The Issue Whether it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for 90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes. Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so. Respondent's teaching record contains memos regarding the following: Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03); A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004); A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005); Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07); A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005); A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated. DONE AND ENTERED this 23rd day of January, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 23rd day of January, 2009. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33770-2942 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue Whether the Respondent should be reassigned to the Opportunity School.
Findings Of Fact Alejandra entered Rockway Junior High on March 19, 1984. Prior to entering Rockway, Alejandra had been an attendance problem at her former school. Three days after starting at Rockway, on March 21, 1984, Alejandra was picked-up for truancy. On April 9, 1984, Alejandra was again truant and was placed in the indoor suspension program. On April 10, she was warned about her behavior in the indoor suspension program, and on April 11, she was caught smoking cigarettes. On April 12, she disrupted indoor suspension and, therefore, was suspended from school. Her father was contacted concerning Alejandra's behavior. On April 23, 1984, a conference was held with Alejandra's father. At that time he explained that he had only had temporary custody of Alejandra and that Alejandra was again living with her mother. It was determined that the mother did live in the Rockway Junior High district and that Alejandra should transfer to West Miami Junior High School. On April 24, 1984, Mr. Plate found Alejandra on the school grounds. Mr. Plate initially testified that Alejandra was "trespassing" on school property because she was still suspended from school. He later changed his testimony because the suspension was for 10 days and the last day of the suspension was April 22, 1984. Mr. Plate testified that he saw Alejandra in the late afternoon and she was not appropriately dressed for class. Mr. Plate told Alejandra that she should have her mother come to the school and fill out the forms necessary to accomplish Alejandra's transfer. He also informed Alejandra that she no longer belonged at Rockway and she should not return. At no time did school personnel verify that Alejandra was living with her mother or verify the mother's address. Mr. Plate thought that the visiting teacher had been sent to the home, but he did not know whether contact had ever been made with Alejandra's mother. On May 21, 1984, Alejandra was referred to HRS because of her truancy, and on June 22, 1984, she was recommended for transfer to Opportunity School. Alejandra's last day in school was April 12, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered disapproving the assignment of the Respondent to the opportunity school program at Youth Opportunity School South and assigning the Respondent to the appropriate regular school program. DONE and ENTERED this 16th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of August, 1985 COPIES FURNISHED: Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary and Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida 33137 Phyllis Douglas, Esq. 1410 N.E. 2nd Avenue Miami, Florida 33132 Madelyn P. Schere 1410 N.E. Second Avenue Miami, Florida Mr. and Mrs. Julio Guerra 3331 S.W. 90 Avenue Miami, Florida 33165 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Respondent, George L. Johnson (Johnson), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board), since 1982. 1/ The 1982-83 School Year In August 1982, Johnson was employed by the School Board as an occupational specialist, and assigned to Jan Mann Opportunity School. During the course of that employment, two events transpired which foreshadowed Johnson's conduct during the 1985-86 school year, and which precipitated this disciplinary proceeding. The first event occurred on March 9, 1983, when Johnson struck Pierre Sylla, an 8th grade student. On that date, Pierre had been disruptive in class, and had referred to Johnson by the nickname of "Flash". Pierre's conduct apparently offended Johnson's sense of decorum since he excused the class, called Pierre into a smaller room and, upon stating "this is why they call me Flash", punched Pierre in the left eye. The second event occurred on April 27, 1983, when Johnson struck Derrick Corner, a 14 year old student. On that date, Johnson was on leave, but reported to the school to pass out lunch cards. When Derrick approached Johnson to retrieve his card, he smelled alcohol on Johnson's breath and announced "I smell some Bacardi" rum. At that time, Johnson backhanded Derrick across the face, knocking him over a chair to the floor. On July 13, 1983, a conference was held between the School Board and Johnson to discuss the battery committed upon Pierre Sylla and Derrick Corner, as well as any disciplinary action to be taken against Johnson. The School Board concluded that Johnson would be referred to the employee assistance program, transferred to a regular school setting, and that no further disciplinary action would be taken. Johnson was, however, directed to comply with School Board rules for handling disruptive student behavior, and to discontinue the use of his hand in disciplining students. 2/ Notwithstanding Johnson's battery upon Pierre Sylla and Derrick Corner, Johnson's annual evaluation for the 1982-83 school year rated his performance acceptable in all categories, and recommended him for continued employment. The annual evaluation did note, however, that: Mr. Johnson's techniques for handling disciplinary problems need to be improved. Otherwise, he has potential for becoming a good teacher. The 1983-84 and 1984-85 School Years During the 1983-84 school year, Johnson was employed by the School Board as a physical education teacher at McMillan Junior High School. Johnson's annual evaluation for the 1983-84 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark contained on his evaluation was: Although your overall performance during the past year has been acceptable, I would recommend that you carefully self-evaluate your performance with regard to your professional responsibilities, i.e., punctuality. During the 1984-55 school year, Johnson was employed by the School Board as a physical education teacher at Riverside Elementary School and Douglas Elementary School. Johnson's annual evaluation for the 1984-85 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark on his evaluation was: You need to be on time every day and the same applies to lesson plans and reports. Adherence to school board policies is of the utmost importance -- also getting along with your peers. The 1985-86 School Year For the 1985-86 school year, Johnson was employed under a continuing contract with the School Board, and assigned to Silver Bluff Elementary School as a physical education teacher. The proof establishes that during the course of that school year Johnson reacted violently toward students for minor breaches of discipline, and that he failed to comply with lawful orders to refrain from the use of physical force to discipline students. That Johnson was fully cognizant of Silver Bluff's policy against the use of physical force is not disputed. At the school's first faculty meeting of August 28, 1985, Johnson was specifically advised that teachers were not to hit or paddle a child, and that they were not authorized to inflict corporal punishment. On September 16, 1985, following a complaint from a mother that Johnson had grabbed and shaken her son, the principal, Margarita Alemany, again cautioned Johnson that she did not approve of physical discipline, and that he was not to touch his students in any way. Notwithstanding the lawful directives of his principal, the evidence establishes that Johnson routinely relied upon physical and verbal abuse to discipline students for minor transgressions. From late September 1985 to December 1985, the proof establishes that Johnson committed the following abuses toward fourth grade students in his charge: Estany Carballo, who should have been standing in line, was playing in a mud puddle with a toy car. Johnson approached Estany from behind, grabbed his neck, and forced his head downward toward the water. Johnson pulled Estany up by the neck, admonished him "not to do that again", and returned Estany to his place in line. The force exerted by Johnson upon Estany was sufficient to traumatize his neck, inflict pain and limitation of movement, and require the treatment of a physician. Noah Verner and Aramis Hernandez were standing out of line and talking. Johnson grabbed each by the hair with a clenched fist, banged their heads together, and ordered them back into line. Robert Diaz, while standing in line, was talking to a girl behind him. Johnson approached Robert from behind, grabbed him by the hair and, exerting enough force to almost lift him from the ground, stated "who do you think you are asshole?" James Worthington was leaning against a fence, an apparent violation of a Johnson directive. Johnson grabbed his head between his hands and, shaking the child violently enough to induce pain, admonished James not to lean on the fence. Roberto Sanchez was attempting to perform an exercise with the rest of the class, but was unsuccessful. Johnson noted Roberto's failing to the class and opined vocally that if a boy couldn't do an exercise when he was in school, the whole class would beat the boy up. Johnson also embarrassed Roberto by referring to him as "fatso" in the presence of the class. While not exhaustive of the litany of incidents established at the final hearing in this case, the events related in paragraph 11, supra, establish Johnson's failure to abide by lawful directives of his superior, as well as a penchant toward a violent behavior which was harmful to the health and safety of his students. Due to the notoriety of his conduct, Johnson's service in the community, as well as his effectiveness in the school system, was severely impaired. In addition to its claims of insubordination and misconduct in office, the School Board also seeks to discipline Johnson under a claim of incompetence. The predicate for the School Board's charge are the results of three formal observations of Johnson's performance at Silver Bluff Elementary School between October 17, 1985 and January 10, 1986. On October 17, 1985, Ms. Catherine Day, assistant principal of Silver Bluff Elementary School, conducted a formal observation of Johnson's 1:30 p.m. - 2:00 p.m., second grade physical education class. It is worthy of note that the impetus for the October 17, 1985, observation was Johnson's request that the 1:30 - 2:00 p.m. class be observed. That class was a double class, over 60 students, and unwieldy. Ms. Day found that the session taught by Johnson did not comport with the mandatory objectives or activities contained in his lesson plan, that he did not explain to the students the objectives or activities for that day, that he provided no feedback to the students regarding their performance that day, that he allowed students to stand idle for 10 minutes and dismissed them 10 minutes early, and that his class record book contained no grades. Accordingly, Ms. Day rated Johnson's performance as unacceptable in the categories of (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction and (5) assessment techniques. Ms. Day reviewed the results of her observation with Johnson, provided Johnson with a prescription for improvement, agreed to provide Johnson with an assistant for the 1:30 - 2:00 p.m. class, and established a deadline of November 1, 1985, to correct the deficiencies. On November 20, 1985, the principal, Ms. Alemany, conducted a formal observation of Johnson's 10:15 a.m. second grade class and 10:45 a.m. sixth grade class. Ms. Alemany found, inter alia, that the lesson plan for Johnson's sixth grade class contained no objectives, that he failed to provide feedback or suggestions to improve performance, and that after 9 weeks his grade book for the sixth grade class failed to indicate the activity graded and for the second grade class failed to show any grades -- the grade book should have reflected one grade per week for a designated activity. Accordingly, Ms. Alemany, as did Ms. Day, rated Johnson's performance as unacceptable in categories (1) preparation and planning, (4) techniques of instruction, and (5) assessment techniques. On January 10, 1986, Ms. Alemany conducted the final observation of Johnson's performance. While Johnson's overall performance had improved, he was still rated unacceptable in categories (1) preparation and planning, since he failed to have lesson plans available, (4) techniques of instruction, since he failed to provide feedback or suggestions to improve performance, and (5) assessment techniques, since he failed to have any grades for the second, third, fifth or sixth grade classes. Ms. Alemany reviewed the results of her observation with Johnson, provided a prescription for improvement, and established a deadline of January 16, 1986, to correct the deficiencies. On January 17, 1986, a conference-for-the-record was held between Ms. Alemany and Johnson. At that time, Johnson's performance assessments were reviewed and he was advised: It should be noted for the record that you were advised that noted deficiencies must be remedied by your next observation which (sic) approximate date is 1-24-86. Failure to do so ... will have an adverse impact upon your employment. We will continue assisting you as we have in the past. Johnson was not, however, to be accorded any further observations. As events transpired, January 17, 1986, was his last day of employment at Silver Bluff Elementary School; thereafter, he was assigned to the South Central Area office pending School Board action. On February 19, 1986, the School Board suspended Johnson and initiated these dismissal proceedings. Johnson resists the School Board's suspension and proposed dismissal for incompetency on several grounds. First, he avers that Ms. Alemany harbored some animosity toward him because of his service as a United Teachers of Dade union representative. The proof fails to support such a finding. Second, Johnson avers that his request for an independent observation following Ms. Alemany's observation of November 20, 1985, should have been granted. While it may have been better practice to grant such a request, the School Board was bound to no such requirement. Finally, Johnson avers that the School Board's failure to accord him an independent observation following two unacceptable "summative observations" requires that his suspension and proposed dismissal for incompetence not be sustained. 3/ Johnson's final assertion is also without merit. While the proof established that the School Board routinely employed an independent observation following two unacceptable summatives before it recommended dismissal for incompetence, Johnson's removal from the classroom prevented further observation. Where, as here, the School Board removes a teacher from the classroom for cause, i.e.: battery upon a student, it is not thereby barred from seeking the suspension and dismissal of a teacher for incompetence even though an independent observation was not performed. While the School Board is not precluded from maintaining its charge of incompetence, it has failed to demonstrate that Johnson's unsatisfactory performance, observed on three occasions, deprived the students in his charge of a minimal educational experience, or that such performance failed to comply with the rules of the School Board or the terms of the parties' contract. Johnson's deficiencies, absent such proof do not demonstrate incompetence by reason of inefficiency. Further, the physical and verbal abuses Johnson was shown to have visited upon students, while improper, do not establish a lack of emotional stability. Therefore, the School Board also failed to demonstrate that Johnson was incompetent by reason of incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, George L. Johnson, from his employment, and dismissing Respondent, George L. Johnson, from his employment with the School Board. DONE AND ENTERED this 30th day of December, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1986.
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
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 issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Charles Willis (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a drama teacher employed by the Petitioner to work at BRHS pursuant to a professional services contract. During 2010, the Respondent had an account on Facebook, a social networking internet website. Facebook allows an individual user to create and maintain a personal "page" including text and photographs, which can be viewed by other users. Users can also provide links to content posted elsewhere on the internet, and viewers can access the linked information. Facebook allows users to establish privacy settings that restrict access to various types of content. Such privacy options include the identification of other Facebook users as "friends." Privacy settings can be established that prevent users from posting comments to content posted by a user, or from viewing comments posted by other users. Social networking websites are used by some teachers to communicate classroom assignments or other educational information to students. Social networking websites are widely used by students and, at least based on the testimony presented at the hearing, by parents and other adults as well. Prior to the allegations underlying this dispute, the Respondent's privacy settings permitted his Facebook "friends" to view all content posted by the Respondent. The Respondent had in excess of 100 BRHS students identified as friends on his Facebook account. At all times material to this case, the Petitioner had no policy, written or otherwise, that restricted an employee from having an account on a social networking website, or regulated the use of any social networking website by an employee. At various times during 2010, the Respondent posted remarks on his Facebook page that included certain acronyms. Such acronyms, and their commonly understood meaning, included the following: WTF (What the Fuck) OMFG (Oh My Fucking God) F'n (Fucking) LMAO (Laughing My Ass Off) ROTFLMFAO (Rolling On The Floor Laughing My Fucking Ass Off) At the hearing, the Respondent asserted that he intended the "F" in the above acronyms to be understood as "fricking." There was no credible evidence that any student or parent who read the Respondent's Facebook remarks understood the "F" to mean anything other than "fucking." On his Facebook page dated July 31, 2010, the Respondent posted a remark that stated "[I]t's not who you know, it's who you blow," in an apparently derogatory reference to the judging of a student competition. On his Facebook page dated March 30, 2010, the Respondent posted a photograph of a bumper sticker that read "[F]uck the man, become the man" that was taken by a student on a trip to New York. The Respondent explained his posting of the photo by claiming that the people on the trip had agreed that all photos taken on the trip would be posted without censorship and that he had posted several hundred trip photos onto Facebook. On his Facebook page dated August 7, 2010, the Respondent posted a photograph (titled "Accidental Porn") that he obtained from another Facebook user's page. The photograph displayed a television weatherman standing in front of a map showing an elongated weather system. Based on the location of the weatherman and the weather system, the image was perceived by some viewers as depicting the broadcaster holding his penis in a sexually-suggestive position. Comments on the Respondent's Facebook page made it apparent that his viewers were aware of the perception. On his Facebook page dated August 20, 2010, the Respondent posted a link to content titled "[I]t's a great day to whoop somebody's ass." On his Facebook page dated June 26, 2010, the Respondent, apparently intoxicated, posted remarks indicating that he'd consumed excessive alcohol one evening and then posted remarks on the next day indicating that he had a headache related to the consumption. Although the Respondent asserted that some of the posts referenced herein occurred during summer months when he was not "on contract" as a teacher, his students, past and future, were able to freely access the Respondent's Facebook pages during the summer. The Respondent also had an account on Formspring, another social networking internet website. Formspring presents user content in a "questions and answer" format. In an undated post to the Respondent's Formspring page, a student commented "[T]hanks for letting me skip your class today." The Respondent wrote in response, "[Y]ou're welcome, but now you owe me....LOL....just do an amazing job at the encore show." The Respondent acknowledged that he allowed the student to miss his class in order to attend a rehearsal. While the Respondent may have failed to comply with school attendance policy by permitting the student to miss class, the Petitioner's assertion that the posting created the impression of an inappropriate arrangement between a teacher and a student was not supported by credible evidence. In another undated post to the Respondent's Formspring page, an unidentified Formspring user asked "what happened with the whole UP dvd thing," apparently in reference to an incident wherein the Respondent played a movie in class. The Respondent replied, "I got areprimand [sic] for showing an unauthorized video and not following the counties [sic] video policy." The Petitioner's assertion that the Respondent's response was an inappropriate discussion of an employer/employee disciplinary matter with a student was not supported by credible evidence. The reprimand was public record. The identity of the person posting the question was unknown. Upon the initiation of this disciplinary action, the Respondent altered his privacy settings on the social networking sites to limit access of personal content to adults. There was no evidence that social networking internet websites cannot be used for appropriate educational purposes. On more than a few occasions, the Respondent was known in the classroom to use "spoonerisms" in speech, wherein letters in various words were deliberately switched to alter a verbalization of a phrase. While in class and in the presence of students, the Respondent used phrases such as "nucking futs" or "doggammit." The school received a complaint about the practice. On one occasion in the classroom, the Respondent referred to his former wife as a "bitch." On at least one occasion, the Respondent used a hand gesture in the presence of students to signify the word "bullshit." On April 30, 2010, the BRHS principal directed the Respondent to refrain from making such statements and gestures. There was no credible evidence that the Respondent continued to engage in such verbal or physical communication after the April 30, 2010, directive. At the start of the 2009-2010 school year, the Respondent approached the BRHS principal to inquire about organizing a theatre trip to New York for some of his drama students. The principal declined to authorize the travel as a school-sponsored event. The Respondent thereafter organized the trip on a private basis. Eight students expressed interest in going on the trip, and the trip ultimately occurred with a number of parents traveling as chaperones. At times, the Respondent discussed the proposed trip in his classes. The announcement of an organizational meeting occurred during class. The meeting was conducted on the school grounds at a time and place where play rehearsals were occurring, which had been previously arranged by the Respondent. There was no evidence that the Respondent mislead any participant to incorrectly presume that the trip was sponsored by the school. The participants in the trip were aware that the travel was not a school-sponsored event. There was no credible evidence that any participant or parent believed that the trip was a school-sanctioned event. The Respondent failed to comply with the school procedure for private use of the facility, which requires application and approval by school administration. Although execution of a facility lease may be required for larger groups, there was no evidence that such a lease would have been required for this meeting. There was no evidence that there was any adverse consequence to the Respondent's failure to seek permission to hold the organizational meeting in the previously-approved play rehearsal space. The time and location of the organizational meeting was not unreasonable, given the nature of the trip and the expected participants. Teachers who need to leave BRHS grounds during the workday are directed to obtain permission from a school administrator and then document the early departure in a log book maintained in the school office. The school administrators are the principal and the assistant principals, who are identified as such during formal meetings at the beginning of the school year. On September 2, 2010, the Respondent needed to go home on his lunch break and switch cars with his wife. The Respondent testified that he could not locate an administrator and that he thereafter went to the office of Bob McCabe, the BHRS "administrative parent liaison" and advised Mr. McCabe that the Respondent was leaving campus early. Mr. McCabe is not a school administrator and has no authority to approve a request to leave school grounds. Mr. McCabe works with parents and on student disciplinary matters. Mr. McCabe told the Respondent that he would tell the administrators, and the Respondent left the school. Mr. McCabe testified that shortly after the Respondent left, an assistant principal inquired as to whether the Respondent had left the grounds. Mr. McCabe also testified that the assistant principal had told him that she was present in her office at the time the Respondent claimed to be unable to find her, but the hearsay testimony was not otherwise corroborated. The evidence establishes that, had the Respondent requested to leave campus, the request would have most likely been granted, as such authorization, absent use of leave, was routinely granted by school administrators. There was no credible evidence that other teachers who have left school grounds without prior administrative approval have been subjected to discipline for the infraction. The Petitioner presented the expert testimony of Terry Osborn, dean of the University of South Florida College of Education, Sarasota-Manatee campus, who opined that some of the Respondent's social networking interactions could have had negative effects on the learning environment, could cause anxiety for some students, and potentially result in a loss of credibility by the educator. Mr. Osborne essentially based his opinion on very limited literature. There was no credible evidence that any of the adverse impacts identified by the witness has occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, dismissing the Administrative Complaint filed against Charles E. Willis. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2011. COPIES FURNISHED: Scott A. Martin, Esquire Manatee County School Board 215 Manatee Avenue West, Second Floor Bradenton, Florida 34205 Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Bradenton, Florida 34206-9069
Findings Of Fact Respondent, Magda R. Cenal (Cenal) has been employed by Petitioner, School Board of Dade County (School Board) as a music teacher for primary grades since 1972. On November 19, 1986, the School Board suspended Cenal from her position, and sought her dismissal for excessive absenteeism for the school years 1975-76 through 1985-86. Cenal contests the School Board's action, and contends that she has a right to job protection under her contract of employment when on approved leave and that all her absences were duly approved. The proof is uncontroverted that during the school years 1975-76 through 1985-86 Cenal was absent from her employment for protracted periods of time, and that such absences impaired her effectiveness in the school system and deprived her pupils of a minimum educational experience. The proof is also uncontroverted that Cenal was repeatedly directed to improve her attendance, but failed to do so. Resolution of this case is, however, dependent on whether Cenal's absences were consistent with the terms of her contract of employment (approved). If consistent, she is entitled to employment protection, and the impact of her absences is not relevant. Article XIV of the contract between the School Board and the United Teachers of Dade, prescribes the leaves of absence available to teachers employed by the School Board, as well as the accrual and use of sick leave. If an employee's absence is in accordance with the provisions of this contract it is deemed approved, and their employment rights are protected. In the instant case Cenal avers that all her absences were approved. The School Board concedes that at no time was Cenal absent without approved leave and, notably, did not contest the propriety of a single absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Magda R. Cenal, be reinstated with back pay, and all other benefits to which she is rightfully entitled. DONE and ENTERED this 25th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 25th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4804 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not necessary to result reached. 3-6. Addressed in paragraph 2-4. 7-10. To the extent relevant, addressed in paragraph 2. Mr. Renuart's evaluation of Respondent during the 1978-79 school year and his recommendation that she be dismissed was not acted upon by the School Board. Other than her absence record, there is no competent proof that she suffered any deficiencies noted by Mr. Renuart in subsequent years. 11-17. Addressed in paragraphs 2-4. 18-19. Addressed in paragraph 2. 20-22. Not necessary to result reached. 23-24. Addressed in paragraph 2. 25. Not supported by competent proof. 26-32. Addressed in paragraph 2. 33. Not necessary to result reached. 34-37. To the extent relevant, addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 2. Not necessary to result reached. Also see paragraphs 1-4 of recommended order. Respondent's proposed findings of fact are addressed as follows: To the extent relevant, addressed in paragraph 1. Respondent's absenteeism is addressed in paragraph 2. The interrogatories filed in this case are not, however, probative since they were not introduced into evidence. Addressed in paragraph 2. Addressed in paragraph 4. Addressed in paragraph 3. Addressed in paragraph 2. Also see the address to petitioner's proposed findings of fact 7-10. COPIES FURNISHED: Johnny Brown, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 William DuFresne, Esquire 2929 Southwest Third Avenue Suite C Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132
The Issue The issue presented for determination is whether the proposed high school attendance zone plan, Z2, is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: This rule challenge to a proposed rule is a result of proposed changes to school attendance zones in Seminole County, Florida, which would result in students attending different schools than they presently attend. Hagerty High School (Hagerty) is a newly constructed Seminole County school. The opening of this new high school in August 2005 was the catalyst for the county-wide rezoning. Incidental to rezoning to accomplish populating the new high school, adjustments in student populations were made in an attempt to create appropriately balanced racial and ethnic student populations and to alleviate school over-crowding. Since 1970, schools in Seminole County have been subject to the jurisdiction of the Federal government regarding desegregation of the public schools. This continuing jurisdiction is the subject of "Consent Decrees" between the United States of America and Respondent in Case No. 70-152, ORL CIV (M.D. Fla. August 19, 1975). In particular, adjustments in school attendance zones have been the subject of the scrutiny of the Federal government. Several members of the current School Board were on the School Board when a rezoning plan was rejected by the Federal government. Since early in the 1990's, the School Board and school administration have aggressively pursued the goal of a "unitary" school system, i.e., a system that has accomplished a myriad of goals which equate to a system wherein any student, regardless of race and ethnicity, has an equal opportunity for a quality education. Once the status of a "unitary school district" is accomplished, direct Federal supervision will cease. In 2002, preparing for the day when "unitary" status would be achieved, the School Board developed an extensive post-unitary status policy. The Parties Petitioner, Jennifer Finch, is the mother of Christopher Brady; she and Christopher reside in Seminole County, in the residential community known as Sable Point. Christopher is currently in the sixth grade. The Finch residence is in Cell 27A; a "cell" is a geographic area created by the Core Committee when it divided the county into numerically identified “cells” for purposes of considering rezoning alternatives. The Finch residence is currently zoned for Lake Brantley High School. As a result of the proposed rezoning, children (with the exception of "grandfathered in" children) residing in Cell 27A will be zoned to attend Lyman High School. Lake Brantley High School is "over-crowded." The facility is designed to accommodate 3,000 students; it has a current student population of approximately 3,650. Because of Lake Brantley High School's over-crowding, its principal regularly audits the student population, using unique and creative methods, in an effort to assure that each of the students attending Lake Brantley High School is zoned to attend Lake Brantley High School. Petitioner, SC. Read, Inc., is a Florida corporation. Members of SC. Read, Inc., live in Cell 27A, and several of its members have children who are currently enrolled in the public schools of Seminole County. Intervenor, Tuscawilla Home Owners’ Association, Inc., is a Florida corporation. Part of Cell 10, and all of Cell 11, are within the area of subdivisions represented by Intervenor. Intervenor has 2,109 member households; 734 member households are in Cells 10 and 11. The homes in Cells 10 and 11 are single-family residences with many children who attend Seminole County public schools. The proposed rezoning contemplates students living in Cells 10 and 11, who are not specifically "grandfathered in," attending Oviedo High School instead of Winter Springs High School where they are currently zoned. One of the specific functions of Intervenor is to engage in efforts to secure educational opportunities and a stable educational environment for its members. It has historically worked with the schools to provide increased educational and extracurricular activities for its constituent members. The School Board is the governmental entity responsible for the operation, supervision, and control of public schools in Seminole County, Florida, including establishing attendance zones, determining the educational capacity of schools and assigning students to schools. The Rezoning Process Rezoning is a thankless responsibility; whenever the lives of children are disrupted, parents are unhappy. Moving a student from one school to another, places unanticipated demands on both parents and students. In January 2000, the School Board adopted a policy entitled “Revision of School Attendance Zones” (hereinafter referred to as “Policy J”). Section III of Policy J, entitled Process for Revision, at Step One provides, in relevant part: The Board establishes a Core Committee including, but not limited to district representatives . . . , affected school administrators, a representative from the affected School Advisory Councils, and a PTA representative from the affected schools to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress . . . . The role of the Core Committee in the rezoning process is advisory. Its responsibilities, as enumerated in Policy J, are to serve as a conduit for public communication, receive demographic data, create "cells" to be considered in attendance zone shifts, consider public input, and create rezoning plans to be considered by the School Board. Policy J provides definitions of certain "words of art" used in the rezoning process, for example, "Over- enrolled/under-enrolled": an over-enrolled school has an enrollment that exceeds its permanent design capacity, and an under-enrolled school has an enrollment less than its design capacity -- both are identified on an annual basis, and "Design capacity": the permanent capacity of a school as calculated by the Department of Education. Portables are not included in the design capacity of a school. The calculation variables include class size, classroom program types, and scheduling. Based on appropriate definitions and criteria, Lake Brantley High School is "over-enrolled" and Lyman High School is "under-enrolled." In addition, Policy J specifies specific parameters that "current and proposed attendance zone plans will be measured against." The parameter having the highest priority according to this policy is: "[T]he plan is consistent with the district Consent Decrees as long as the decrees remain in effect." In April 2004, in anticipation of the August 2005 opening of Hagerty, the rezoning process was initiated. Because rezoning was county-wide and affected numerous schools, the Core Committee consisted of 54 people. The following schedule was established: Organizational Meeting June 15 Core Committee will identify "cells" Core Committee (CC) August 19 CC will use cell data to develop plan options Core Committee Sept. 2 CC will choose plans for public input Public Input Sept. 20 Lyman High 7:00 PM Public Input Sept. 23 Winter Springs High 7:00 PM Core Committee Sept. 30 CC uses public input to develop final drafts School Board Public Input Oct. 26 Educational Support Center 6:00 PM Final Adoption Nov. 9 This schedule outlined in paragraph 17, supra, was essentially followed. However, one meeting was cancelled and one shortened because of hurricanes. The Core Committee meetings, while they took place in public facilities, did not lend themselves to ongoing public input due to the nature of the work that was to be accomplished by the committee members. As would be expected, the committee members relied heavily on school administrators, Deputy Superintendent of Operations Dianne L. Kramer, in particular, who was the facilitator and contact between the committee and school administration, for information necessary for their consideration of student demographics, school populations, and other pertinent data for high schools and middle schools. Geographic enrollment numbers (all potential students living in a geographic area) were used, which is appropriate for rezoning planning. In addition to the information provided directly and electronically to the Core Committee members, which was more than adequate and conforming to Policy J requirements, the School Board made this information available to the interested public directly and electronically. Nothing in this record indicates that any Core Committee member was denied any needed information. Policy J charges the Core Committee with the responsibility "to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress." This was accomplished. Because the Core Committee is composed of members of the Parent-Teacher Associations and School Advisory Councils from each affected school, parents were involved and made aware of the Core Committee activities. The Core Committee and the School Board meetings were advertised as required. There was a great deal of public awareness of the rezoning process. For example, it was estimated that 1,600 people attended the two scheduled "public input" sessions, and the School Board meeting and workshop where the plans were presented took more than seven hours. At the conclusion of the Core Committee's consideration of many alternatives, some of which were submitted by the public, three rezoning plans were advanced by the committee. These plans were identified as W, Z, and Z1. Plan Z1 was a plan modified by Deputy Superintendent Kramer at the direction of the committee. These plans were then published on the School Board web-site and made available to the School Board members. Policy J and the Core Committee's stated involvement and participation in the "process for revision," was substantially complied with and any deviation from Policy J or the Core Committee's purpose was insignificant and did not negatively affect the rezoning process. On October 19, 2005, the School Board members took an informational bus trip during which they traveled proposed bus routes for the rezoning plan alternatives. The School Board members are generally familiar with routes to and from the various schools in Seminole County. Seminole County, like most of Central Florida, has experienced dynamic growth in the past decades. This growth has burdened the infrastructure of all communities. As a result, not only are new schools needed, but roads must be constructed and improved. Traffic congestion, whether occasioned by too many vehicles, new construction or for whatever reason, is a daily challenge to central Floridians. Regardless of the particular school a student attends, buses transporting students will be a part of the traffic with which all motorists, including the bus drivers, must contend. Student transportation is a consideration in rezoning, but is not significant or controlling. The School Board has a safety advisory committee whose membership includes police officials and traffic safety personnel from the various governmental entities in Seminole County. As safety or traffic issues arise, this committee provides recommendations regarding those issues. As the need arises, bus routes can be adjusted to accommodate optimum travel time and safety. Subsequent to the publication of the Core Committee Plans W, Z, and Z1, several of the School Board members approached Superintendent Bill Vogel and indicated that they did not feel that any of the Core Committee plans would be acceptable to the Federal government. The School Board members are regularly informed of student demographics, school populations, over/under-crowding, and myriad other statistics which help them make informed judgments in their roles as School Board members. On each school day, every Seminole County school electronically provides the School Board administration with data, including attendance information, to assist in school governance. During the rezoning process, each School Board member was provided timely updates on the Core Committee's activities and had numerous contacts with the general public regarding concerns associated with rezoning. Perhaps, the School Board members who had previously seen a rezoning plan rejected by the Federal government were overly concerned; perhaps, in order to achieve "unitary" status, they wanted to see racial and ethnic ratios adjusted to meet county averages; or perhaps, they were concerned about under/over-crowding. For whatever reason, the School Board members directed Superintendent Vogel to create additional rezoning plans which would address over-crowding at Lake Brantley High School and student enrollment at Lyman High School that included disproportionately high percentages of students qualifying for free or reduced-price lunches. As a result, Superintendent Vogel directed Deputy Superintendent Kramer to prepare modified plans addressing the deficiencies in Plans W, Z, and Z1: that enrollment at Lake Brantley High School had not been reduced in the plans presented by the Core Committee to the extent that it needed to be and that the percentage of students receiving free and reduced-price lunches at Lyman High School was too high in each of the plans presented by the Core Committee. In addition, Superintendent Vogel believed a greater number of the district's high schools could be closer in enrollment percentages to the county-wide averages for black students, Hispanic students, and students receiving free and reduced-price lunches. This planning direction is one of the fundamental considerations of Policy J. Using essentially the same data and cells identified by the Core Committee, Deputy Superintendent Kramer developed Plans Z2 and Z3 in response to the Superintendent's directive. Plan Z2 incorporates the essential components of the plans advanced by the Core Committee with modification of the attendance zones for specific cells. The primary modification in Plan Z2 is moving Cell 27A from the Lake Brantley High School attendance zone to the Lyman High School attendance zone. Cells 10 and 11, which are included in the Intervenor's area of interest, were recommended for transfer from Winter Springs High School in Plan Z as well as Plans Z1 and Z2. Plans Z1 and Z2 were forwarded to the School Board and the Core Committee members electronically upon development. On October 26, 2004, after being appropriately advertised, all five rezoning plan alternatives were presented at an eight-hour public meeting of the School Board held at the School Board's administration building, at which time the public addressed the School Board on the subject rezoning plans. At the close of the public input, Superintendent Vogel recommended Plan Z2 to the School Board. During the presentation in which Plan Z2 was recommended, Superintendent Vogel presented an assessment of each of the five rezoning plan alternatives and how each impacted each Seminole County high school, including the new high school, Hagerty. This assessment included the current student enrollment, with black students, Hispanic students, and students receiving free or reduced-price lunches noted by percentage, current numeric enrollment, and target numeric enrollment. The assessment specifically addressed the effect of each rezoning plan alternative on these critical areas and demonstrated how each plan alternative measured against each critical area. Superintendent Vogel's recommendation reflects consideration of the criteria and process outlined in Policy J, as well as considerations fundamental to the basic objectives articulated by the School Board's commitment to becoming a "unified" school district. Members of the School Board were not bound by Superintendent Vogel's assessment; each had a worksheet by which each individual School Board member could render his or her own assessment. In addition, several of the School Board members had over 14 years of Board experience being first elected in 1990. These experienced members had participated in previous rezonings and had a wealth of experience and knowledge of critical information needed to make informed decisions with or without Superintendent Vogel's assessment of the various plans. The totality of the evidence presented revealed that each of the School Board members was well-informed on all significant data needed to make an informed decision. At the close of the October 26, 2004, meeting, the School Board unanimously voted to accept Superintendent Vogel's recommendation of Plan Z2 with certain modifications.
The Issue The issue for determination is whether Respondent should be suspended, without pay, and terminated from all employment with Petitioner for the offenses set forth in the Notice of Specific Charges.
Findings Of Fact No dispute exists that, at all times material hereto, Ms. Hankerson was an instructional employee with the School Board. Ms. Hankerson has been a teacher with the School Board for 11 years, beginning as a teacher with the School Board in 2000. She was first assigned to Renick Education Center. Subsequently, Ms. Hankerson was transferred to Barbara Goleman High School (Goleman) in Miami Lakes, Florida. During the 2009-2010 school year, she taught science to exceptional student education (ESE) students at Goleman. At the beginning of the 2010-2011 school year, Ms. Hankerson was advised that her department was being eliminated and that she needed to find another school at which to work if she desired to continue her employment with the School Board. She sought other schools and received an email from Howard McMillan Middle School (McMillan) to come for an interview. She accepted a teaching position at McMillan, effective September 20, 2010. While working at Goleman in Miami Lakes, Florida, Ms. Hankerson resided in Miami Shores, Florida. Her residence was in close proximity to Goleman. She had three children and was able to get her children to school and report to Goleman in a timely manner throughout her tenure at Goleman. Ms. Hankerson's travel time to McMillan was significantly greater than to Goleman due to McMillan being located further south than Goleman.2 During the 2010-2011 school year, all teachers at McMillan were required to report to work at 8:30 a.m. Professional meetings, which consisted of team meetings and department meetings, were held from 8:30 a.m. until 9:00 a.m. Team meetings were held three days a week. Department meetings were held two days a week, where teachers meet by department to discuss curricular activities and requirements. Faculty meetings were held every other Tuesdays, and, when faculty meetings occurred, no professional meetings were held because the faculty meetings replaced the professional meetings. At 9:00 a.m., teachers went to their respective classroom to meet their students, who began arriving at 9:00 a.m. Instruction began at 9:10 a.m., with homeroom followed by advisement, where the Comprehensive Research Reading Plan was implemented, and ended at 9:46 a.m. First period began at 9:56 a.m. School ended at 3:50 p.m. Ms. Hankerson was assigned a homeroom class. The students in her classroom consisted of eighth grade students, who were not performing at grade level in reading and were FCAT Level 1 students in reading. Ms. Hankerson's first period (Period 1) was a seventh grade civics class. Her students consisted of ESE students, with varying exceptionalities. She was the sole teacher. Ms. Hankerson was a co-teacher for four periods of the remaining school day, teaching science. The students for the four periods consisted of general education students and ESE students. Ms. Hankerson was the ESE teacher, and the other teacher was the general education teacher, who generally took the lead in the classroom. The second period (Period 2) was a seventh grade science class; the third period (Period 3) was an eighth grade science class; the fourth period (Period 4) was a sixth grade science class; and the sixth period (Period 6) was a seventh grade science class. Her fifth period (Period 5) was a planning period. No dispute exists that Ms. Hankerson's employment with the School Board is subject to, among other things, a professional service contract, a collective bargaining agreement (Agreement) between the School Board and the United Teachers of Dade (UTD), and policies and procedures of the School Board. School Board Policy and the Agreement provide teachers with one sick day of leave every month. At the beginning of each school year, each teacher is given, up front, four days of sick leave that the teacher can use. However, the accrual of sick leave is one sick leave day per month for the ten-month period that a teacher is employed with the School Board, totaling ten sick days of leave. During the ten-month period, if a teacher takes leave exceeding the ten days and does not have leave that is "banked," which is leave that is carried over from one school year to the next, it results in leave without pay, unauthorized. In a medical situation, if a teacher knows that he or she will be absent for an extended period of time, the teacher would apply for leave. If the absence will be over 30 days, the teacher would apply for medical leave and can use leave that is banked. However, if no leave is banked, it results in leave without pay, unauthorized. If a teacher is going to be absent from work, the teacher is required to call into a dedicated-absence telephone line at least one hour before the start of the workday. On the day that the teacher is absent, the teacher is also required to call his or her school 30 minutes prior to the scheduled student dismissal time, indicating whether he or she will report to work on the next workday in order for the school to make arrangements for a substitute teacher. A teacher, who is absent without prior approval, is deemed to have been willfully absent without leave, except in a situation of sudden illness or an emergency situation. Immediately upon beginning at McMillan, Ms. Hankerson began arriving late and using her sick days. Eight days after beginning at McMillan, on September 28, 2010, she took a sick leave day; on October 1, 2010, she took one day of leave without pay, unauthorized; and on October 13 and 19, 2010, she took one sick leave day and one-half sick leave day, respectively. On October 21, 2010, while she was at McMillan, allegations, unrelated to the instant case, involving inappropriate conduct and remarks were made against Ms. Hankerson. Effective October 22, 2010, she was removed from McMillan and placed at the School Board's Region office, pending an investigation. A substitute teacher was hired to take over Ms. Hankerson's classes. The allegations were referred for investigation to the School Board's Civilian Investigative Unit. Ms. Hankerson was assigned to the Region office from October 22, 2010, through February 22, 2011. While at the Region office, Ms. Hankerson continued her pattern of absences. Between October 22, 2010, and February 22, 2011, she accumulated an additional 18 days of absences: five and one-half days of leave without pay, unauthorized; seven days of leave without pay, authorized; and five and one-half days of sick leave. The investigation into the allegations was concluded. At a Conference-For-The-Record (CFR) held by the School Board's Office of Professional Standards (OPS) on November 29, 2010, memorialized in a Summary of CFR dated December 3, 2010, Ms. Handerson was advised that probable cause existed for violations of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. At the CFR, the OPS provided her with a copy of the School Board rules; The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; and a document titled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." Additionally, the OPS issued her directives, including adhere to all the School Board's rules and regulations; and comport, both at the workplace and in the community, in a manner that reflects credit upon herself and the School Board. By letter dated February 10, 2011, Ms. Hankerson was notified that the School Board had taken action, at its meeting on February 9, 2011, to suspend her without pay for five workdays from February 10, 2011, through February 16, 2011. Further, the letter notified her to report to work at McMillan on February 17, 2011. However, Ms. Hankerson did not serve the suspension from February 10, 2011, through February 16, 2011. The suspension was rescheduled to February 22 through 28, 2011, with her return to McMillan on March 1, 2011. Having served her suspension on February 22 through 28, 2011, Ms. Hankerson failed to return to McMillan on March 1, 2011. Moreover, she failed to call the dedicated absence telephone line at McMillan, the Absence Reporting System (ARS), one hour prior to the workday on March 1, 2011, to state that she would not report to work that day; and failed to call 30 minutes before the scheduled student dismissal on March 1, 2011, to state whether she would report to work on March 2, 2011. On March 2, 2011, Ms. Hankerson reported to McMillan for work and, also, reported ten minutes late, at 8:40 a.m. That same morning, McMillan's principal, Hilca Thomas, met with Ms. Hankerson and advised her that she (Ms. Hankerson) was required to report to work on March 1, 2011, not March 2, 2011; and that March 1, 2011, would be reported as leave without pay, unauthorized. Ms. Hankerson blamed the arrival on March 2, 2011, instead of March 1, 2011, on a miscommunication between her and the UTD representative. Further, Ms. Thomas reminded Ms. Hankerson of the hours of work and the attendance procedures, including communicating absences using the ARS. Ms. Hankerson stated that she would "not make it in at 8:30"; that she would "be late almost every morning because of [her] children and [she] live[s] far [away]"; and that being late was "unavoidable." Additionally, Ms. Thomas advised Ms. Hankerson that her (Ms. Hankerson's) undergarment was exposed and that she was not wearing appropriate attire. Ms. Hankerson abruptly left Ms. Thomas' office stating that she was going to UTD's office downtown. Shortly thereafter, around 9:15 a.m., Ms. Henderson returned to Ms. Thomas' office, but a substitute teacher was already deployed to Ms. Hankerson's classroom. As a result, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) could leave for the day and directed Ms. Hankerson to report back to McMillan for work on March 3, 2011. The events on March 2, 2011, were memorialized in a memorandum from Ms. Thomas to Ms. Hankerson on that same date. Ms. Hankerson acknowledged receiving a copy of the memorandum. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas to report to work at 8:30 a.m. and to follow the procedures for absences were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson failed to report to work at McMillan on March 3, 2011. Also, she failed to report to work on March 4, 2011. Both days were reported as leave without pay, unauthorized. Ms. Hankerson reported to work at McMillan on March 7, 2011, the next school day, at which time she was issued an Absence from Worksite Directive by Ms. Thomas. The Absence from Worksite Directive advised Ms. Hankerson, among other things, that attendance and punctuality were essential functions of her job and that, since September 20, 2010, she had accumulated 25.5 absences.3 The absences were reflected as four absences within her first month at McMillan (September 20 through October 22, 2010); 17.5 absences when she was assigned to the Region office during the investigation; and four absences when she was to report back to McMillan between March 1 and 4, 2011. Additionally, the Absence from Worksite Directive instructed Ms. Hankerson on the proper procedures to obtain authorized leave of absence. She had failed to avail herself of the proper procedures to obtain authorized leave of absence. Further, the Absence from Worksite Directive advised Ms. Hankerson that her noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. On March 7, 2011, Ms. Hankerson acknowledged receiving the Absence from Worksite Directive by signing the document. The evidence demonstrates that the directives issued to Ms. Hankerson by Ms. Thomas in the Absence from Worksite Directive were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to issue the directives. Ms. Hankerson failed to abide by and comply with the directives. On March 10, 2011, three days after receiving the Absence from Worksite Directive, Ms. Hankerson arrived at McMillan late, 9:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and reminded her (Ms. Hankerson) of the directives. Additionally, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) was inappropriately dressed. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On March 11, 2011, Ms. Hankerson arrived at McMillan late, 8:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and advised her (Ms. Hankerson) that, because she (Ms. Hankerson) had failed to call-in to the ARS, a substitute had been hired for the day. Ms. Thompson reported the absence as one day leave without pay, unauthorized. On March 21, 2011, Ms. Hankerson failed to report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on March 22, 2011, and, as a result, Ms. Thomas hired a substitute for March 22, 2011. Ms. Thomas met with Ms. Hankerson on March 22, 2011, and reviewed the absence with her (Ms. Hankerson); reported Ms. Hankerson's absence as unauthorized; and advised Ms. Hankerson that a substitute was hired for the day. Ms. Thompson reported each absence as one-day leave without pay, unauthorized. On March 29, 2011, Ms. Hankerson left McMillan approximately an hour early, at 2:45 p.m., without prior approval and without signing-out. Also, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, March 30, 2011, Ms. Hankerson did not report to McMillan. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, March 31, 2011, Ms. Hankerson left McMillan approximately 30 minutes early, at 3:20 p.m., without prior approval and without signing-out. Additionally, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, April 1, 2011, Ms. Hankerson left McMillan at 12:30 p.m., without prior approval and without signing-out. Also, she failed to attend her classes at Periods 4 and 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On April 4, 2011, Ms. Hankerson left McMillan at 10:47 a.m., without prior approval and without signing-out. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, April 5, 2011, Ms. Hankerson arrived at McMillan a little over one-half hour late, at 9:03 a.m. Ms. Thomas met with Ms. Hankerson, regarding the attendance, and informed her (Ms. Hankerson's) that the early departures from McMillan would be reported as leave without pay, unauthorized. Further, Ms. Thomas provided Ms. Hankerson with notification of a CFR to be held on April 8, 2011. The next day, April 6, 2011, Ms. Hankerson did not report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on April 7, 2011, and, as a result, Ms. Thomas hired a substitute for April 7, 2011. The CFR on April 8, 2011, was scheduled for 3:00 p.m. Even though Ms. Hankerson had reported to McMillan for the workday, she did not appear at the CFR at the scheduled time. When an "all call" was made over the public address system for her at 3:20 p.m., Ms. Hankerson responded and was informed that should report to the CFR. However, she did not arrive at the CFR until 3:49 p.m. and informed Ms. Thomas, among other things, that the CFR should proceed without her (Ms. Hankerson) because her (Ms. Hankerson's) children were home alone and she (Ms. Hankerson) was leaving at 3:50 p.m., the end of the workday. Ms. Hankerson left, and the CFR proceeded without her. The attendees at the CFR included Ms. Thomas; the assistant principal; and the UTD Representative. The purpose of the CFR was to address Ms. Hankerson's insubordination regarding previously issued attendance directives, and her noncompliance to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13- 4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; and to review her record and future employment status with the School Board. A Summary of the CFR was prepared by Ms. Thomas on April 18, 2011. The Summary for the CFR included a delineation of Ms. Hankerson's absences, reflecting that, since the issuance of the Absence of Worksite Directive on March 7, 2011, through April 15, 2011, Ms. Hankerson had accumulated one-half day absence of leave without pay, authorized; 10.5 days absence of leave without pay, unauthorized; one temporary duty day; and one personal day.4 Furthermore, the Summary for the CFR reflected that, as of April 15, 2011, for the 2010-2011 school year, Ms. Hankerson had accumulated a total of 46 absences.5 The Summary for the CFR contained directives to Ms. Hankerson. The directives included: adherence to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13-4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; to report to work and depart from work daily at the scheduled hours; be in regular attendance at the worksite and on time; adhere to attendance directives previously issued; communicate any intent to be absent directly to the principal and by calling the ARS; the reporting of future absences will be leave without pay, unauthorized, unless documentation showing qualification under the Family Medical Leave Act (FMLA) or other leave of absence is provided; and for imminent absences, leave must be requested and procedures for School Board approved leave implemented, and the FMLA or Americans with Disabilities Act (ADA) requirements, if applicable, must be complied with. Ms. Hankerson was advised that failure to comply with the directives would lead to further review for disciplinary action and would be considered gross insubordination. Further, the Summary for the CFR advised Ms. Hankerson that she would be issued a letter of reprimand. Ms. Hankerson acknowledged receipt of the Summary for the CFR on April 18, 2011, by signing the Summary for the CFR. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas at the CFR and the Summary for the CFR were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. On April 18, 2011, Ms. Thomas issued Ms. Hankerson a Reprimand. The Reprimand was based on Ms. Hankerson's failure to comply with the previous directive issued to Ms. Hankerson regarding attendance and professional responsibilities. Additionally, the Reprimand advised Ms. Hankerson that any recurrence of the noncompliance might lead to disciplinary action and would be considered gross insubordination. Ms. Hankerson acknowledged receipt of the Reprimand on April 18, 2011, by signing the Reprimand. Ms. Hankerson failed to comply with the directives issued in the Summary for the CFR. On the same day of the Reprimand, April 18, 2011, Ms. Hankerson was absent one-half day, reported as leave without pay, unauthorized. Two days thereafter, she was absent for three consecutive days, April 20 through 22, 2011, each day being reported as leave without pay, unauthorized. Having worked the next school day, April 25, 2011, Ms. Hankerson was absent one-half day on April 26, 2011, reported as leave without pay, unauthorized; absent one-half day on April 27, 2011, reported as leave without pay, unauthorized; and absent one day on April 28, 2011, reported as leave without pay, unauthorized. Additionally, she was tardy for work on April 27, 2011. From April 18 through 28, 2011, she had a total of five and one-half absences. Due to these recent absences and tardiness, on April 28, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences and tardiness were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be absent, tardy, and insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on April 18, 2011, by signing it. The evidence demonstrates that the re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson's absences, tardiness, and early departures continued. On May 2 through 4, 2011, she was absent one day each date; May 5, 6, and 13, 2011, she was absent one- half day each date; and May 16, 2011, she was absent one day; totaling five and one-half days of absences, which were reported as leave without pay, unauthorized. Also, Ms. Hankerson was tardy seven times, on May 5, 6, 10 through 13, and 17, 2011, which were unauthorized. Additionally, she departed McMillan early two times, on May 6 and 13, 2011, which were unauthorized. Due to these recent absences, tardiness, and early departures, on May 17, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences, tardiness, and early departures were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on May 17, 2011, by signing it. The evidence demonstrates that the second re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. At the time of the Continued Failure to Comply with Re-Issued Directives memorandum on May 17, 2011, Ms. Hankerson had accumulated 57 absences. Additionally, she had multiple instances of tardiness and early departures. A CFR was held by OPS. Persons in attendance included the Director of OPS; Ms. Thomas; and Ms. Hankerson and her UTD Representative. At the CFR, Ms. Hankerson was provided an opportunity to respond. OPS recommended termination of Ms. Hankerson's employment for gross insubordination and violation of School Board's rules concerning Responsibilities and Duties, Code of Ethics, and Absences and Leaves. After the CFR at OPS, Ms. Hankerson reported for work at McMillan only on June 7, 2011, and June 9, 2011, which was the last day of the 2010-2011 school year. On June 9, 2011, she arrived late, signed-in, and left McMillan shortly thereafter, not remaining at work the entire time set-aside for the last day. From the time that she began at McMillan until the time of the recommendation by OPS, Ms. Hankerson had accumulated 57 absences during the 2010-2011 school year. Of the 57 absences, 18.5 absences occurred during the time that she was assigned to the Region office, not in the classroom. Ms. Hankerson's absences and tardiness negatively impacted the role of Ms. Thomas as the principal and leader of McMillan. Often times, due to Ms. Hankerson's tardiness, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until Ms. Hankerson arrived. Additionally, when Ms. Thomas had no notice that Ms. Hankerson would be absent, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class until a substitute, who had to contacted at the last minute because of no prior notice, arrived; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until the substitute arrived. As a result of the recommendation of OPS, the Superintendent recommended to the School Board the suspension, without pay, and termination of the employment of Ms. Hankerson. At its regularly scheduled meeting held on June 15, 2011, the School Board took action to suspend, without pay, Ms. Hankerson and initiate dismissal proceedings against her from all employment for just cause, including, but not limited to: misconduct in office; gross insubordination; attendance-to-date; and violation of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A-1.213, Code of Ethics, and 6Gx13-4E-1.01, Absences and Leaves. Ms. Hankerson does not refute the absences, the tardiness, or the early departures. For the instances of tardiness, Ms. Hankerson testified at hearing that she would call-in before 8:30 a.m. and state that she was en-route and would be late. The School Board did not refute her assertion. Despite her calling-in, Ms. Hankerson admitted that Ms. Thomas did not tolerate her (Ms. Hankerson's) tardiness and took the action previously mentioned. Ms. Hankerson's testimony is found to be credible. On March 2, 2011, Ms. Hankerson informed Ms. Thomas that arriving late for work at McMillan was unavoidable because she (Ms. Hankerson) took her (Ms. Hankerson's) children to school and she (Ms. Hankerson) lived so far away from McMillan. Additionally, around April 2011, Ms. Hankerson informed Ms. Thomas that she (Ms. Hankerson) was going through a divorce. At hearing, Ms. Hankerson testified that, during March, April, May, and June 2011, she was having marital problems and living sometimes at home and sometimes with her mother in Fort Lauderdale, Florida, which was approximately 28 miles from McMillan. Ms. Hankerson took her children to school, but, when she lived with her mother, she would not leave them at their school in the mornings alone if it was dark. She testified further that she was being investigated by the Department of Children and Families regarding allegations of neglect and being an unfit mother. Additionally, she testified that she was having financial problems. Ms. Hankerson's testimony is found to be credible. However, she did not provide these details to Ms. Thomas. Further, Ms. Hankerson testified that, for April, May, and June 2011, she considered taking leave using the FMLA and contacted her UTD Representative. Ms. Hankerson decided not to take leave using the FMLA. The UTD Representative did not testify at the hearing. Ms. Hankerson's testimony is found to be credible. Again, Ms. Hankerson did not provide this detail to Ms. Thomas. Ms. Hankerson testified that the circumstances that she indicated caused her absences, tardiness, and early departures have been resolved. Her testimony is found to be credible. Before working at McMillan on September 20, 2010, Ms. Hankerson had no prior disciplinary action taken against her by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Lavonda Hankerson, without pay, for the 2011-2012 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 7th day of November, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2011.
