Findings Of Fact Respondent, Gloria E. Walker, holds Teaching Certificate No. 294140, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of music education. Respondent has been employed as a Music Teacher by Petitioner, School Board of Dade County since 1970. From 1973 until 1986, Respondent taught music at Dunbar Elementary School in the Dade County School District. During the 1970-71 through 1977-78 school years, Respondent received either unacceptable or marginally acceptable scores for five of the seven years on her annual evaluations. (Petitioner's Exhibits 29). During the 1973-79 school year, the School Board altered its evaluations System for instructional Personnel. During the 78-79 through 83-84 school years, Respondent's annual evaluations were rated as acceptable. However, during the school years 1981- 82 through 83-84, school and district Personnel made comments concerning Respondent's need to improve her performance and development in certain areas. (TR 298). Commencing with the 1973 school year, Respondent received assistance from Charles Buckwalter, music specialist for elementary schools for the Dade County School District. Respondent was initially contacted by Mr. Buckwalter that year because of concerns the school's Principal expressed regarding Respondent's lack of classroom management. During that year, Mr. Buckwalter visited and provided assistance to Respondent approximately seven (7) times. Mr. Buckwalter's assistance to Respondent continued during the following three (3) years. During the 1981-82 school year, Mr. Buckwalter assisted Respondent on more than four occasions during which time he attempted to demonstrate lessons concerning management techniques and the use of new materials; objectives of instruction and on January 26, 1982, Buckwalter, along with Dr. Howard Doolin supervisor of music for Dade County, visited Respondent so that Dr. Doolin could observe Buckwalter's assistance to Respondent. On April 26, 1982, Respondent and Mr. Buckwalter met for approximately three and one half hours. Buckwalter visited several of Respondent classes and demonstrated the use of certain new materials. As a part of that visit, he observed Respondent's teaching and noted that Respondent abandoned the new materials and returned to teaching the old curriculum. On November 11, 1982, Mr. Buckwalter spent approximately three hours with Respondent in which time he visited two classes and had a conference with Respondent concerning the new curriculum for level 1 students. On November 18, 1982, Mr. Buckwalter made a follow-up visit concerning Respondent's lesson plans and objectives. Additionally, he demonstrated a lesson to one of Respondent's classes. On or about November 29, 1982, Respondent was formally observed by assistant principal, H. Elizabeth Tynes. Ms. Tynes has a wealth of experience lasting more than thirty years in both Hillsborough and Dade Counties. Respondent was rated unacceptable in the areas of classroom management, teacher/student relationship and in a subcategory of assessment techniques. (Petitioner's Exhibit 7). Respondent was rated unacceptable in the area of classroom management based on a large number of disruptive students in her music class and Respondent's inability to control the students' behavior through either verbal or nonverbal strategies. Respondent was rated unsatisfactory in the area of teacher/student relationship based on her failure to demonstrate consistency as concerns student behavior, failing to praise good behavior and reprimand students for disruptive conduct. On another occasion, assistant principal Tynes listened to a musical program Respondent's students were giving over the intercom system. Ms. Tynes rated the program a "total disaster". Ms. Tynes and the principal were "ashamed" of what they heard from Respondent's music class. Respondent demonstrated skills preparation for the program as observed by Ms. Tynes. On May 19, 1983, Respondent was formally observed in the classroom by Katherine Dinkin, who was then principal of Dunbar Elementary School. Following the observation, Respondent was evaluated unacceptable in areas of classroom management, teacher/student relationship, and techniques of instruction. (Petitioner's Exhibit 17). Principal Dinkins observed that Respondent's students were not on task, the classroom was chaotic and the students only responded to directives of the Principal, as a Person of authority. Respondent was rated unacceptable in techniques of instructions based on Ms. Dinkin's observation that students were being taught at levels beyond their ability; class openings and closings were not done appropriately and Respondent failed to develop a plan for the individual needs, interests and abilities of students. Respondent was rated unacceptable in the category of teacher/student relationships based on her failure to demonstrate warmth toward the students and her inability to command respect. During this period in 1983, principal Dinkins prescribed help for Respondent as concerns observing and working with other teachers for guidance. On April 12, 1984, Respondent was again formally observed by principal Dinkins and rated unacceptable in classroom management and techniques of instructions. (Petitioner's Exhibit 21). Respondent was rated unacceptable in the area of classroom management based on her demonstrated inability to keep students on task or to develop strategies to control their behavior. Respondent was rated unacceptable in the area of techniques of instructions based on an inadequately prepared lesson plan and an inability to deliver the instructional components to students. Principal Dinkins observed that the material Respondent attempted to teach was too complicated for the students and she failed to Properly sequence her instructions. Principal Dinkins, who was tendered and received as an expert in the areas of teacher observation and assessment, was unable to observe any continuum of improvement by Respondent over the extended period of Principal Dinkins' supervision. Principal Dinkins opined that Respondent deprived her students of the minimal educational experience in music. During the 1983-84 school year, Respondent again received help from Mr. Buckwalter. As part of this help, Mr. Buckwalter organized small study groups in order to improve instructions throughout the music education department. These groups met on September 28, October 19, November 9 and 30, 1983. Respondent was asked to become part of the study group. The study group was Particularly concerned with focusing on the scope and sequence of curriculum, students' achievement and implementation of certain aspects of the curriculum, particularly as concern level 1 and 2 students. On or about August 30, 1983, Mr. Buckwalter spent the day with Respondent and a new music teacher, Ronald Gold. On or about September 27, 1983, Mr. Buckwalter visited Respondent for approximately 3 and 1/2 hours in which time he visited three of her classes and again attempted to discuss some work with Respondent concerning student management techniques including the use of a seating chart. On or about October 18, 1983, Mr. Buckwalter visited Respondent approximately four hours during which time he visited several classes and observed her using ideas gleaned from the study group. On or about November 7, 1983, Mr. Buckwalter again visited with Respondent for approximately four hours. After the conference, he taught classes with her and implemented the use of instruments to enrich the class lesson as well as the implementation and use of progress charts. On or about December 9, 1983, Mr. Buckwalter visited with Respondent for approximately 3 hours. At this time, Mr. Buckwalter expressed concern in that Respondent was not clearly understanding the intent of the school board curriculum. Respondent was rated unacceptable in the areas of classroom management, techniques of instructions, teacher/students relationships, assessment techniques and professional responsibility during her annual evaluation for the 1984-85 school year. On or about October 29, 1984, Respondent was formally observed in the classroom by assistant principal, Edwardo Martinez. Although Respondent was rated acceptable, this class was not a typical situation but rather a rehearsal of a specific program. On other occasions, assistant principal Martinez had opportunities to walk by Respondent's classroom. He often noted loud noises emanating from her classroom. During these instances, he would enter the room and immediately settle the students down. On March 26, 1985, Respondent was formally observed in the classroom by Maybelline Truesdell, Principal of Dunbar Elementary. Based on this formal observation, Respondent was rated unacceptable in the areas of classroom management, instructional techniques and teacher/student relationships. (Petitioner's Exhibit 2). As a result of the unacceptable evaluation, Respondent was given a prescription form suggesting methods in which she could improve areas in which she was rated unacceptable. (Petitioner's Exhibit 2). Respondent was rated unacceptable in the category of classroom management based on her inability to retain the students attention; her failure to open and close classes appropriately and her general observation of students being off task. Respondent was rated unacceptable in the area of instructional techniques based on the observation that she did not interact verbally with students; students were inappropriately excluded from participating in discussions of the lesson and Respondent did not use instructional methods/materials which were appropriate for the students' learning levels. (TR pages 30-35). Respondent was rated unacceptable in the area of student/teacher relationships based on her improper focusing on a small number of students; inappropriately criticizing a student assistant in the presence of other students, and a failure to use sufficient positive interaction to maintain class control. On may 3, 1985, Respondent was again formally observed by Maybelline Truesdell and rated unacceptable in the areas of classroom management; instructional techniques; student/teacher relationships and assessment techniques. (Petitioner's Exhibit 3). Respondent was rated unacceptable in the area of classroom management as she failed to properly discipline students; failed to maintain classroom control and students were off task. In the area of techniques of instruction, Respondent received an unacceptable rating in one category which remained unremediated pursuant to a prior prescription issued by Ms. Truesdell. Respondent was again rated unacceptable in the area of teacher/student relationship based on her inability to display any of the indicators considered necessary to become acceptable and her continued rejection of students who volunteered or attempted to participate; her failure to involve the entire class by focusing her attention on a small number of students to the exclusion of others and her failure to appropriately address students by their name rather than "you." (TR 39-41). Respondent was rated unacceptable in the area of assessment techniques based on her failure to follow county and state guidelines for assessing students. Specifically, Respondent failed to provide substantial evidence of (documentation) to justify grades assigned to students and her grade books did not indicate if or when she was giving formal quizzes or tests. In addition, there was no letter grade or numerical indication in Respondent's grade books to gauge academic progress. Additionally, there was insufficient documentation in the student folders to back-up student progress or to otherwise substantiate the grades assigned to students. During the 1984-85 school year, Mr. Buckwalter returned to Dunbar Elementary to again assist Respondent. On September 6, 1984, Mr. Buckwalter visited Respondent for approximately three hours during which time he visited a class; co-taught a class and attempted to assist Respondent concerning improvement in areas of student behavior and management. On November 2, 1984, Mr. Buckwalter visited one of Respondent's classes. He thereafter visited Respondent on March 22, 1985 at which time he spent approximately two hours in her classroom. He taught five classes to demonstrate strategies of progressing students from one level to another. He thereafter conferred with Respondent concerning the need to reflect a positive attitude toward students.. On March 29, 1985, Mr. Buckwalter again visited Respondent. Respondent was then using materials suggested by Mr. Buckwalter although she utilized them in a "rote" manner and included too many concepts within a single lesson. On April 18, 1985, Mr. Buckwalter returned to observe Respondent. The students were going over materials that had been taught in past years and the new curriculum was not being taught. On May 23, 1985, Mr. Buckwalter spent four hours with Respondent. They concentrated on the development of lesson plans; planned activities concerning class objectives and stressed the need to remain-on one concept until it was understood by a majority of the class. Respondent's evaluation for the 1985-86 school year was unacceptable in the areas of subject matter knowledge instructional techniques; teacher/student relationships; assessment techniques and Professional responsibility. On October 10, 1985, Respondent was formally observed by assistant principal William J. Kinney. Respondent was rated acceptable in the area of assessment techniques. Mr. Kinney offered certain suggestions to Respondent including the fact that the lesson taught would be more beneficial by more student participation. Respondent was advised of a need to immediately cure problems respecting students who were observed hitting bells with pencils and pens and the need to immediately address problems when students were observed off task. During the school year, Mr. Kinney made numerous informal visits to Respondent's classroom at which times he observed loud noises coming from Respondent's classes, chanting, fighting, furniture pushed into the walls, student misbehavior and other indications that Respondent's classroom management was ineffective. On December 3, 1985, Respondent was officially observed by principal Truesdell and was rated unacceptable in the areas of instructional and assessment techniques. (Petitioner's Exhibit 6). Respondent was made aware of her continuing problems and was provided with an acknowledged receipt of a summary of the conference-for-the-record dated Thursday, December 12, 1985. (Petitioner's Exhibit 7). Additionally, Respondent was given specific instructions in the form of a prescription concerning her grade book and instructed to strictly follow the conduct prescribed. (Petitioner's Exhibit 7). In the opinion of principal Truesdell (received as an expert in the area of teacher assessment teacher evaluation, teacher observation in the role of school principal) Respondent was unacceptable for further employment by the school district, was continuing to demonstrate ineffective classroom management, instructional techniques, assessment techniques and had done so for such an extended period of time that improvement appeared unlikely. Additionally, Ms. Truesdell considered that Respondent was unable to make sufficient competent analysis of students' individual needs and potential in the classroom; failed to ensure and promote the accomplishment of tasks to the proper selection and use of appropriate techniques; failed to establish routine and procedures for the use of materials and physical movements of students in her class; failed to employ the appropriate techniques to correct inappropriate student behavior; failed to demonstrate competence in evaluating learning and goal achievement by her students and failed to demonstrate appropriate interpersonal skills required of a teacher to maintain discipline and effectively teach in a classroom environment. On February 7, 1986, Respondent was officially observed in her class by Marilyn Von Seggern, music supervisor for Dade County and by Ms. McCalla, assistant principal at Dunbar, under the provision of the TADS program. (Petitioner's Exhibit 23). Following that observation, Respondent was rated unacceptable in the areas of subject matter knowledge, instructional techniques, assessment techniques and teacher/student relationships. In the Professional opinion of Marilyn Von Seggern, received herein as an expert in the areas of music education, teacher observation and assessment, Respondent was depriving students of the minimum educational experience and had serious problems concerning her ability to communicate and relate to students respecting the music curriculum. On January 16, 1986, Respondent was formally observed in her classroom by Dunbar's assistant principal Carolyn Louise McCalla, and was rated unacceptable in the areas of classroom management, techniques of instruction and assessment techniques. (Petitioner's Exhibit 24). Based on Mr. Buckwalter's repeated observation of Respondent's classroom and teaching techniques, Mr. Buckwalter opined that Respondent's students were not receiving the minimum education required by the Dade County School System as concerns the curriculum for music. As example, on one occasion Mr. Buckwalter observed Respondent presenting an organized lesson to students which was quite successful and upon his return approximately five minutes later, Mr. Buckwalter observed that Respondent was not teaching the new successful lesson but had instead reverted back to an old lesson and her students were observed inattentive and generally off task. (TR pages 250-254). On March 26, 1986, Respondent was having difficulty maintaining her students' attention to the point that the students were out of control. While Respondent was attempting to stop a certain student from chanting and beating on the desk, Respondent tried to restrain the student and in so doing, Respondent broke her watch band and scratched the student on her face. The student required hospitalization and although the injury was deemed an accident, Respondent's lack of classroom control and management played a major part in causing the incident. Pursuant to a request by the School Board, Respondent, on April 30, 1986, was evaluated by psychiatrist, Gail D. Wainger. Dr. Wainger took a medical history from Respondent which included Respondent's revelation of previous psychiatrist treatment. Dr. Wainger observed that Respondent had a very flattened, blunted affect with little emotional expression. She related that this was a sign of a patient who was recovering from a major psychiatric episode. Additionally, Respondent showed difficulty recalling recent events. Dr. Wainger diagnosed Respondent as having chronic residual schizophrenia with a possible personality disorder including impulsive and avoidance features. Dr. Wainger opined that a person with such diagnosis would have difficulty being an authority figure and that this would be especially Problematic for students who needed positive reinforcement. On April 28, 1986, Respondent attended a conference-for-the-record with the school board's administrative staff. A past history of performance and evaluations was reviewed. Additionally, the investigative report concerning the injury of the student which occurred March 26, 1986 was also reviewed. Respondent was informed that the matter would be referred to the School Board for possible disciplinary action. (Petitioner's Exhibit 31). On May 21, 1986, the School Board took action to suspend Respondent's employment and initiated the instant dismissal proceeding against her. (Petitioner's Exhibit 32). For the 1985-86 school year, Respondent's annual evaluation indicated that she was rated unacceptable in five of seven categories and was not recommended for re-employment. (Petitioner's Exhibit 13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, enter a Final Order sustaining the suspension, without pay, of Respondent, Gloria E. Walker and dismissing Respondent, Gloria E. Walker as a teacher in the Dade County Public Schools. That the Petitioner, Ralph D. Turlington, as Commissioner of Education, entered a Final Order finding Respondent guilty of incompetency and incapacity. It is further Recommended that the Education Practices Commission enter a Final Order suspending Respondent's Florida Teacher's Certificate No. 294140, issued by the Department of Education, State of Florida, for a period of three years based on incompetence and incapacity. DONE and ENTERED this 2nd day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1987.
The Issue The issues are whether Respondent is guilty of the alleged misconduct and, if so, whether such misconduct constitutes just cause for Respondent's termination, pursuant to section 1012.33(6)(a), Florida Statutes.
Findings Of Fact Introduction Respondent has been teaching for 30 years. At all material times, she has held a professional service contract, pursuant to section 1012.33, Florida Statutes. For the past 13 years, Respondent has taught at Northport K-8 School. She taught at this school until she was suspended without pay, pending termination, for the incidents of March 20, 2013, which are the subject of this case. During second period on March 20, 2013, Respondent was teaching a seventh-grade class. One of the students, R. W., misbehaved. Respondent cautioned him to sit down and be quiet. Instead of doing so, R. W. asked her, "How do you know that I'm the only one talking?" Respondent again instructed him to be quiet, to which the student replied, "I wish I could cuss a teacher out right now." Respondent did not reply. Several nearby students heard this exchange and nothing more of significance. After the bell rang, R. W. proceeded to his next class, which was taught by Sandra Tyndale-Harvey, whose classroom is in the same hallway as Respondent's classroom. During the three-or four-minute interval between second and third periods, Respondent visited another teacher, Kalyn Nova, whose classroom is between the classrooms of Respondent and Ms. Tyndale-Harvey. "Inappropriate Language" and Three Alleged Failures to Act Respondent told Ms. Nova about the incident involving R. W. during the previous period. Although she was speaking in a whisper, she was upset and was overheard by D. S., an eighth-grade student in Ms. Nova's third-period class. According to D. S., he overheard Respondent tell Ms. Nova that R. W. had said to her: "If you don't shut the 'F' up, I'm going to beat the shit out of you," or words very close to that effect, including the abbreviated swear word, the unabbreviated swear word, and the threat of violence. Ms. Nova and Respondent recalled the statement differently from D. S., but similar to each other. Ms. Nova testified that Respondent stated that R. W. had said, "If you don't stop talking to me, I'm going to beat the shit out of you." Respondent testified that R. W. had said, "If you say my name one more time, I'm going to slap the shit out of you," implying that this was what Respondent told Ms. Nova that R. W. had said. The differences in language among all three statements are immaterial. All three versions capture a threat to physically beat Respondent and a hair-trigger precondition to the beating: failing to stop speaking or saying R. W.'s name one more time. All three versions also use the word, "shit." Respondent's use of this vulgarity was not inappropriate for three reasons. First, Respondent was merely recounting what she understood that R. W. had said to her. Based on this record, Respondent was wrong; R. W. never said anything like this to her. But Respondent is not charged with fabricating this statement. Although R. W. did not say it, Petitioner has failed to prove that Respondent intentionally misquoted the statement, such that her use of "shit" in Ms. Nova's classroom might have been inappropriate. It is at least as likely that Respondent misunderstood R. W. to have threatened Respondent using the word, "shit." Second, Respondent was visibly upset when she recounted what she had thought R. W. had said to her. And third, despite the fact that she was upset, Respondent took a reasonable precaution--i.e., whispering--to avoid being overheard by other students, even though she was unsuccessful in this effort. Perhaps because she was upset, Respondent's speech was loud enough for a nearby student to overhear it. After recounting R. W.'s statement to Ms. Nova, Respondent walked over to D. S. and M. B., who were seated next to D. S. D. S. knew Respondent because he had taken a class from her the previous school year. Respondent asked D. S. if he would talk to R. W. because he and R. W. were friends and see what was going on with him. The incident during second period was not the sole reason that Respondent might have wondered what was going on with R. W., whose behavior and academic performance had been deteriorating recently. By this time, the bell had rung, and Respondent was walking toward the classroom door to return to her classroom. D. S. and M. B. asked Ms. Nova if they could go to the restroom. Ms. Nova said that they could, so D. S. and M. B. exited the classroom directly behind Respondent, who held open the classroom door for them. Hallway camcorders recorded much of what followed. The camcorders of main interest are identified in the video as Cameras 5 and 6. Located in close proximity to each other, these cameras display opposite ends of the same hallway. Thus, a person walking toward one camera will eventually walk off the bottom of the frame, only to appear at the bottom of the frame of the other camera. A small portion of the hallway, directly beneath both cameras, is not covered by either camera, so a person would not instantly appear in the frame of the other camera as soon as she left the frame of the first camera. The video is timestamped to thousandths of a second, and, at least at the level of seconds, the times for the two cameras are closely synchronized. If the cameras are out of sync at all, it is by no more than a couple of seconds. The video from Camera 6 reveals that Respondent held open the door for D. S., who passed through the door immediately ahead of Respondent. Respondent released the door, but, before it had swung closed, M. B. passed through the door a few steps behind D. S. Both boys walked in the direction of Ms. Tyndale-Harvey's classroom. Rather than proceed in the opposite direction, toward her occupied classroom, Respondent stopped in the middle of the hallway and then followed the two boys for about six seconds, as they approached and stopped at the door of Ms. Tyndale-Harvey's classroom. Both boys looked directly at Respondent, who, for two to three seconds, might have talked to the boys, but it is impossible to know for sure because her back was to the camera. Respondent suggests that she counseled the boys not to run in the hallway, but clearly they were not running. Also, considering that third period had already begun, it is unlikely that, even if two eighth-grade boys were running down the hall, Respondent would so diligently supervise them, even to the extent of following them down the hall for six seconds in the opposite direction of her classroom, and completely ignore the needs of the classroom of her students awaiting her arrival. It appears, then, that Respondent said something to the boys, and it had nothing to do with not running in the hallway. Just before the boys entered Ms. Tyndale-Harvey's classroom, Respondent turned around and started to walk up the hall toward her classroom. Seven seconds after entering Ms. Tyndale-Harvey's classroom, D. S. and M. B. reentered the hallway with R. W. By this time, Respondent was out of range of Camera 6, but she was within range of Camera 5. The video from Camera 5 reveals that Respondent did not immediately enter her classroom. Instead, for about ten seconds, Respondent stared down the hall in the direction of Ms. Tyndale- Harvey's classroom. Based on the timestamps on the two videos, Respondent saw D. S. and M. B. leave the classroom with R. W., and she saw the boys walk R. W. across the hall, where one of the eighth-grade boys opened the door of another classroom, which was occupied at the time. At this point, Respondent entered her classroom, so she did not see what followed in the hallway. The circumstances under which R. W. left Ms. Tyndale- Harvey's classroom are difficult to establish. D. S. testified that he asked to talk to R. W., but he did not say whom he asked. R. W. testified that two boys--D. S. and A. S.--entered Ms. Tyndale-Harvey's classroom and asked the teacher if they could take R. W. because Respondent needed to talk to him. An especially reliable student witness, S. W., testified that she heard the boys tell R. W. that Respondent needed him, and he thus left the classroom with them. Ms. Tyndale-Harvey testified that, by the time that she took attendance toward the beginning of third period, R. W. was not in her classroom. When she asked if anyone knew where he was, several of the students said that he was talking to Respondent. The hallway was clear when the boys and R. W. left Ms. Tyndale-Harvey's classroom, so third period had started, but it is possible that the teacher had not yet taken attendance by the time that R. W. had left. Given the statements of the other students and presence of D. S. and M. B. in the classroom for a total of only seven seconds, it is more likely than not that they persuaded R. W. to join them in the hall without informing or asking Ms. Tyndale-Harvey. The video from Camera 6 reveals that no one left the second classroom to join D. S., M. B., and R. W. in the hall. The three boys went down the hall, still within range of Camera 6, but no longer being observed by Respondent. D. S. or M. B. ducked into a third classroom, from which, in short order, four students joined them in the hall. Up to this point, R. W. was being escorted, but did not appear restrained. While standing in the hall at the door of the third classroom, R. W. stood by himself, only two or three steps from his classroom, but making no attempt to reenter his classroom. However, almost immediately after the four boys joined D. W. and M. B. in the hallway, several of the boys physically confronted R. W., who tried to escape up the hall. One of the boys grabbed him after only a couple of steps and R. W. stumbled. Now surrounded by five or six boys, R. W. kneeled on the floor as the boys grabbed at and pushed him. One of the boys removed his cloth belt and swatted at R. W.'s lower torso seven times, as three of the other boys held R. W. against the wall. The evidentiary record does not establish that R. W. suffered any physical injuries as a result of this incident, whose intensity is impossible to describe. The boys are relatively far from Camera 6, and any views of R. W. are intermittent due to the movement of him and the other boys during the incident. Clearly, though, whatever level of intensity that the incident attained, tapered off considerably after about 30 seconds. About one minute after the start of the incident, the media specialist, who has worked at the school in her present position and as a teacher for 28 years, entered the hallway and walked right by the boys. She gave them a look, but noted nothing out of order--besides, one hopes, the presence of six students loitering in the hall in the middle of third period. The media specialist continued walking up the hall. The students followed her five or six steps behind. At this point, two students were holding R. W., possibly by his backpack, which had remained in place during the hallway incident. As these three boys approach Camera 6--and thus were clearly depicted right in front of the lens--the boys' grasp of R. W. is light, and R. W. is smiling. The other four boys are trailing the first three and are talking in pairs, paying no attention to R. W. Based on the foregoing, Petitioner proved that Respondent was aware that D. S. and M. B. left Ms. Nova's classroom and headed toward R. W.'s classroom, departed Ms. Tyndale-Harvey's classroom with R. W., and walked across the hall with R. W. and opened the door of another, occupied classroom. Petitioner also proved, of course, that Respondent never intervened with the boys during these actions. Petitioner proved that Respondent had just asked one of the boys to talk to R. W. before he left the classroom to visit Ms. Tyndale-Harvey's classroom. Even in a preponderance case, it is impossible to infer that Respondent knew or reasonably should have known that D. S.'s walking to and into Ms. Tyndale-Harvey's classroom meant that he was going to act on her request. But this is a reasonable inference as soon as D. S. emerged from the classroom with R. W., especially given the proximity in time between Respondent's request and D. S.'s action in retrieving R. W. from class. Seeing D. S. and M. B. walking R. W. across the hall and open the door of another occupied classroom establishes the inference that Respondent knew or reasonably should have known that the boys were not merely going to talk to R. W. about what might be wrong. D. S. and M. B., as well as all of the other eighth-grade boys, were much larger than R. W., so D. S. and M. B. did not need allies in order to talk to R. W. safely. More likely, the presence of allies was at least for intimidation, or worse. The Petition alleges a duty to act based on Respondent's having just heard one or both of the students ask if they could confront R. W. The evidentiary record does not establish such a request. However, Petitioner's opening statement predicates the duty to act on Respondent's instruction to one of the boys to talk to R. W. (Tr. 15) As discussed in the Conclusions of Law, the point here is that Respondent has established a specific basis for notice and a heightened duty to act on Respondent's part, and basis alleged in the Petition--D. S.'s asking Respondent if he may confront R. W.--is close in time and content to the proved basis-- asking D. S. to talk to R. W. Interlude The media specialist who had passed the boys in the hall was headed to Respondent's classroom to schedule an author visit. The media specialist entered the classroom and, four or five seconds later, so did the six students and R. W. The media specialist remained in Respondent's classroom for a little over one minute. About 20 seconds after she left the room, so did the six students and R. W. The boys urged R. W. to apologize to Respondent. He did so once, but laughingly. Urged by the boys to apologize again, R. W. did so, the second time more sincerely. Respondent thanked R. W. for the apology, but said that she was still going to have to write a referral. Respondent said nothing else to R. W. The boys escorted R. W. down the hall, past his classroom, and into an adjoining hall, where they walked him into a restroom. From the video, it appears that one of the boys locked the door behind them. The boys remained in the restroom for less than one minute. R. W. then walked out of the restroom. About 15 minutes after the boys had left Respondent's classroom, the Dean's clerk went by the classroom and informed Respondent that R. W. had told her that he had been "jumped in the boys' bathroom" by six boys. The clerk added that R. W. had told her that the boys had attacked him on Respondent's instruction. The clerk told Respondent that she was taking R. W. to the front office so he could tell administrators what had happened. Three Alleged Instances of Student Witness Tampering Within three minutes after the clerk and Respondent parted, the six eighth-grade students involved in the hallway incident (plus another student who does not appear to have been involved) entered Respondent's classroom. They met with Respondent in a separate planning room that was in the back of the classroom. Respondent testified that she asked what had happened, and the boys told her about the incident in the hall--with one boy saying that he had removed his belt, but he had hit the floor with it. Respondent testified that they would have to tell the Dean what they had done. About five minutes after entering Respondent's classroom, the six students left it. On this record, it is impossible to find that that Respondent said anything more to the boys. It is thus impossible to find that Respondent tried to influence or interfere with these students in terms of what they would tell school investigators. The second alleged instance of interfering with student witnesses involves Respondent's third-period class, which witnessed the eighth-grade students' production of R. W. before Respondent. One student from this class, D. D., testified that, after Respondent had finished meeting with the boys in the planning room, she asked the class what would R. W. have looked like if he had been beaten up, and the class responded with suggestions. Although this student testified that R. W. did not look as if he had been beaten up, he did not testify that Respondent ever followed up with the obvious question of whether W. looked as if he had been beaten up to the students. Another student from this class, M. C., testified, but was not asked what Respondent had said to the class after talking to the boys in the planning room. The only other student from this class called as a witness, V. S., was also not asked about any comments that Respondent made to the class after talking to the boys in the planning room. It appears that, at hearing, Petitioner decided not to press the second alleged instance of interference with student witnesses. Any implication by Respondent that R. W. did not look beaten up while he was in her classroom was no more an attempt to influence the students than a statement asking them to remember when R. W. was in the classroom: both statements were true. Petitioner thus failed to prove any attempt by Respondent to influence student witnesses on these first two alleged occasions. However, at lunch on the day of the incident, Respondent visited some of her second-period students in the cafeteria. Five students concerning this incident were called as witnesses: W., C. T., K. H., L. J., and J. R. All of them were in R. W.'s second- and third-period classes. S. W. was an especially impressive witness. She also appeared to be quite fond of Respondent. S. W. testified that Respondent approached her and some friends while they were eating and asked if R. W. had said that he had been hurt, and S. W. replied that he had not. Respondent also asked if S. W. or her friends had heard R. W. say during second period, "If she opens her mouth one more time, I'm going to beat the shit out of her." Neither S. W. nor her friends could recall that; S. W. recalled that R. W. had said only, "Sometimes I wish I could curse out a teacher." C. T. was at lunch when Respondent approached him and asked if he and his friends remembered when R. W. had said, "If this bitch won't shut up, I'm going to knock her on the floor." Neither C. T. nor his friends recalled this statement. C. T. testified that R. W. said in second period, "I wish I could cuss out a teacher right now." K. H. testified that Respondent approached him at lunch and asked if he had heard R. W. say that "he wished he could knock that bitch the fuck out." K. H. replied that he not heard any such statement. K. H. testified that R. W. said that he had wished he could cuss out teachers, or words to that effect. L. J. testified that he did not recall anything, except that Respondent approached him during lunch and asked if R. W. had said "anything about he was going to beat the shit out of me." J. R. testified only that Respondent approached him at lunch and asked if he recalled that R. W. had used a curse word at her in class. Petitioner has proved that Respondent asked leading questions to each of these five students. Although the leading questions framed what Respondent apparently had understood R. W. to have said, not a single witness recalled any such statement from R. W. Under the circumstances, including the fact that Respondent had no role in conducting an investigation of her acts and omissions, the leading questions constituted improper influencing of student witnesses. Despite what Respondent understood R. W. to have said, the leading questions suggested to these student witnesses that R. W.'s statement was physically threatening, when it was not, and used one or more swear words, when it did not.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the above-cited violations of the Principles of Professional Conduct and School Board policy and terminating her employment. DONE AND ENTERED this 12th day of February, 2014, 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 12th day of February, 2014. COPIES FURNISHED: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC Suite 103 1300 Corporate Center Way Wellington, Florida 33414-8594 Leslie Jennings Beuttell, Esquire Richeson and Coke, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Dena Foman, Esquire McLaughlin and Stern, LLP Suite 1530 525 Okeechobee Boulevard West Palm Beach, Florida 33401 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Ft. Pierce, Florida 34947-5414
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2017.
The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1992.
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Roosevelt Harvey (Respondent) held Florida teaching certificate numbered 134571, valid through June 30, 1997. He is certified in the areas of mathematics, junior college, and administrative supervision. He has been employed by the Escambia County School Board for approximately 25 years, and scheduled to retire on August 1, 1991. During the 1987-88 and 1988-89 school years, Respondent was assigned to the Judy Andrews Middle School Center. 1/ In May 1989, Respondent was specifically assigned to assist Marc Brown, a classroom teacher, with maintaining discipline in Brown's classroom. The class was comprised of students with learning difficulties related to behavioral problems and lack of self control. The students had difficulty focusing on and completing tasks, and were often disruptive. On May 18, 1989, Brown's class was particularly disruptive. Respondent was first required to escort one sixth grade student, D. S., to the school dean's office to resolve a disciplinary referral submitted to the dean by Brown on the day before. The student was suspended. However, because there was no transportation available, the suspension was effective the following day and D. S. was returned to Brown's classroom. On May 18, 1989, other students in Brown's classroom were involved in altercations and leaving the classroom without approval. Respondent was subsequently directed to remain outside Brown's classroom and prevent students from leaving the area. Respondent was in the habit of using a double edged shaving razor blade to scrape errant marks off of duplicated copies of various written materials. The blade was not attached to any type of handle. On May 18, 1989, he was using the razor blade to remove stray marks from duplicated "National Geographic" articles which were to be used as part of a school project, while he monitored the hallway outside Brown's classroom. As Respondent stood outside Brown's classroom, the already suspended D. S. approached. Upon Respondent's inquiry, D. S.'s stated that he was on his way to the restroom. D. S. had no written restroom pass and Respondent instructed D. S. to return to the classroom. D. S. approached a second time and inquired about Respondent's razor blade. Respondent held the blade so that D. S. could see it, moved his hand holding the blade up and down vertically and stated, "Do you know what blood is? I'll show you blood." Respondent did not attempt any physical contact with D. S. and did not move towards the student. D. S. reentered the classroom. Some time thereafter, Respondent entered Brown's classroom to ascertain the whereabouts of another student. Upon Respondent's entry into the room, student J. C. approached and inquired about the razor blade. Respondent, otherwise occupied, ignored J. C., who persisted in his efforts to see the blade. Respondent eventually held the blade toward J. C. and stated, "I'm want to see some blood. Do you want to show me some of yours?" J. C. walked away from Respondent. Brown's classroom was in such a disorderly state, that Brown was distracted during the razor blade incidents. He did see student J. C. near the Respondent, and partially overheard Respondent's comment to J. C., but saw nothing that would suggest that the students were threatened by Respondent's behavior. Respondent believed that the students were "playing games" with him during the razor blade incidents. The razor blade was visible while he worked on the articles. He did not intend to harm or embarrass the students. Other than to encourage D. S. to return to the classroom, there is no behavior which directly involved an attempt to discipline a student. Although D. S. testified that he was "starting to get scared", neither D. S. nor J. C. yelled or attempted to run from Respondent. However, Respondent acknowledges that the actions were inappropriate and ill-advised. In 1986, Respondent received a three day suspension without pay from the Escambia County School Board for striking a student. In 1988, Respondent received A ten day suspension without pay from the Escambia County School Board for absences without authorization. Prior to the May, 1989 incident, the Respondent had sought transfer into a regular teaching position. Following the incident, he was suspended with pay from the Judy Andrews Center and then transferred to Pine Forest High School where he returned to classroom teaching. Other than the timing of the transfer, there is no evidence that the reassignment as directly related to the razor blade incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Education Practices Commission enter a Final Order suspending the teaching certificate of Roosevelt Harvey for a period of one year during which time Mr. Harvey shall be required to complete college-level course work on the subjects of assertive discipline and classroom management, followed by a one year probationary period. It is further recommended that, prior to employment in a classroom situation, Respondent submit to a psychological evaluation, to be supervised by the Education Practices Commission, in order to determine that the Respondent poses no threat of harm to students. DONE and RECOMMENDED this 28th day of August, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of August, 1991.
The Issue The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled “Notice of Termination of Employment Contract and Immediate Suspension Without Pay” (the “Notice”) from Superintendent of Schools Nikolai P. Vitti to Respondent dated August 30, 2013.
Findings Of Fact Respondent Michael Green has been employed by the School Board as a teacher since 2004. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, chapter 21197, Laws of Florida (1941), as amended (“Tenure Act”) and the Collective Bargaining Agreement (“CBA”) between Duval Teachers United and the School Board for 2008- 2011. At the time of the events at issue in this proceeding, Mr. Green was assigned to Butler Middle School as a health and physical education teacher and athletic director. At the time of the incident in question, which was at the beginning of the 2013-2014 school year, S.J. was a 14-year- old girl who was a student at Butler Middle School. She was starting her second year in the seventh grade. Based on the security video that was admitted into evidence, S.J. was very large for her age, nearly the size of Mr. Green. Principal Maurice Nesmith knew S.J. and characterized her as one of the worst of the 588 students at Butler Middle School. S.J. had a documented history of disciplinary problems for threats and acts of violence and for verbal and physical aggression toward other students, staff, teachers, and even administrators at Butler Middle School. Mr. Nesmith frequently received complaints from teachers, administrators and staff that S.J. was rude, disrespectful, defiant, and resistant to instruction. School security guard Javonne Johnson testified that he was familiar with S.J. and frequently had to deal with her because she would be outside of her assigned classroom without permission. Mr. Johnson stated that it was hard to make S.J. calm down when she was agitated. On January 30, 2013, S.J. caused what Mr. Nesmith’s Discipline Incident report termed “a major disruption” in the Butler Middle School cafeteria. S.J. was angered when a smaller male student snitched on her for throwing food. She commenced hitting the child in the head. She punched him several times before a security guard and assistant principal could intervene. S.J. then proceeded to fight the adults until they managed to corral her into Mr. Nesmith’s office. According to Mr. Nesmith’s report, S.J. stated to him that “she didn’t give a fuck, she don’t care about this shit.” Officer Frederick Robinson of the DCPSPD submitted a written statement confirming that S.J. told the adults, “I don’t give a fuck about nobody, I don’t give a fuck about the police,” and “No one is going to tell me what the fuck to do or say.” As a result of this incident, and many before it, Mr. Nesmith referred S.J. to an alternative school for the remainder of the 2012-2013 school year. Mr. Nesmith testified that when S.J. returned to Butler Middle School for the 2013-2014 school year there was no change in her behavior. Though she was not disciplined for her role in the incident with Mr. Green, S.J.’s return to Butler Middle School was nonetheless short-lived. By early October 2013, S.J. had again been referred to an alternative school because of repeated incidents, including one in which she threatened to kill another student (“I got bullets for your ass”). The School Board placed into evidence video taken by security cameras in the gym and in the hallway outside the gym. There is no sound on the videos. Visual aspects of the findings as to events in the gym and in the hallway on the morning of August 28, 2013, are mostly based on the security video. Findings as to what was said in the gym and in the hallway that morning are based on the credible testimony of witnesses. Brittany Knadle is a first-year physical education teacher assigned to Butler Middle School. On August 28, 2013, she taught a large physical education class of approximately 60 students during first period in the school’s gymnasium. S.J. was enrolled in Ms. Knadle’s first period class. Although it was only the second week of school, Ms. Knadle was already having problems with S.J.’s truculence and had complained to Mr. Nesmith about S.J.’s behavior in her class. On August 28, 2013, S.J. was disrupting Ms. Knadle’s class, wandering through the lines of students who in the security video appear to be lackadaisically performing calisthenics on the gym floor. Mr. Green entered the gymnasium in his capacity as athletic director to ask Ms. Knadle about coaching a sport. Ms. Knadle agreed to coach softball. Mr. Green testified that Ms. Knadle told him that she was having problems with S.J.’s refusal to follow directions. Mr. Green advised her to make S.J. stand against the wall and to give her a grade of zero for the day for nonparticipation in the class activity. Mr. Green stated that he had never met S.J. prior to August 28, 2013, but that he had heard about her physical assault on an administrator and had heard she was rude, disruptive, and disrespectful to authority figures. Mr. Green left the gym but returned a short time later with a form for Ms. Knadle to sign regarding the softball coaching position. Mr. Green observed S.J. continuing her disruptive behavior, wandering around the gym, walking through student lines and not participating in class. Mr. Green believed she was creating a safety hazard for the other students. He instructed S.J. to gather her belongings because he was taking her to the dean’s office. S.J. slowly strolled to the spot on the gym floor where her backpack lay. She stood over the backpack and then rummaged through it for several seconds. She then picked up the backpack and walked toward Mr. Green to exit the gym. Mr. Green testified that while S.J. had been belligerent and cursing during the entire incident, she appeared even more irate, threatening and confident after picking up her bag, saying to him and Ms. Knadle, “You all are going to make me fuck one of you up.” The security video shows S.J. and Mr. Green exiting the gym and into the school hallway. Mr. Green places his hand on S.J.’s shoulder. She walks straight across the hallway to the opposite wall. S.J. turns to face Mr. Green and drops her backpack. Mr. Green moves to within inches of S.J., very nearly nose to nose. At this point, S.J. pushes Mr. Green away with both hands. Mr. Green responds with a right hand strike to S.J.’s face. The blow appears to be a glancing one. S.J.’s head snaps to the right but she quickly recovers and moves toward Mr. Green with her arms flailing. Mr. Green backs up a step or two, braces himself with his right foot, draws back his right hand into a fist, then pushes off the right foot to deliver a full- force punch to S.J.’s face. S.J.’s head snaps violently back to the right and she staggers backward into the wall. Remarkably, S.J. once again shakes off the blow and again charges forward toward Mr. Green. At this point, Mr. Green wraps S.J. in his arms and takes her down to the floor. He holds her down for a few seconds until security arrives to take over. Mr. Johnson was the guard who took over and restrained S.J. He tried to calm her but she continued to yell and scream, cursing and threatening Mr. Green, saying she was going to “kick his ass.” Mr. Johnson noted no marks on S.J.’s face and refused to believe S.J.’s repeated statements that Mr. Green “hit a girl . . . he hit me in my face.” Officer Robinson of the DCPSPD handcuffed S.J. and placed her in the back of his patrol car to await arrest. Mr. Nesmith, who was visiting an upstairs classroom, was called via walkie-talkie and informed that Officer Robinson needed him. Mr. Nesmith came down immediately and spoke to Officer Robinson at his patrol car. Officer Robinson told Mr. Nesmith that he was arresting S.J. for battery on a School Board employee, and explained what happened in the hallway. Mr. Nesmith told Officer Robinson that there was a security camera in that hallway. They had a security guard wait outside with S.J. while they went inside to view the security video with Mr. Green, who had been waiting in Mr. Nesmith’s office. The three men reviewed the video. Mr. Nesmith testified that when he saw the video, he dropped his head and asked Mr. Green, “What were you doing?”1/ Mr. Nesmith immediately contacted the School Board’s professional standards office and his region chief to report the incident. He then took Mr. Green to the principal’s conference room and instructed him to write a statement. The statement that Mr. Green wrote in Mr. Nesmith’s conference room read as follows: I, Michael Green, entered the gymnasium to speak with Coach Knadle. At the time [S.J.] a student in Coach Knadle’s class was causing a disruption. The student was standing walking through the students cursing as they were sitting in roll call on the floor. [S.J.] was asked to get her books so I could escort her to the office to settle down. She began cursing loud causing a seen [sic] as she walked out of the gymnasium. I then stopped her in the hallway to keep her from cursing loud disrupting the learning environment. As she stopped in the hall she continued to curse and yell at me, saying fuck you, you ain’t nobody. I told her to quiet down and she pushed me. Then she started to swing at me. In my defense I tried to stop her arms from hitting me. I tried to keep her at a distance. She stopped for second [sic] then she started to attack me again. I then had to take her to the ground to keep her from attacking me. It is notable that this statement makes no mention of the fact that Mr. Green struck S.J. in the face twice during the altercation. Mr. Green would later contend that he feared S.J. had a weapon when she attacked him, but he made no mention of such a fear in this statement, written within two hours after the incident. Mr. Green was taken into custody by DCPSPD for suspected child abuse. He was interviewed by Detective Don Schoenfeld, who had reviewed the security video. Mr. Green told Detective Schoenfeld that he did not remember hitting S.J. After the interview, Detective Schoenfeld had Mr. Green write a statement.2/ Mr. Green’s statement to Detective Schoenfeld read as follows: I Michael Green entered the gymnasium3/ to speak with another teacher. The teacher was having difficulty getting the student to follow directions. The student began to walk around and throughout the other students causing a safety issue. The student was asked to gather her belongings so that I could escort her out of the gymnasium and to the office where she could calm down. The student began to curse using all kinds of profanity as she exited the gymnasium. Once entering the hallway the student continued to talk loud and curse causing a comotion [sic]. I approached the student to keep her from running and acting wild and crazy. She pushed me with both hands. She continued to curse and threaten me saying “fuck you,” “you ain’t nobody,” “what’s up.” I then tried to keep her at a distance. She began to swing and punch at me. I then tried to subdue her to keep her from causing harm to me and herself. Once I got her to the ground I called for security to assist the situation. As in his earlier statement, Mr. Green here makes no mention of the most notable aspect of the incident: that he struck a seventh grade student twice in the face with his fist. He also makes no mention of any concern that S.J. might have had a weapon. Mr. Green was arrested and spent the night in jail.4/ He was charged with child abuse but the state attorney later dropped the criminal charges. Upon his release from jail, on August 29, 2013, Mr. Green was informed by Mr. Nesmith that he was to report immediately to the School Board’s Consolidated Services Warehouse/Teacher Supply Depot at Bulls Bay until further notice. On or about August 30, 2013, Mr. Green received the Notice, which informed him of the charges against him and of his right to contest those charges. The Notice stated that if Mr. Green chose to exercise his right to a hearing, he would be suspended without pay as of September 4, 2013, and that this suspension would be acted upon by the School Board at its meeting on September 3, 2013. On September 3, 2013, Mr. Green sent an email to Superintendent of Schools Nikolai P. Vitti that read as follows:5/ Dear Dr. Vitti, I am writing you this letter with the deepest concern of my character. First, I would like you to know that by no means am I an evil person or even a child abuser, I am far from what has been perceived of me due to the situation at Eugene Butler. I love and care about my students and I am very sorry for what happened but in all honesty I was defending myself. Please take a few minutes from your busy schedule to read this letter and consider me for reinstatement of my job. I entered the gym that particular day to get a signature from a coach because I proudly serve as the Athletic Director. As I was getting the signature the young lady who works in PE with me was having trouble controlling her class, she asked me to intervene and assist her. She is a first year teacher, small statute young white female who is presently teaching some students that are academically and behavioral challenged. This situation is rough on a first year teacher. I was able to calm her class down and get them in their roll lines but this one particular student continued to curse and disrupt the learning environment. This student was just getting back from Grand Park Alternative School this year. I was aware of her past and her behavioral problems so I asked her why she can’t follow instructions. I told her to report to the Dean’s office, still using abusive language she told me “Fuck You” over and over and continued to say “you ain’t nobody”. She walked to get her bag and gather her belongings. I saw her reach inside a bag she was carrying. I asked her to get out the gym because at that time I felt the other students were in danger and this student was causing a serious uproar. Before leaving the gym she said “y’all mother fuckers always trying me!” She continued to curse and got animated walking to the door. When she left the gym I followed her out at a cautious distance and instead of heading to the Dean office she was headed in the opposite direction to the front office. I told her she was headed the wrong way and this is when I stepped in front of her. I was trying to calm her down and keep her from causing a commotion in the hallway and keep her from walking to the front office. Then she raised her hands and pushed me saying “what’s up” in a threatening manner. Honestly it happened so fast sir until I was in defense mode because I knew what she had done to other staff members and the idea of her possessing a knife really scared me. It was a situation that I have never been in before and I panicked. The student became combative in an instance and I really didn’t know how to handle the situation. She came at me swinging and saying “what’s up, what’s up.” I was backing up trying not to let her get to me because I thought she could have had a weapon. She continued to attack me moving in my direction. When I realized she didn’t have a weapon I took her to the ground calling for security. Once I had her on the ground she continued to kick and try to break away. The entire time she continued to curse and saying “I’m gonna fuck you up”, I’m gonna kill you. Security arrived and she continued to say “let me go so me and this mother fucker can fight.” Again, I have never been in a situation such as this one. I feel truly sorry that this happened. Since the incident I haven’t been able to sleep and I have become depressed over the fear of my career being put in jeopardy. I have over ten plus years of service with Duval County and I have never been involved with anything such as this situation. In closing this letter, I am currently enrolled in graduate school with only three more classes to go and I am majoring in Educational Leadership. I really have hopes and dreams of being a leader one day in this wonderful district but I am praying that you have mercy on me for this situation and consider the circumstance and not to think that I am a child abuser but only I was defending myself from a violent student. I love my job and I really want to continue my career in Duval County. Please consider me for reinstatement, I am sorry for what happened and I am so willing to attend any training or workshops that the district provides to help teachers in these situations. This email again fails to admit in a straightforward manner that Mr. Green punched S.J. in the face. In this email, his third written description of the events in the hallway on August 28, Mr. Green for the first time states that he feared S.J. had a weapon, presumably a knife that she had pulled out of her bag while gathering her belongings in the gym. In the email, Mr. Green also states that he believed he was protecting the other students in the gym class from “danger” and that S.J was causing a “serious uproar” in the gym. The security video shows that the other students were more or less ignoring S.J. as she wandered in and out of the lines and around the gym.6/ In her testimony, Ms. Knadle disagreed that the class was out of control. She stated that the students were loud and were talking over her, and she agreed that Mr. Green was able to calm the students down by speaking to them. Six of seven School Board members were present at the September 3, 2013, meeting at which Mr. Green’s case was considered. The vote to suspend Mr. Green without pay and to terminate his employment with the Duval County School Board was unanimous. In his testimony at the hearing, Mr. Green complained that he had never received training on how to deal with violent students. Sonita Young, the School Board’s chief human resource officer, testified that the School Board offers training in proper restraint techniques to all teachers who specialize in working with students with behavioral disorders and to other teachers on an as needed basis. As a general education teacher, Mr. Green was not an obvious candidate for such training. Ms. Young testified that the training needs of a school are generally determined by the principal. Mr. Nesmith testified regarding “CHAMPS” training in classroom management techniques that all new teachers at Butler Middle School are required to attend. Mr. Nesmith did not require Mr. Green to take this training because there were no apparent deficiencies in Mr. Green’s classroom management. Most tellingly, Mr. Nesmith testified that “teachers know not to punch a student.” A teacher lacking training may face situations in which he must improvise a method of restraining an out-of-control student, but there is no excuse for such improvisation to descend to a fistfight with a middle school student. Mr. Johnson, the security guard, testified that when he is confronted by a physically aggressive student, “I just wrap them up, put my arms around them to keep them from being able to strike me or hurt themselves. If they continue to be aggressive, I put them on the floor and restrain them there.” This common sense approach is exactly how Mr. Green resolved the situation with S.J., but only after twice punching her. It is disingenuous for Mr. Green to contend that he required specialized training to know not to draw back his fist and strike a 14-year-old student in the face. Mr. Green explained the inconsistency of his statements by asserting that he was so stunned by the rapidity of events on the morning of August 28 that he was “out of it.” Mr. Johnson testified that Mr. Green seemed “somewhat bewildered . . . like he couldn’t believe what had just happened.” Mr. Green testified that at the time he wrote his first statement, he honestly believed he had not struck S.J., despite having seen the security video. Mr. Green’s testimony on this point is not credible. His written statements were clearly efforts to minimize his own actions and cast all blame for the incident on S.J. Mr. Green testified that he feared S.J. had pulled a knife out of her bag because of her increased confidence and belligerence after rummaging through her bag prior to leaving the gym with Mr. Green. He further testified that his punches were a desperate attempt to keep S.J. away from him in case she was wielding a weapon. Once he was sure that she was unarmed, he wrapped her up and took her to the ground. Mr. Green’s testimony on this point is undercut by his behavior prior to the first blow being struck. After S.J. backed up against the wall, Mr. Green moved in close, nearly nose to nose with S.J. He testified that this is a technique he learned from watching another teacher deal with angry students. Mr. Green moves in close while speaking calmly to the student, forcing the student to look him in the eye, feel safe, and calm down. Mr. Green’s explanation of this technique was not entirely credible. The psychological rationale of standing extremely close in order to calm a student is not readily apparent. On the security video, Mr. Green’s moving in on S.J. appears more an effort to employ his bulk to intimidate the student than to calm her. Even if Mr. Green’s explanation of his motive were credited, his action had the opposite of its intended effect. There is little question that his invasion of S.J.’s personal space was the proximate cause of her pushing him away, which started the fight. In any event, Mr. Green’s willingness to closely approach S.J., with his arms at his sides, belies his later assertion that he feared the child was holding a knife. His apprehension of a weapon appears to be an explanation concocted after the fact to explain why he chose to punch S.J. rather than restrain her. Mr. Green’s defense pointed out that no witness to the aftermath of the incident noted any marks, bruises, discoloration or severe injury to S.J.’s face. The fact that there were no marks on S.J.’s face was a matter of fortuity and no thanks to Mr. Green. This defense also overlooks the potential psychological harm to the child. S.J. was handcuffed, arrested, and placed in a patrol car because the adults did not believe that Mr. Green had punched her and Mr. Green himself would not own up to his actions. Much testimony was presented as to Mr. Green’s character, his genuine concern for students and their respect for him, and his lack of any prior disciplinary history. All of this testimony has been considered and fully credited. Much evidence was presented as to S.J.’s obstreperousness, her foul manner of speaking, her complete disregard for authority, and her perpetual verbal and physical aggression toward other students, staff and faculty of Butler Middle School. This evidence has likewise been considered and fully credited. However, even if it is stipulated that Mr. Green is an exemplary human being, a fine teacher and coach with an unblemished record, and a dedicated employee of the School Board, and it is further stipulated that S.J. was the worst student ever to darken the corridors of Butler Middle School and was in fact asking for what she got on August 28, 2013, there would be no excuse or rationalization sufficient to lessen the impact of Mr. Green’s actions on that date. When confronted with a large and aggressive student, Mr. Green’s instinct was to do exactly the wrong thing and punch her in the face. He compounded the harm by equivocating as to his actions even after seeing video evidence of what he had done. Mr. Green’s instinctive reaction during this incident could not help but effect the way he is viewed by his peers in the teaching profession and by the students who are entrusted to his care. His judgment and honesty are in question, at best. His effectiveness in the classrooms and the gymnasium of Butler Middle School has been irreparably impaired. In light of his spotless disciplinary record up to the time of the incident, the School Board could have considered transferring Mr. Green to another school to give him a chance to salvage his career. However, given the ferocity of the events depicted in the security video, the decision to terminate Mr. Green’s employment is entirely understandable. The evidence fully supports the School Board's preliminary decision to terminate Mr. Green's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order terminating the employment of Michael A. Green as an instructional employee of the School Board. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2014.
The Issue Whether just cause exists to suspend Respondent, a teacher, for ten days without pay for putting hand sanitizer in a student’s mouth.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District in 2007. In October 2019, she was teaching at PPMS as a science teacher. Prior to the incident involved in this case, Respondent received no discipline from the Board. Respondent is an experienced teacher who has been trained on the proper method of interacting with students, exercising best professional judgment, and following policies, rules, and directives. Respondent received training concerning ethics relative to her position with the District as a teacher. Respondent has been through the orientation process for new employees of the District three times. The Incident Giving Rise to Discipline On October 14, 2019, Respondent was teaching a science class of approximately 30 sixth and seventh grade students. In this class was sixth grade student X.S., who was being verbally disruptive. Although X.S. was not cussing, Respondent told him that he needed to have his “mouth washed out with soap.” Respondent reached behind herself to grab a bottle on her desk which was either hand soap or hand sanitizer. X.S. and Respondent walked towards each other. X.S. challenged Respondent to “Do it!” Respondent raised the bottle to X.S.’s mouth and pumped in a substance from the bottle. X.S. bent over and spit on the floor. Respondent asked X.S. what he was doing, and he stated that he got hand sanitizer in his mouth. As X.S. stood up, X.S. was observed wiping his mouth and Respondent told him not to spit on the floor. X.S. left the classroom to go to the bathroom and rinse his mouth. His fellow students immediately began talking about the incident while Respondent returned to her desk. The Investigation X.S. did not immediately report the incident because he did not want to anger his foster mother. However, on the day after the incident, October 15, 2019, three students approached PPMS Principal Aronson and Officer Michaels and reported that Respondent had squirted hand sanitizer into X.S.’s mouth. Officer Michaels spoke to the students and X.S. individually and asked them to provide written statements regarding what they observed.1 Principal Aronson and Officer Michaels questioned Respondent regarding the incident. When approached by Officer Michaels, Respondent asked, “What is this about?” He responded that, “this is about squirting hand sanitizer into a student’s mouth.” Respondent said, “It wasn’t hand sanitizer. It was soap.” Respondent did not deny squirting something into X.S.’s mouth to either Principal Aronson or Officer Michaels. Principal Aronson asked Respondent to leave campus. He accompanied her to her classroom and observed a bottle of hand sanitizer on her desk. Principal Aronson also contacted Human Resources to report the incident and spoke to Human Resources Manager Jose Fred who handled overseeing the investigation from that point forward. 1 These written statements, Exhibits 11 through 16, were admitted over Respondent’s objection that they contain impermissible hearsay and are unduly prejudicial because these students refused to attend their scheduled depositions or appear for final hearing. However, their general descriptions of the incident were corroborated by the deposition of student J.C., as well as in part by Respondent. As discussed in Florida Administrative Code Rule 28-106.213(3), hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless the evidence falls within an exception to the hearsay rule as found in sections 90.801-.805, Florida Statutes. On October 15, 2019, Respondent was issued the one-day stay at home letter from Mr. Aronson titled “Assignment to Your Residence with Pay for October 15, 2019.” On October 15, 2019, Respondent was also issued a letter advising her that she was assigned to her residence for October 16 and October 17, 2019. Mr. Fred, under the supervision of Vicki Evans-Paré, Director of Employee and Labor Relations, compiled written statement of six students, took a written statement of Respondent on October 17, 2019, and drafted an Investigative Report dated October 18, 2019, which substantiated violations of applicable rules and Board policies. In her statement to Mr. Perez, Respondent claims it was X.S. who put his hand on hers and pulled the bottle to his own mouth and that she did not squirt anything. However, the remainder of her statement is consistent with the students’ reports of the incident.2 Post-Investigation Due Process On October 30, 2019, Respondent was provided with a Notice of Pre- Determination Meeting, which provided her with the allegations of misconduct. Respondent was provided with a copy of the entire investigative file and time to review it with the representative of her choice. Respondent attended a Pre-Determination Meeting on November 9, 2019, to give her the opportunity to provide any additional information, dispute, and explain or elaborate on any information contained in the Investigative Report. The Employee and Labor Relations (“ELR”) Department enlists the Employee Investigatory Committee (“EIC”) which reviews all of ELR’s case 2 At final hearing, Respondent testified that the bottle was never near the student’s mouth. This is wholly inconsistent with her prior written statement to Mr. Perez, her deposition testimony, and the statements of the students. This conflict negatively impacted Respondent’s credibility. files, inclusive of all documents maintained by ELR, of anything that might lead to suspension or termination, to make a suggestion to the Superintendent, if the allegations are substantiated. Once the EIC decides that the allegations are substantiated and recommends discipline, Ms. Evans-Paré takes the entire employee investigative file, inclusive of the EIC’s recommendations, to the Superintendent who then makes the ultimate recommendation for employee discipline. On November 22, 2019, Respondent was provided with supplemental information to the investigative file and provided an opportunity to respond to the documents by December 6, 2019. On December 9, 2019, Respondent requested that her response be placed in her file. She wrote “in response to the copies of the information from the District that is being used as evidence against me …” after reviewing the case file, complained that only six of 22 students were interviewed or provided statements and it was not an ethical, random sample of the class. Respondent also alleged that the documents had been altered; however, she did not provide any evidence of such during the final hearing or within the response. On December 6, 2019, Respondent again provided a response to the student witness statements to ELR wherein she stated “I have 22 students in my class, only 6 students filled out statements? You have 3 black children submitted in reporting, of which one is not accurate. Yet, they are the minority in this class, of which, 2 out of the 6 statements were from Hispanic students. It is surprising that not a single white student in my class noticed the incident.” On January 24, 2020, Respondent was notified that the Superintendent would recommend her a ten-day suspension without pay to the Board at its February 19, 2020, meeting. On February 19, 2020, the School Board adopted the Superintendent’s recommendations to suspend Respondent without pay for ten days. Respondent’s Post-Suspension Status Respondent’s suspension by the Board was picked up by the Associated Press and reported across social media and traditional media platforms locally and nationwide. Ms. Evans-Paré testified that typically, when a teacher is alleged to have done something inappropriate with students, the District cannot have the teacher in a classroom around students, so the teacher is reassigned to another location. Respondent was reassigned to adult and community education, so she was in a no-student contact position. Respondent was then moved into Human Resources Funding 9920 status due to the press and comments from the parents received by Principal Aronson and her inability to be returned to PPMS. This allowed Principal Aronson to hire another teacher to take her place. Respondent has not been back in the classroom as a teacher for the District since October 15, 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the ten-day suspension without pay and return Respondent to the classroom. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. V. Danielle Williams, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 867 West Bloomingdale Avenue, Suite 6325 Brandon, Florida 33508 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Jean Marie Middleton, Esquire Palm Beach County School Board Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D. Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869
Findings Of Fact Respondent currently holds Florida teaching certificate number 576645, which covers the areas of elementary education and mathematics. Respondent's certificate is valid through June 30, 1992. During the 1990-91 school year, Respondent was employed as a third grade teacher at Markham Elementary School in the Broward County School District. 1/ On an undetermined date during the 1990-91 school year, Respondent hit, M.R., a female student, with a wooden ruler that was twelve inches long and one inch wide. Respondent's action was in response to M.R.'s behavior of talking in class without permission. M.R. was hit on the palm of her hand with the ruler in front of the class. M.R. was embarrassed by the incident, but she did not cry. On another occasion, M.R. was talking in class. There was a dispute in the testimony as to whether M.R. was using profanity. Respondent testified that M.R. was using profanity, while M.R. denied using profanity. Respondent took M.R. to the bathroom at the rear of the classroom, told M.R. to place soap on her hands, and made M.R. wash her mouth out with soap. 2/ During the 1990-91 school year, Respondent hit K.S., a female student, on the palm of the hand with the twelve inch wooden ruler. This discipline occurred at the door to the bathroom at the rear of Respondent's classroom. K.S. became upset and began to cry. Another student saw K.S. crying. On one occasion, while talking to K.S. in the bathroom, Respondent told K.S. to pretend to cry to make the other students believe that she had been punished. Respondent had not administer corporal punishment to K.S. on that occasion, but Respondent wanted the other students to believe that they would be punished if Respondent took them to the bathroom. The Respondent hit K.C., a male student, on the palm of the hand with a wooden ruler, and on the buttocks with a small board. On one occasion the Respondent took K.C. into the bathroom and hit him with a ruler. The Respondent threatened on other occasions to hit K.C. with a ruler. The Respondent threatened to hit L.S., a female student with a ruler. L.S. witnessed the Respondent hitting other students on the hand with a ruler. The Respondent hit V.D., a female student, on the palm of the hand with a ruler. V.D. cried after being hit with the ruler. The Respondent hit K.C., a female student, on the palm of the hand and buttocks with a ruler. The Respondent hit K.C. in the bathroom and in the classroom. The Respondent hit S.T. 3/, a female student, on the palm of the hand with a wooden ruler, causing S.T. to cry. The Respondent hit or tapped T.B., a male student, on the hand with a ruler. The Respondent's conduct in hitting the students with a ruler was not done in self-defense, but as a disciplinary measure that was intended to both punish and intimidate the students. At hearing, the Respondent offered a composite exhibit of permission forms, purporting to demonstrate parental permission to use corporal punishment against K.S., T.B., K.C. (female student) and D.R. (a student who did not testify). Respondent did not offer any permission forms from the parents of M.R., S.T., K.C. (male student), or V.D., although the evidence established that Respondent struck these students with a ruler. Regardless of parental permission, the discipline administered by Respondent violated district policy, which forbids corporal punishment of any kind. After an investigation into allegations that the Respondent had struck students, students were called to the school office to be interviewed. The Respondent discussed the pending investigation with her class. Several students recalled that on the day that they were to be interviewed she told them she might go to jail if students told the investigators that she had hit them. None of the students testified that Respondent told them, as a group, to lie to the investigators. In fact each of the students testified that the Respondent told the class to tell the truth. There was a conflict in the evidence as to whether Respondent told S.T. and V.D. individually not to reveal that she had hit them, or to say that she had hit them fewer times than she actually had. This conflict is resolved by finding that Respondent's denial that she told either S.T. or V.D. to lie is more credible than the testimony to the contrary from S.T. and V.D. Therefore, it is found that Petitioner failed to establish that Respondent told her students to lie about her discipline practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of facts and conclusions of law contained herein, which provides that a letter of reprimand be issued Respondent by the Education Practices Commission, and which places Respondent's certification on probation for a period of two years. It is further recommended that the terms and conditions of probation be identical to those recommended by Petitioner in its post-hearing submittal. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of May, 1992. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1992.
