's use of the bungee cord during summer school in 2015, they immediately removed Respondent from her teaching assignment under her summer-school contract, without pay, for the remaining 12 days of summer school. The following year, she was assigned alternative duties that did not involve student contact, but was paid at her regular rate.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding just cause for disciplining Respondent for a violation of Petitioner’s policy 5.181(k)(ii) in connection with the restraint of Student 10, issuing a verbal reprimand with a written notation instead of the proposed one-day's suspension, and denying Respondent's claim for back pay. DONE AND ENTERED this 16th day of August, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of August, 2016. COPIES FURNISHED: Nicholas Anthony Caggia, Esquire Law Office of Thomas L. Johnson, P.A. 510 Vonderburg Drive, Suite 309 Brandon, Florida 33511 (eServed) Jean Marie Middleton, Esquire Laura E. Pincus, Esquire School Board of Palm Beach County Office of General Counsel 3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239 West Palm Beach, Florida 33416-9239 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Dr. Robert Avossa, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Before his current assignment to a textbook depository, respondent Kerby Clifton Smith taught school for the Duval County School Board for 26 years. Mr. Smith holds a teacher's certificate, No. 145127, authorizing him to teach physical education to sixth through twelfth graders and science to seventh, eighth and ninth graders. In 1980-81, respondent received an unsatisfactory evaluation, which he attributed to the distraction of his mother's terminal illness, culminating ultimately in her death on Thanksgiving Day 1981. Otherwise, his annual evaluations were satisfactory through the 1986-87 school year. He began in August of 1963 as a physical education teacher at Lake Shore Junior High School. He ended that school year and spent all the next at "Paxon Junior High School teaching physical education, coaching track, baseball and basketball." (T.557) Mr. Smith returned to Lake Shore Junior High School in the fall of 1965. Until 1967, all his classes were physical education classes. In 1967, when he began teaching three science classes, he continued to teach two physical education classes, and to coach after school. After 1974, although he continued to work as a coach, he did not teach physical education classes, with the exception of a single physical education course for hearing impaired students. Instead, he taught physical science and earth science (or earth and space science) to junior high or middle school students, mainly with ninth-graders. Leaves Lake Shore With the intention of pursuing computer science training, respondent requested a leave of absence for the school year 1986-87. Request granted, he began at Jacksonville University in the fall of 1986. But when he began to run out of money toward the end of the first semester, he decided to return to work. Because his position at Lake Shore was filled, he was sent to Fort Caroline Junior High School, where he substituted for eight days before he took over a retiring science teacher's five earth science classes, effective February 2, 1987. Soon after Mr. Smith began teaching the science classes, the principal at Fort Caroline Junior High School, Mr. Pratt-Dannals, conducted a formal observation, the first of at least three he conducted before the academic year ended. He gave respondent special attention because, during the school years 1981-82 and 1982-83, when Mr. Pratt-Dannals was dean of boys at Lake Shore Junior High School, he had concluded that "a general lack of proper classroom decorum" (T.43) in one or more of Mr. Smith's classes accounted for an "inordinate number of referrals" (T.53) to the dean's office. But he evaluated Mr. Smith's teaching in the spring of 1987 as satisfactory over all. He also offered criticisms of various aspects of his performance as a teacher, telling him he needed to improve. He urged Mr. Smith to enroll in certain methodology courses in the summer of 1987, but Mr. Smith declined because he "had the summer planned." T. 617. When Mr. Smith returned in the fall, he found himself without a classroom of his own. As a "travelling teacher," he moved from one classroom to another in the course of the school day. This may have accounted for some of his classes' getting off to less than a smooth start. T. 573. 1987-88 Observations On September 15, 1987, Mr. Pratt-Dannals observed Mr. Smith teaching an earth science class. On a "Summative Observation Instrument" he kept track of specified behaviors classed either as effective, or as ineffective, indicators. The former outnumbered the latter, and Mr. Pratt-Dannals commended respondent for "asking a large number of questions on the film strip" which he saw as evidence of a "desire to involve students in the discussion." Petitioner's Exhibit No. 5. But, from where he sat, Mr. Pratt-Dannals saw "students openly cheating on the quiz," (T.88) (although he took no action against the supposed offenders.) Mr. Smith did not see students cheating. T.594-5. "Mr. Smith warned a student to stop talking. The student continued to talk, and there was no repercussion." (T.88) On October 21, 1987, Mr. Pratt-Dannals observed another of Mr. Smith's earth science classes devoted, except for 18 minutes, to a test. He saw "13 students . . . openly sharing answers on the test," (T.88) again without taking any action. Again Mr. Smith did not see students cheating. T.594-5. Using the same "Summative Observation Instrument," Mr. Pratt-Dannals identified about as many "ineffective indicators" as "effective indicators." Among the ineffective teaching behaviors Mr. Pratt-Dannals made note of on October 21, 1987, was Mr. Smith's defining "seismograph" for the class without giving an example. (T.90) When one student said to another, "You do and I'll beat your butt," (T.88) and the other responded, "Faggot," neither the principal nor the teacher intervened, although respondent later reprimanded both students outside the class. T. 582. Mr. Smith recognized the voice of only one of the protagonists, and decided against "ask[ing] a class of 35 which one of you said, you're a faggot?" T.585. From the owner of the voice he recognized, he learned the identity of the other miscreant. On November 5, 1987, Mr. Pratt-Dannals observed Mr. Smith administering yet another test to yet another earth science class. Using the same form as before, he recorded more ineffective indicators than effective indicators. Petitioner's Exhibit No. 7. Mr. Pratt-Dannals testified: There's some additions and corrections to the test at the beginning of the period that created some confusion. These were said orally, so the student had to understand what he was saying orally and write it down on his test in order to do well on the test. I suggested Mr. Smith write these on the board if there were corrections necessary. The cheating continued, particularly where students sat next to each other. This was when Mr. Smith was helping another student. There is a term called with-itness, and that is where a teacher is able to do two things at one time. One of the things that would be required in this situation would be to assist a student who may have a question about the test while continuing to look over the rest of the class to determine if any cheating was going on. He told one student that he would deduct 10 points the next time he was talking. This was on the test. The student talked, and he did not deduct the points. In written remarks made at the time, Mr. Pratt-Dannals noted, "While there was some cheating going on, it was less than before," and suggested, "It looks like it is time to rewrite the 'House Rules' on your cart. The pencil scribble detracts from the impact." Petitioner's Exhibit No. 7. When Mr. Pratt-Dannals next observed respondent's teaching, on December 1, 1987, he perceived no "classroom management problems." (T.100) But he felt "[t]here were problems with presentation of content," id., specifically the effort to discuss dinosaurs, AIDS, the space program and the greenhouse effect in the same class period. He nevertheless commended respondent on a "[g]enerally good question/answer time with extension or correction as needed," Petitioner's Exhibit No. 8, and recorded many more "effective indicators" than "ineffective indicators." Id. Biweekly the science department received 50 student issues and a teacher's edition of Science World, a magazine to which the school subscribed. "There were eight science teachers and one set of magazines." T.591. The chairman of the science department asked science teachers to include all topics pertinent to their courses covered in the magazine "in our lesson plan biweekly." T.586. The then current issue contained articles on dinosaurs, AIDS, the space program, and the greenhouse effect (as well as numerous other topics) and respondent had passed copies out to the students. On February 18, 1988, Mr. Pratt-Dannals again observed respondent teaching and again recorded many more "effective indicators" than "ineffective indicators." But "problems with classroom management persisted, specifically open talking, interrupting and socializing." (T. 117) Nevertheless, according to Mr. Pratt-Dannals, "almost half of [Mr. Smith's] interventions were effective." Petitioner's Exhibit No. 9. Mr. Pratt-Dannals commended Mr. Smith for "[g]ood use of materials, orienting statements, and beginning review . . [g]ood circulation during seatwork . . . [and a]dequate coverage of 4 of 6 of the concepts," Petitioner's Exhibit No. 9, he explicated on February 18, 1988. The two concepts Mr. Pratt-Dannals felt received inadequate coverage "were that light passing through a prism gives a spectrum . . . [and] that the earth is spherical, therefore, that the light hits the earth directly at the equator, but it hits it at an angle at the poles. [Mr. Smith] stated those but did not give any kind of application." T.118. Finally, Mr. Pratt-Dannals again observed respondent's teaching on March 2, 1988. He saw Mr. Smith stop misconduct effectively on three occasions, but, on nine occasions, misconduct extended beyond a reasonable period of time. In other words, he might say, Okay, that's enough, stop talking, and the talking continued for a period of time following that. It may be that the talking continued throughout the whole period [, while the principal sat, mutely observing.] In many cases it continued for a longer period of time than was reasonable if the students were responding to his correction. T. 124. Mr. Smith also failed to give examples of several (but not all) of the terms he defined. According to Mr. Pratt-Dannals, the "problem . . . was that a definition was provided with no example . . . similar to," (T.124) the situation with "seismograph." In conjunction with his observations that school year, Mr. Pratt- Dannals read Mr. Smith's lesson plans for each of the half dozen classes he sat in on. These, he found, "minimally covered what is required." T.130. Aside from these six, he read no other lesson plans Mr. Smith prepared that year. He evaluated Mr. Smith's performance as a teacher as unsatisfactory principally because of classroom management problems. T.131. At Mr. Pratt-Dannals' behest, Gloriden J. Norris came to the school to evaluate respondent's teaching and test administration on December 18, 1987, and again on January 20, 1988. After her first visit, she reported, "[n]o major problem identified from these observations." Petitioner's Exhibit No. 26. On her second visit she recorded 30 effective teaching behaviors and only two ineffective teaching behaviors. Petitioner's Exhibit No. 28. Both Mrs. Norris and Mr. Pratt-Dannals gave Mr. Smith advance notice before observing his teaching. On the other hand, Daniel L. Weems, one of the science teachers whose classrooms respondent made intermittent use of, had occasion to enter his room without notice, during his own free period, while Mr. Smith was teaching there, "in the range of once a week," (T.188) for from two to 15 minutes at a time. Not infrequently he found that Mr. Smith did not have all the students' full attention. He observed "[o]n a number of occasions things such as heads down on the desk, writing notes or letters to one another, just talking with one another, being teenagers." T.177. MLST Petitioner requires students in its earth science courses to pass a Minimum Level Skills Test (MLST) demonstrating mastery of a specified fraction of about 19 percent of the course objectives, in order to pass the course. In March of 1988, Mr. Pratt-Dannals told Mr. Smith he was concerned that his students would not be properly prepared for the standardized test; and encouraged him to make special efforts to prepare them. Mr. Smith did make special efforts. The percentage of his students who passed the science MLST the first time they took it was higher than comparable percentages for two other science teachers' students, but lower than the comparable percentage for one of the other science teachers' students. Respondent's Exhibit No. 5. Mr. Smith's students' scores on the earth science MLST were not significantly better or worse than their scores on minimum level skills tests in other subject areas. 1988-89 At respondent's request, he was transferred from Fort Caroline Junior High School after Mr. Pratt-Dannals gave him an unsatisfactory evaluation. That summer he signed up for two of the three education courses Mr. Pratt-Dannals recommended that he take during the summer, but they were cancelled for lack of adequate enrollment. The third recommended course was already completed by the time he looked into it. Mr. Smith's request to teach physical education during the 1988-89 school year was not honored. Instead, he was assigned to teach two science courses, four classes of life science, which he had never taught before, and one class of physical science at the Eugene J. Butler Seventh Grade Center (Butler). His physical science students had all failed earlier attempts to pass the seventh grade. For the first two weeks of school or longer, Mr. Smith called students' names, and they raised their hands when he took roll, but after that he would simply "darken in the circles" (T.603) on a "bubble sheet" that listed the class roll. Once he had learned their names, this procedure saved class time, he felt. In each class, he asked a student to remind him to fill in the sheet before the hour was up. Before conducting his initial formal observation, Butler's principal, Kenneth Leon Manuel looked for respondent's lesson plans, but did not find them on file. When he did see the lesson plans, he concluded they "did not comply with the format of objectives, instructional strategies, materials and evaluation." Petitioner's Exhibit No. 14. In the classroom, he noticed several students "discours[ing] while [Mr. Smith] was talking," (T.259) on September 13, 1988, and again on October 18, 1988. Also on September 13, 1988, "several students walked in and out of the classroom. Like one kid would walk in with the hall pass. And by the time he put the hall pass down, another kid would get up, get the hall pass and walk out." T.260. Carole Lippert Benson, Butler's vice-principal, conducted a "formal observation" in one of Mr. Smith's classes on September 28, 1988. Even though class began four minutes late, five students were tardy. "The teacher usually makes some sort of notation that the child was tardy, or gives them some sort of reprimand," (T.404), but respondent did neither. When he began his presentation, one student was at the pencil sharpener and three others were out of their seats. He stood at an overhead projector with his back to half the class. Some students talked. One put his head down and went to sleep. A girl put on make up. Mr. Smith did not have the attention of several students. Kathleen Bowles, the science and health department chairperson at Butler had her planning period second hour during the 1988-89 school year. She walked through respondent's second period class on her way to the science department's storage rooms, "probably 20 times or more, throughout the entire school year." T.246. She saw children talking among themselves, writing notes and out of their seats. She even saw some listening to radios or cassette players with headphones. School policy forbids Walkman radios on campus. Mr. Smith violated departmental policy by letting the children "dissect pumpkins" without safety goggles, and nearly violated department policy "when he was going to dissect earthworms, and the safety contracts had not been signed." Although Ms. Bowles reported a "very high" noise level, a classroom teacher nearer by was not disturbed. On November 9, 1988, Kathleen Marie Poe, who then worked for petitioner as "a science consultant with professional development" (T.454) attended one of respondent's classes in order to conduct a scheduled formal observation. When the tardy bell rang two boys were arguing over which should retrieve a desk that had been moved for an earlier class. A student arrived late. One of the students walking around the room refused to obey several exhortations to sit down, so Mr. Smith ordered him to leave the class room "and that child wouldn't step outside, so they finally negotiated that he asked him to sit in the back of the room." T.455. But, when a girl finished sharpening her pencil, the recently seated student rose to sharpen his pencil. After these preliminaries, and a quiz, Mr. Smith made use of an overhead projector and began a far ranging lecture on sea life, mentioning (without defining that day) mollusks, bivalves, scallops, univalves, stingrays, echinoderms and the Great Barrier Reef. During the lecture, one girl put on make up, another did her English homework. On November 17, 1988, a student arriving for Mr. Smith's sixth period class told him he did not feel well, and asked to go home. Mr. Smith answered, "[S]ee if you can't tough it out one more period. Your mom's not going to want to come over here. Go . . . put your head down." T.624. Instead of putting his head down, the child lay down on a table. Mr. Manuel and Levi Garrett, another administrator in petitioner's employ, were present for the first five minutes of this class. Mr. Smith introduced Mr. Garrett to the students before proceeding with a scheduled VCR presentation. Neither Mr. Manuel's testimony that, "There were several kids that walked in and just lay down on the table," (T.266) nor his assertion that respondent's lesson plans were not on respondent's desk has been credited. On February 1, 1989, Ms. Norris observed respondent at Mr. Manuel's request. "Other than the inadequate preparation and delivery of content, [she] also concluded that there were some problems in inconsistency in . . . effective strategies . . . used to manage student conduct." T.384. On the test he gave that class, "there's a mixture of multiple choice and matching without directions." T.386. On February 15, 1989, Mr. Manuel conducted another formal observation, this time of respondent's third and fourth period classes. With regard to the third period class, Mr. Manuel reported: [B]asically the behaviors that were in that particular class during that time, there was a lot of deviant behavior. Mr. Smith, at one time, responded to the deviant behavior, "Neil, you better get busy. You guys get busy." There was continuous conversation with a student that had a missing lunch ticket. During the period of time in this particular classroom, Mr. Smith did circulate around the classroom. There were numerous misconducts [sic] of students going on. He had the opportunity to cease and desist some of that; however, in some cases he did not. Also, in that particular one, in that specific case, one student had indicated to Mr. Smith that he had completed the assigned task [an essay] . . . [A]nd Mr. Smith explained to him to continue to work on the essay. The child just went ahead on. T.275-7. About a third of the class finished the essay early, and had no additional assignment other than (possibly) homework. The fourth period class was the physical science class, full of students who were repeating. Several students "were continuously off task." T.279. Mr. Smith told a student she should have raised her hand, and she said he had not required another student to do that. After two warnings, Mr. Smith "wrote [a student] up on a referral, told him to leave the classroom." T.280. Another student was playing with the thermostat. Still another student "was constantly talking and complaining." T.281. On February 28, 1989, Ms. Poe again observed respondent, whose strength she had earlier described as "science content/knowledge." Petitioner's Exhibit No. 33. In connection with her February visit, she prepared written comments. "Some conduct problems - 4 students out of their seats - talking back - frequent interruptions. One was sent out on a referral (girl) transparencies were clearer as were his directions. He never raised his voice and was calm throughout the hour." Petitioner's Exhibit No. 33. Ms. Poe felt respondent "need[ed] to provide positive feedback to students' answers and . . . for correct behavior and to be consistent with his own set of classroom rules." Id. She also noticed that "he kept calling on the same students, the ones who were paying attention, to answer the question." T. 459. Two boys played "paper football across the desk," (T.456) a boy threw "basketball paper wads . . . three of them in a row", id, a distance of about six feet, and "[t]here were a couple of paper airplanes being flown around the room." T.456. Mr. Manuel conducted a final observation on March 13, 1989. After this observation he told respondent that he wished he had taught so well for the whole year or words to that effect. He told him that this was the type of teaching he had been looking for and was generally complimentary. Nevertheless the next day he made a final evaluation that Mr. Smith's work for the year had been unsatisfactory. After January 30, 1989, respondent did not file lesson plans until June 14, 1989, when he filed lesson plans for some four months' classes late. MLST At Butler Of the 21 students in Mr. Smith's year-long physical science class, only ten passed the physical science MLST the first time it was administered. T.302. Petitioner's Exhibit No. 23. Even fewer students passed the course itself. "That's the class that were repeaters . . . ." T.603. Most of the students who flunked the class "failed because we had an attendance policy. If you missed more than seven days [in "[e]ach grading period" (T.607)] . . . you automatically received an F or an E in the class." Id. Students in Mr. Smith's four first semester life science classes passed the life science MLST at rates of 34.8, 52.0, 52.2, and 63.6 percent, as compared to a 77.7 percent pass rate for all teachers' first semester life science students. Petitioner's Exhibit No. 24. But students in Mr. Smith's second semester life science classes passed the life science MLST at rates of 92.0, 93.8, 94.1 and 94.7 percent as compared to an average 93.9 percent for all teachers' life science students that semester. Petitioner's Exhibit No. 25. Popular With Colleagues A number of respondent's colleagues testified for him at hearing. Paul Z. Martin, a teacher at Lake Shore Junior High School from 1954 to 1976, said, in answer to counsel's questions: A He got along fine. I got jealous of him a lot of times, because he could handle the students so well, and the students liked him, and he had no problem there at all. And another thing -- let me say right there -- you know, things will happen, which is natural. They'll come up in class, or maybe under me or maybe under another coach. And, well, two or three times I recall where I would ask Kerby to go see if he could resolve that situation, and he did. He did a good job. He's a good disciplinarian. Q Good disciplinarian? A Good disciplinarian. And his work in his classroom was very efficient. (TR 344) Barbara Miller who taught at Lake Shore Junior High School for twenty- six (26) years and who, like Mr. Martin, had no personal knowledge of respondent's performance at Fort Caroline Junior High School testified: I think he is a very competent teacher. I say this due to the fact that when I walked into his classroom the many, many times that I did, that his class was in order, that he had control of his classroom, that his test scores were good, that his grades were better than mine, that he did take an interest in the children. And I have one real criteria for being a good teacher, and that is it involves the heart and the love of your job and the love of the children, and I absolutely will say under oath that Kerby has these things, that he enjoyed his job, he loved the kids, and he gave to them beyond the capacity of just your 7:30 - to - 2:40 requirement. And that says a lot for me. (TR 359, 360) A former principal, John Rowell, who served as principal at Lake Shore Junior High School, until 1969 testified: I would say he tries to reach every student that he can. He's very pleasant, and he -- for me, he maintained good order in the classroom and a well-disciplined gym class, and his teams that he coached were well-disciplined teams. He called on the kids to recite. He would explain, and they would recite. Q Do you think he was a competent teacher? A Yes. He was a competent teacher for me. Between 1963 and 1969, he was a very competent teacher." (TR 484-485) Another colleague who had not taught with Mr. Smith since he left Lake Shore Junior High School was Betty Tut who had herself taught for some twenty- five (25) years. She said: Did you ever observe Kerby Smith in the classroom? A No, not observe him in the classroom, but we taught P.E. kind of together. Sometimes we would be outside, but this was some time ago, not recent. Q But you could see each other? A Yes. Q What was his conduct with the class when you observed him? A Very caring and compassionate about them and wanting them to do well. He was very concerned about each of the kids and wanted them to do exceptionally well in what he was doing. I know that much. Q Did he seem to have control of his class? A Being outside, he had pretty good control outside. But when he was inside, I did not observe him. (TR 494) Another Lake Shore colleague, Floyd Watson, who taught at Lake Shore Junior High School from 1966 to 1988, answered counsel's questions, as follows: Q How did Mr. Smith conduct this classes? A What do you mean? Q You saw him in some of his classes. What were they like; well-run, poorly-run, whatever? A Of course, I'm not a science teacher, so I can't say that sort of thing. Q Did you find any atypical disciplinary problems in his classes, as compared to the others that you were familiar with? A No. Q Did he seem to have a rapport with the students or lack or rapport? A He seemed to have a good rapport. I think, with the latter part of the years, I was just thinking, when I came down here the other day, that he seemed to have a right good rapport, especially with minority students. Not all teachers have that." (TR 502) "Q In your opinion, from '63 to '85, was Mr. Smith a competent teacher? A Yes. Q And the reason for that statement? A Well, I think he's knowledgeable in his subject matter. I think he put the material across to the students. He did have a classroom management so that a student that wanted to learn could learn. He was able to talk with the students and get along with them reasonably well. Of course, like any teacher, you don't satisfy all of them. That never happens. But, overall, I think he got along very well with the students, and they tend to respect him. He made it such that if they wanted to learn they could, and he would try to teach them. (TR 503, 504) Robert A. Birmingham, an occupational specialist at Lake Shore Junior High School, 1985-1990, testified: Q What was the conduct of his classroom when you were there? A They're junior high kids, you know. In an educational setting, there can be noise, and it's educational noise, and there can uncontrolled noise. And I don't recall anything that I was unhappy with. (sic) (TR 510) Phil Valla, a 20-year teacher who taught with respondent early in his career, testified: Q How did he conduct his classes, as far as demeanor and the rest of it? A How did he conduct his classes? Q Yes. From your viewpoint as a teacher, yourself, do you have an opinion about how Kerby conducted his classes? A His classes were fine. Q Do you think he's a competent teacher? A Yes, sir. Q And could you tell the Hearing Officer why you think he's a competent teacher? A When we worked together, we seemed to accomplish everything we set out to do with the kids, and he seemed to get along real well with the kids and fellow coaches. Q How was discipline in his class? A Fine. Q What rapport, if any, did he have with his students? A It was excellent. He had superior rapport with the students. Q Do you think the students respected him? A Yes, sir. Q You say he accomplished everything he wanted to accomplish; was that subject matter? A Yes, sir. Q Do you think that got across? A Yes, sir. We taught -- our goals were to teach skills in physical education, and we accomplished that in those years. (TR 516, 517) And Georgette Macarthur, a teacher with 28 years of experience, offered her opinion, in response to counsel's questions: Q Do you have any opinion about how he conducted his classes? A Yes. He had a real special, I think, rapport with the students, and they liked him, and they performed for him. And I don't think he had a military discipline style, but that mold -- everybody doesn't fit that mold. His style of discipline was a little more relaxed, but the students learned well, I think, and they all did what they were supposed to do. I'm more of a relaxed teacher, myself. And I can see that what is right for one teacher, as far as discipline goes, is not right for another teacher. And students can't learn in chaos. That's not what I'm saying. What I'm saying is that if they're all tense and tight sometimes they don't do their best. I really like the way Kerby teaches, from my memory. It's been several years, but, from what I know, I really like the way he teaches. Q You've known him for over 20 years at Lakeshore (sic)? A Right, right. Q That's a long time to observe somebody. A That's right. That -- well, go on with your questions. Q And he left to go on a sabbatical? A Yes, and then he came back. Q And then -- I don't -- if I asked you this -- did I ask you, "Do you think he's a competent teacher?" A Yes, I do. From my observations and just from what I have known, I do think he's competent. (TR 524, 525) On the other hand, Messrs. Pratt-Dannals and Manuel, along with Ms. Bowles testified that respondent was not a competent teacher. Of the 6200 teachers the school board of Duval County employed in 1988-89, it sought to terminate the employment of only three. Raymond Bailey, petitioner's "director of certificated personnel," (T.200) testified: A competent teacher is one that has knowledge of subject matter, is able to impart and deliver that subject matter to students. That competent teacher also is one that is competent in the area of classroom management, meaning managing the learning activities that take place within those four walls. He's also an individual that is effective in his delivery of curricular material to students, interpreting the curriculum of the district and, again, imparting its students. He is an individual that is charged with the responsibility of teaching the curriculum as outlined by the district and has the knowledge and background to proceed through that and to provide his students with the very best education. While it is clear respondent did not provide his students with "the very best education," the evidence fell well short of a showing that he was among the three worst teachers in the school system. At one point when respondent was teaching at Lake Shore and Mr. Wechsler was serving as principal, all five or six science teachers were evaluated by the School District's "teacher educational consultant for science" (T.369), Gloriden J. Norris. Ms. Norris, who observed all of the teachers in their classrooms, did not conclude that respondent's performance was significantly worse than any of the other science teachers' performances. (T.399-400).
Recommendation It is accordingly, recommended that petitioner renew respondent's employment contract. RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4132 Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 45, 79, 87, and 89 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 7, 12, 13 and 14 pertain to matters outside the two-year period alleged by the Board, or are otherwise immaterial. Petitioner's proposed findings Nos. 15, 16, 17, 18, 23, 24, 25, 32, 33, 34, 36, 46 and 81 pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 19 through 22, see finding of fact Nos. 11 through 22. Petitioner's proposed findings of fact Nos. 35 and 86 were not established by the evidence. With respect to petitioner's proposed finding of fact No. 41, the testimony was that in no other case of this kind was a teacher assigned to teach subjects he had never taught before. With respect to petitioner's proposed findings of fact Nos. 42, 43 and 44, the evidence did not show that he was at any less disadvantage teaching life science, and the "special accommodations" were contrary to his request to teach physical education. With respect to petitioner's proposed findings of fact Nos. 47 through 65, 82, 83 and 84, see findings of fact Nos. 27 through 45. With respect to petitioner's proposed findings of fact Nos. 66 through 75, see findings of fact Nos. 46 and 47. Petitioner's proposed findings of fact Nos. 76, 77, and 78 have been adopted in substance, insofar as material, except that Mr. Manuel's testimony that lesson plans were not on respondent's desk has been rejected. With respect to petitioner's proposed findings of fact Nos. 80 and 85, that is the answer he gave on deposition. With respect to petitioner's proposed findings of fact Nos. 85 and 88, petitioner proved respondent was a weak teacher, but did not prove that he was incompetent, within the meaning of the statute. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 10, 13, 17 and 18 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 6 and 15 pertain to subordinate matters. The final two sentences of respondent's proposed finding of fact No. 7 have been adopted, in substance, insofar as material, but there were not six formal evaluations. With respect to respondent's proposed finding of fact No. 9, nobody testified that a traveling teacher should have any greater problems with discipline after the first few minutes of class. With respect to respondent's proposed finding of fact No. 11, the evidence did not show that he actually attended summer courses. With respect to respondent's proposed finding of fact No. 12, the first sentence has been adopted but it is not clear what comparison the second sentence is intended to make. Respondent's proposed finding of fact No. 14 is rejected. With respect to respondent's proposed finding of fact No. 16, she characterized certain behavior as inconsistent. COPIES FURNISHED: The Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 James L. Harrison, General Counsel Gail Stafford, Assistant Counsel 421 West Church Street, Suite 715 Jacksonville, FL 32202 Al Millar, Esquire 2721 Park Street Jacksonville, FL 32205
The Issue Whether Respondent may be terminated for gross insubordination.
Findings Of Fact At all times material to this case, Holley was a kindergarten teacher assigned to Frontier Elementary School. The evidence established, and Holley does not dispute, that at all times material to this case, Holley and Petitioner were parties to a collective bargaining agreement which provided that Petitioner may terminate an employee for gross insubordination, which is defined as a "willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and give by and with proper authority." At the beginning of the 2002-2003 school year, Holley exhibited behavior which constituted reasonable grounds to question her present ability to perform her job. In such circumstances, the collective bargaining agreement authorizes Petitioner to direct the employee to cooperate in obtaining what is known as a fitness for duty evaluation. The facts supporting the need for such an evaluation were appropriately documented during the first weeks of the school year, and Holley was assigned to her residence with pay on October 24, 2002. Thereafter, on three separate occasions, Holley was directed in writing by Respondent's duly-designated representative, chief personnel officer, Marcia Andrews (Andrews) to report for and to complete the evaluation. The first of Andrews' letters was dated November 18, 2002. It advised Holley that failure to comply with this directive "will be viewed as insubordination." Holley went to the fitness evaluation which had been scheduled for her at a reasonable time upon reasonable notice. However, Holley refused to fully cooperate with the examiner, rendering it impossible for the examination to be completed. Andrews sent Holley a second letter, dated December 13, 2002. In this letter, Andrews reprimanded Holley for insubordination, and again directed her to cooperate in a fitness for duty evaluation. Again Holley did not comply. By letter dated March 20, 2003, Andrews advised Holley that she would be given "one last opportunity" to fully cooperate and complete a fitness for duty evaluation. Again, Holley was advised that her failure to cooperate would be deemed insubordination and "will result in a recommendation to the School Board for your termination." The aforementioned correspondence was punctuated by at least a half dozen conversations between Holley and Andrews in which Andrews implored Holley to cooperate with the evaluation. Andrews maintained Holley on the payroll long past the time it would have been justified to terminate Holley for insubordination. Throughout the period of time she was assigned to home and again at the final hearing, Holley attempted to defend her failure to complete the fitness evaluation by leveling accusations of discriminatory and in some cases criminal behavior against various individuals employed by or otherwise affiliated with Petitioner. At least one of Holley's accusations of wrongdoing was made for the first time at her deposition, which was taken shortly before the final hearing in this matter. At all times material to this case, Respondent's staff acted in good faith in giving Holley unlimited opportunity to corroborate her charges. She received a similar opportunity in these proceedings. Holley made no effort to corroborate her charges. Instead, the record provides clear and convincing evidence that Holley was, in fact, grossly insubordinate. For months she disregarded, with no legitimate cause, a direct and entirely reasonable order to complete a fitness for duty examination. There is no evidence to suggest that Holley was treated any differently than any other teacher or employee would be treated in similar circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 December, 2003. COPIES FURNISHED: Jean Marie Nelson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Alana Holley 2381 Southeast Federal Highway, Suite 6 Stuart, Florida 34994 Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 315 West Gaines Street Tallahassee, Florida 32399-0400
