The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are 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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 15th day of January, 2015.
The Issue The central issue in case no. 88-2368 is whether Respondent should be suspended for thirty workdays due to misconduct in office. The central issue in case no. 88-3315 is whether Respondent should be dismissed from employment due to misconduct in office, gross insubordination, and incompetency.
Findings Of Fact COPIES FURNISHED: Marlene Rodriguez 16333 Wood Walk Miami Lakes, Florida 33014 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Recommendation Based on the foregoing, it is RECOMMENDED: With regard to case no. 88-2368, that the School Board of Dade County enter a final order affirming the administrative decision to suspend Respondent for a thirty workday period for misconduct in office. With regard to case no. 88-3315, that the School Board of Dade County enter a final order affirming the administrative decision to dismiss Respondent from employment for misconduct in office, incompetence, and gross insubordination. DONE and RECOMMENDED this 1st day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2368, 88-3315 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the exception of George C. Clark, Mr. Clark's testimony was offered by deposition. Paragraph 2 is accepted. Paragraphs 3-4 are accepted. Paragraph 5 is rejected as a recitation of testimony, not specific facts adduced by such testimony; some of the recitation being without basis. It is found that Respondent did not follow school policies regarding the discipline administered to students, that Respondent was aware of the correct procedures, and that Respondent continuously had trouble regarding classroom management. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted but is unnecessary to the conclusions reached in this cause. Paragraph 10 is accepted not for the truth of the matters asserted therein but as a indication of the student-teacher relationship between Respondent and one of the students she taught. Paragraphs 11, 12, and 13 are accepted. Paragraph 14 is accepted not for the truth of the matters asserted therein but see p.9 above. Paragraph 15 is accepted. Paragraph 16 is accepted not for the truth of the matters asserted therein but see p.9 above as it relates to the hearsay contents of the letter. Other portions of the paragraph which conclude respondent knew discipline procedures but did not follow them, or knew notice policies but did not follow them are accepted. Paragraphs 17 and 18 are accepted. Paragraphs 19,20,21, and 22 are accepted only to the extent addressed in findings of fact, paragraphs 7,8,9, and 10; otherwise, the proposed findings are rejected as contrary to the weight of the evidence or unsupported by admissible evidence. Paragraphs 23, 24, and 25 are accepted. With regard to paragraph 26, the first two sentences are accepted, the balance is rejected as hearsay or unsupported by the record in this cause. Paragraphs 27, 29, and 30 are accepted. (Petitioner did not submit a paragraph 28) In the future, proposed findings submitted which do not conform to the rules of the Florida Administrative Code will be summarily rejected. Petitioner is cautioned to review applicable rules, and to cite appropriately. RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the clarification that Clark's testimony was offered by deposition. Paragraph 2 is accepted. With regard to paragraph 3, according to the evidence in this case, Repodent taught at Miami Gardens Elementary School (Leon was her principal there) and North Carol City Elementary School (Sawyer and Brown were her principals there). Other schools may have been assigned during her periods of "special assignment" but the record is insufficient to establish Respondent's performance while on such assignments. The record is insufficient to make the legal conclusion addressed in paragraph 4, consequently, it is rejected. The Board addressed a recommendation to terminate Respondent's employment; however, the record does not establish final action was taken. The facts alleged in paragraph 5 are too voluminous to address in one paragraph. Petitioner's continued use of a recitation of the testimony does not constitute findings of fact. Pertinent to this case are the following facts adduced from Petitioner's paragraph 5: that Respondent's overall performance was unacceptable, that Respondent failed to direct students who were off task, that Respondent made an excessive number of referrals for discipline, and that the atmosphere in Respondent's class was not conducive to learning. With the exception of the last sentence in paragraph 6, it is accepted. The last sentence is rejected as contrary to the weight of the evidence. See finding made regarding paragraph 5, case no. 88-2368. Paragraph 8 is rejected as contrary to the specific evidence presented. Paragraph 9 is accepted. Paragraphs 10-14 are accepted. Paragraph 15 is rejected with the exception of the last sentence; the time sequence referred to is not specified in the record. The record does establish, however, that Respondent did not make progress in correcting noted areas of deficiency. Paragraphs 16 and 17 are accepted. Petitioner's proposed findings of fact have duplicate numbers for the following paragraphs: 15,16, and 17. The second set of these paragraphs are addressed below. Second paragraph 15 accepted not for the truth of the matters asserted but as an indication of the teacher-student relationship between Respondent and her student. Second paragraph 16 is accepted. Second paragraph 17 is accepted. Paragraph 18 is accepted. Paragraphs 19-22 are accepted.
The Issue Whether Respondent, Mark Ostermeier, violated Sections 1012.795(1)(c), (1)(g), and/or (1)(j), Florida Statutes (2011), and/or Florida Administrative Code Rule 6A-10.081(3)(a), as alleged by the Administrative Complaint dated October 14, 2014; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Pam Stewart, as Commissioner of Education, on behalf of the Florida Educational Practices Commission, is authorized by Florida law to investigate and prosecute cases against teachers with Florida teaching certificates. See §§ 1012.315, 1012.795, and 1012.796, Fla. Stat. Respondent, Mark A. Ostermeier (Respondent), holds a Florida educator’s certificate, Certificate No. 662488, covering the subject area of art, grades kindergarten through 12. Respondent’s teaching certificate is valid through June 30, 2016. At all times material to the allegations of this case, Respondent was employed by the Brevard County School District (District) and worked as an art teacher at the high school and elementary school levels. Except for the school year ending 2002, the District issued acceptable evaluations to Respondent. From the time Respondent was assigned to Bayside High School (Bayside) until the 2008/2009 school year Respondent received acceptable evaluations. For the school years 2008/2009 and 2009/2010 Respondent was assigned to Bayside. The principal at Bayside during the relevant time span was Robin Novelli. While at Bayside, Respondent was responsible for instructing students in grades 9 through 12 in the area of art. During the 2008/2009 school year, Mr. Novelli became concerned regarding Respondent’s classroom management, planning, and instruction. Although he signed off on the evaluation for that year (performed by another school administrator), Mr. Novelli decided he would assume the role of evaluator for Respondent for the following school year. Before 2008/2009, Respondent received acceptable evaluations. The principal at Bayside during those years was John Tuttle, who signed off on all of Respondent’s evaluations, but did not personally evaluate Respondent. Mr. Tuttle believed Respondent to be a competent instructor. In May 2009, Respondent exhibited unacceptable behavior and Mr. Novelli received complaints from a parent and student that Respondent had refused to return the student’s artwork. The student withdrew or did not re-enroll in Respondent’s art class, and Respondent took one of the student’s paintings to his home. When the student and parent demanded the return of the painting, Respondent refused to return it. When Mr. Novelli intervened, Respondent relented and eventually returned the student’s painting. The student believed Respondent was refusing to return the painting in an effort to get the student to re-enroll in Respondent’s class. Respondent denied the allegation but did not have a valid reason for not returning the student’s art. Bayside did not have an advanced placement (AP) art program. Respondent was desirous of establishing such a program and sought to do so. One of the activities that would enhance an AP art program was a field trip Respondent proposed for students to attend a National Portfolio Day conference. Respondent attempted to pitch the field trip for his art students, but did not follow directives in order to get the trip approved. Mr. Novelli did not approve the trip. Respondent did not have art students who met the requisite level of proficiency to warrant an AP level class. Nevertheless, Respondent continued to fuel the students’ desire to attend the conference. When Respondent failed to meet the prerequisite criteria to have the field trip approved, he blamed Mr. Novelli. In October 2009, Mr. Novelli observed Respondent and gave him an interim evaluation that marked him as overall unsatisfactory. Five categories were unsatisfactory and one category needed improvement. Thereafter, Mr. Novelli gave Respondent prescriptive plans for improvement. The Professional Development Assistance Plans (PDAPs) itemized what Respondent needed to do to improve his performance. The plans provided specific strategies and acts for Respondent to do to improve. Respondent did not follow the PDAP. Trying to communicate with Respondent proved difficult, as his interpretation of what was needed to improve differed from the directives of the PDAP. Respondent did not improve, and it became Mr. Novelli’s opinion that students in Respondent’s art classes had been deprived a minimum educational experience. Mr. Novelli’s expectations of Respondent were based upon his years as a trained administrator to evaluate teachers in all courses. Because Respondent continued to provide deficient classroom management, planning, and instruction, Mr. Novelli evaluated Respondent as unsatisfactory. As the end of the school year approached, Respondent’s performance did not improve to any significant degree. Rather than continue at Bayside, Respondent’s union representative, acting on his behalf, sought a transfer for Respondent to another school. That transfer was granted by the District. Respondent made several false accusations against Mr. Novelli and/or other school administrators. At one time or another Respondent stated he had been recorded with a USB recording pen; had been falsely arrested because of a false claim made by a District employee; had been poisoned due to an environmental hazard that Respondent was forced to endure; lost a child because of District treatment; and had his car vandalized by a school administrator. None of the accusations were accurate. Respondent started the 2010/2011 school year with a PDAP at Lockmar Elementary School (Lockmar). While at Lockmar, Respondent was supervised by the principal, Ms. Hostetler. Respondent respected Ms. Hostetler and acknowledged she had worked to assist him. Nevertheless, despite her efforts to give Respondent constructive help to meet the criteria and to improve deficiencies, Ms. Hostetler evaluated Respondent as unsatisfactory. The issues with planning, classroom management, and ability to provide effective instruction to students continued. In October 2010, Ms. Hostetler gave Respondent an interim evaluation that scored him as unsatisfactory in four categories and needs improvement in one. Ms. Hostetler noted that (as in the past) Respondent failed to have adequate lesson plans, failed to provide meaningful instructions to students in an organized, efficient manner, and failed to manage his classroom to assure that all students were appropriately engaged in the lesson. Additionally, Ms. Hostetler noted that Respondent did not have his classroom ready for instruction when students arrived for class and did not timely release the students back to their teachers at the conclusion of the art session. This was a problem because the classroom teachers were delayed or inconvenienced by Respondent’s behavior. Despite counseling for this issue, Respondent’s deficiencies at the beginning and conclusion of class continued. It came to Ms. Hostetler’s attention that Respondent was sending disruptive students outside his classroom to “look for dinosaurs.” His belief that this technique for behavior management was acceptable was erroneous. Ms. Hostetler did not approve the practice and opined that it placed students at risk. Respondent did not accept Ms. Hostetler’s authority as definitive on the issue. Respondent maintained that his technique was an acceptable strategy that should have been allowed. Ms. Hostetler next evaluated Respondent in February of 2011. Noting little improvement, the February evaluation found the Respondent’s teaching practices remained unsatisfactory. Respondent failed to use 21st Century equipment as Ms. Hostetler had requested. Additionally, he did not use art materials appropriately, did not control the classroom, and did not differentiate course work by age and grade. Nevertheless, Ms. Hostetler gave Respondent more time to improve and again issued a PDAP that was designed to give Respondent specific directives. At the conclusion of the school year, Ms. Hostetler evaluated Respondent’s performance as unsatisfactory. He was given a contract for the following school year in error. The District eventually caught the mistake and notified Respondent that his employment with the schools would be terminated. Subsequent to a two-day administrative hearing, the DOAH Administrative Law Judge issued a Recommended Order that found the District’s action was supported by the weight of the evidence presented. Respondent’s teaching was unacceptable during the 2010/2011 school year and failed to provide students with a meaningful educational opportunity. Respondent was incompetent to comply with directives, which were reasonable and tailored to help Respondent meet the mandates of the PDAPs. Respondent’s art students were deprived a minimum educational experience.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Educational Practices Commission enter a final order revoking Respondent's teaching certificate. S DONE AND ENTERED this 30th day of June, 2016, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2016. COPIES FURNISHED: Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Robert Charles McClain, Esquire 4910 Flora Drive Melbourne, Florida 32934 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether it was proven by clear and convincing evidence that Respondent committed the offense(s) charged in Petitioner's Petition; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Stipulated Facts During the 2014-15 school year, Respondent was employed as a teacher at Frontier Elementary School ("Frontier"). Respondent is an experienced teacher. Facts Established at the Hearing Petitioner is the duly-constituted school board of Palm Beach County, Florida. It is charged with the duty to provide a public education to the students of Palm Beach County and to establish policies and programs consistent with state law and rules that are necessary for the efficient operation and general improvement of the Palm Beach County district school system. Respondent was employed by Petitioner as a teacher in the Palm Beach County district school system for 16 years and has been teaching since 1996. At all relevant times, Respondent was employed at Frontier in Palm Beach County, Florida. Respondent previously taught second grade, third grade, and fifth grade in self-contained class settings. During the events relevant to this action, she was an English Language Learners (ELL) resource teacher to children in grades first through fifth. Her performance evaluations had been positive up until the events which are involved in this matter. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of a collective bargaining agreement between Petitioner and the Classroom Teachers Association of Palm Beach County ("CTA"). Petitioner has alleged in its Petition that Respondent is guilty of the following violations of statute, School Board policies, or administrative rules: School Board Policies 0.01(2)(c) and (2)(d) Commitment to the Student, Principle I; School Board Policy 3.02(4)(a), (4)(d), (4)(e), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 5.002, Anti-Bullying and Harassment, Expectations; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff, School Board Policies; School Board Policy 3.27, Criteria for Suspension & Dismissal and Code of Ethics of the Education Profession in Florida; Article II, Section M of the CTA Collective Bargaining Agreement; Rule 6A-5.056, F.A.C., (2) Misconduct in Office; H. Rule 6A-5.056(4), F.A.C., of [sic] Ethics of the Education Profession in Florida; I. Rules 6A-10.081(3)(a) and (3)(e), F.A.C., Principles of Professional Conduct for the Education Profession in Florida. The facts underlying these alleged violations are outlined in paragraphs 8 through 12 of the Petition filed by the School Board dated March 2, 2016. See DOAH docket entry and Petition filed on March 2, 2016. Incident Involving Z.N. Z.N., a student of Respondent, was called by the School Board. On direct examination, he was unable to remember how he was treated by Turnbull when she was his teacher. Other than acknowledging that he remembered being pulled out of Petitioner's class, Z.N. articulated no credible, clear, or convincing testimony supporting any of the allegations lodged against Respondent regarding her interaction(s) with him. Z.N.'s mother, J.N., testified that Turnbull was her son's teacher when he previously attended H.L. Johnson Elementary School ("H.L. Johnson"). Z.N. would come home every day crying and seemed miserable in Respondent's class. These observations occurred when he was Respondent's student at that elementary school. He was moved to her class at Frontier on September 22, 2013. There were times when he attended her class at H.L. Johnson that he would come home from school and would be visibly shaking. He would throw up the night before school, and she would have to physically put him in the classroom while he would beg and scream not to stay. Prior to and after leaving her class, Z.N. did not exhibit those behaviors. She wrote a letter complaining to the principal about Respondent. His mother also testified that Z.N. has been diagnosed as having attention-deficit/hyperactivity disorder ("ADHD"). The mother observed that on days where he had to attend school with Respondent at H.L. Johnson, she noticed a big difference in his sleeping and his eating. His demeanor would change, and he became withdrawn. The mother of Z.N. did not personally observe any interaction between her son and Respondent in the classroom. The father of Z.N. testified as well. He recounted that his son did not want to attend school while he was previously in Respondent's class at H.L. Johnson. He would become upset, emotional, and withdrawn. His son "threw fits," broke down, and cried when he had to go to school. To investigate his son's disconcerting response, the father personally "observed" the class three times, from outside the door.1/ During one visit, he observed the class being somewhat reckless, and Respondent was trying to get her class under control. He heard Turnbull slam a book on the desk to get the attention of the class. He heard Petitioner use the "F bomb" on one occasion.2/ When Z.N. transferred out of Turnbull's class, he started doing very well, began to succeed, and started to come out of his shell. He began going to school with less of a problem. Like the mother, Z.N.'s father did not personally observe or witness any interaction between his son and Respondent. E.D. was a student in the same class with Z.N. and Respondent at H.L. Johnson. She testified that she found Respondent to be a great teacher, and she learned things in the class with her. She felt that Turnbull was very nice to other students and her. She never saw Turnbull pick on Z.N., or treat him in a way that she felt was unfair. On the other hand, E.D. testified that Z.N. was loud and disruptive in class. Z.N. caused problems in the class which prevented the class from moving forward. E.D. did not recall hearing Respondent yell at any students, other than perhaps once when the class was loud. She never saw or heard Z.N. cry in class. The testimony of E.D. was credible and gained from personal knowledge and actual observation of teacher/student interactions in the classroom. Turnbull testified about her involvement with Z.N. At some point in time, Z.N. eventually became her class student. He was bright, although he had a diagnosis of ADHD and had been prescribed medication, which he "took infrequently, at best." He acted out and was disruptive in class virtually every day. He was disruptive in different ways, sometimes calling out and sometimes making funny noises with his mouth. At times, he would bother the other children. The behavior of Z.N., combined with that of other students, was difficult and disruptive, preventing her class from moving along according to the curriculum. As a result, the class was falling behind the other classes academically. Respondent did yell at Z.N. but not as a first resort. She would first talk to him and ask him to stop. She tried different techniques with Z.N., but admitted that there could have been times when her voice got louder when she had to repeat the same thing to Z.N. six or seven times within a short time period. She has a loud voice, which some students can interpret as yelling, but that was not her intent. Until the time Z.N. left her classroom, she felt that the parents were supportive. The mother sent her emails thanking her partially for what she was doing for her son, including an email thanking her for easing his transition into her class. She felt compassion for Z.N. and believed that he could not control what he was doing, particularly when he was not regularly taking his prescribed medication. The more persuasive evidence is that Z.N. presented teaching problems and challenges to Respondent. He disliked going to school after he was assigned to Respondent's classroom, but the undersigned is not convinced that his reaction to school was based on any traumatic treatment by Respondent. Z.N. himself offered absolutely no evidence regarding any wrongdoing by Respondent. Based on this record, there was simply a lack of clear and convincing evidence to support the allegation(s) that Respondent violated any statute, policy, or rule regarding her interaction with Z.N. Incident Involving Student A.C. A.C. was called by the School Board. He was Turnbull's fifth-grade student at Frontier. A.C. is now 13 years old and in seventh grade. On direct examination, he testified that he liked having Respondent as his teacher. He also recounted that there was not a time he did not want her to be his teacher or a time he did not want to be taught by her. Inconsistently, however, he also testified that he talked to his parents about getting him out of Respondent's class because she was rude and he did not want to be in her class. After he was no longer in her class group, there came a time when Respondent wanted A.C. to return to her group. A.C. testified that Turnbull came to get him and took him outside to talk. She stood close to him outside in a hallway alcove. He said that he was scared and nervous because he did not like the idea of a teacher talking to him. However, Respondent did nothing else to make him feel uncomfortable while they were standing in the hall. Respondent was merely talking to him. A.C. testified that when he spoke with Respondent in the hallway, she told him how much she liked him. She was not yelling or rude to him. This same hallway discussion between Turnbull and A.C. was apparently observed by Jacquelyn Marie Smith, a ten-year teacher at Frontier. She testified that one day as she was walking down the hallway with a few students, she observed Respondent and A.C. in the alcove of a doorway outside a classroom, standing about eight inches apart. It appeared to her that Respondent was speaking to A.C. and reprimanding him for something. She observed the look on A.C.'s face and could tell that he was very uncomfortable. However, she did not hear anything said by either Respondent or the student. She assumed the student was being disciplined based on his body stance and facial expressions. She did not observe Respondent place her hands on A.C. in the hallway. She testified that she observed the situation for "maybe 10 seconds."3/ There was nothing about Respondent's demeanor, posture, or anything else that led her to believe that Respondent was angry or upset. She never observed A.C. crying during her brief observation of this hallway encounter. Another teacher, Rosa Cabrera, testified that as she was passing by, she also saw Respondent in the hallway with her finger pointed at "J," a second-grader. Respondent was crouched down in the student's face saying things which Cabrera could not hear. She had no idea what Respondent was saying to the child. She did not hear anything, although she passed very close to Respondent and the student. The two were talking in a tone lower than a typical conversational tone. Like Smith, Cabrera found the fact that Respondent was standing so close to the student to be improper.4/ Respondent testified that A.C. was removed from her group for a period of time. She understood that he had gone home one day and expressed to his father that he was upset because he felt that she did not like him or that she had been mean to him and he did not want to go back to her class. When he was removed from her teaching group, Turnbull became concerned about A.C. not being provided the teaching instructions he needed. It was unrebutted that she exchanged emails with the assistant principal expressing her concern for him and her desire to work with A.C. again. As a result of her request, she was directed by the assistant principal to work with A.C. again. Respondent decided to speak to A.C. first to be sure that he was comfortable with her. She asked A.C. to come out of his class into the hallway, and they spoke in the hallway alcove. The alcove was the width of the door and perhaps an additional six inches on either side. She did this so that their conversation would not be overheard by classmates, would not embarrass him, and to ensure that A.C.'s privacy would be protected. She stood close to A.C. because there was little room in the alcove and she could hear his voice. She wanted to speak quietly and gently to him so that she would be more reassuring to him.5/ Respondent told A.C. that she understood that he felt that she was angry at him for some reason. She told him that she wanted to reassure him that she was not angry with him. Respondent told A.C. that there had been some misunderstanding between them and she would like to try to clear it up. She asked him how he felt about coming back into her class group, and told him that they missed him because he was a great addition to it. By the time the conversation was over, A.C. was smiling. They shook hands and said that they would see each other in group later that day. A.C. came to her group later that day and had an excellent session, smiling more than he had before. At no time in her conversation with him was there any scolding, anger, or cross words used. The evidence from the student, A.C., did not support a finding of any violations by clear and convincing evidence. What he did recall, and testify to, did not amount to infractions by Respondent. Likewise, the fellow teachers' unfavorable conclusions about what they observed in the hallway alcove were based on brief observations and did not constitute clear or convincing evidence of any violations. Incident Regarding Marisa Madzi Respondent "pushed in" to the classroom of Marisa Madzi, a third-grade teacher at Frontier.6/ Madzi alleged that Respondent "corrected her" in front of the class, although Madzi could not recall specifically what the correction was about. She recalled that Respondent "chimed in," telling her that she was wrong about a point or topic she had been explaining to her class. Madzi felt that Respondent acted in an unprofessional manner and that if she had an issue, she thought she should have addressed it afterwards and not in front of the class. However, Respondent's statement in front of the class did not cause her to stop her teaching. Respondent previously complained to Madzi that Madzi was loud in the classroom when she taught and that it was interrupting Respondent while she was working with her small group.7/ Respondent explained the incident in a different way. She was working with her students when one of them shared with her his response to Madzi's explanation of the answer. The student explained to Turnbull that he did not understand why his answer was wrong. She looked at the question and could see where his confusion came from. Either Madzi walked over to her to determine what she was talking to the student about or Respondent gestured for her to come over. She told Madzi that "I explained it to him, but you may want to go further into explaining to him why that's the right answer." Madzi had a reaction to being called over by Turnbull and said, "Okay, I will take care of it." Madzi had a funny look on her face that made Respondent uncomfortable. Thinking that Madzi may have been upset by their interaction in class, Respondent sent her an email (Resp. Ex. 40), saying that she did not intend to step on Madzi's toes. The purpose of the email was to apologize for giving Madzi the impression that she was correcting her. Turnbull testified that during the entire time that Respondent worked at Frontier, Madzi never spoke to her to suggest that there was anything about her, her teaching style, or her dealings with her students that she was uncomfortable with. The undersigned finds that there was not clear or convincing evidence to conclude that the incident in Madzi's class constituted a violation of any statute, policy, or rule. Incident Involving Rose Cabrera Rose Cabrera has been a teacher at Frontier for 12 years. She was driving home from campus one day and felt that Respondent was driving behind her in an aggressive manner.8/ The next day Cabrera approached Respondent on campus and said that she was the one that Respondent was tailgating and yelling at. She claimed that Respondent immediately got upset and started yelling at her and telling her that she was unprofessional. Cabrera then walked away. The next work day, Respondent stopped Cabrera in the hallway and asked to talk. Cabrera claimed that Respondent told her that "there were two possible reasons why people tailgate; either they are crazy or they have a problem, like something's going on." Cabrera testified that she walked away; but, that Respondent continued to yell at her, saying that she was unprofessional and pointing her finger at her. No students or other employees were present at either of these encounters between Respondent and Cabrera, and none were called to testify about them. Turnbull testified that she recalled the incident. She was running late for an appointment and was driving in a rush. She did not recognize the person driving the car in front of her. The next day, as she left the mail room, a person whom she did not recognize was blocking her way. The woman began to berate her, stating that Respondent had been tailgating her, that she was crazy on the road, that the woman had recently had an accident and was very nervous on the road, and that Respondent should not have been doing what she did. Respondent "could not get a word in edgewise." Neither woman was shouting. Shortly thereafter, Respondent saw Cabrera in the hallway and asked to speak with her. She tried to explain to her that she was sorry if she had upset her on the road. The two were talking over each other, but Respondent tried to explain that if somebody is behind her or beeping or waving or tailgating, she usually just gets out of their way, as obviously they are in a hurry for some reason. Cabrera said that she did not want to talk to Respondent. She had upset her the other day and was upsetting her again, so she walked away. As Cabrera was walking away, Respondent told her she was being unprofessional because she was not allowing Respondent to reply to the accusation. They never spoke of the matter again. The off campus incident on the road and the follow-up discussions on campus do not support a violation of any statute, rule, or policy by clear and convincing evidence. There was no credible evidence presented to suggest that any students or other staff members were affected, and the dispute was in the nature of a personal disagreement between Turnbull and Cabrera. This conduct and personal encounter, while regrettable, did not rise to the level of a violation of a statute, policy, or rule by Respondent. Incident in Alyssia Liberati's classroom. Alyssia Liberati worked as a teacher at Frontier for approximately 15 years. Respondent was teaching two students at the back table in her classroom, while Liberati was teaching the main class a social studies lesson. Liberati asked her students a question and, when some raised their hands, Respondent inexplicably raised her hand as well. The students thought that was funny. Liberati did not find Respondent's action to be appropriate because she was asking the children the question, not Respondent. Liberati could not remember whether Respondent was working with her students on a separate matter or whether they were included as part of the social studies lesson. Respondent claims they were coordinating their work, and one of her students wanted to participate in Liberati's question. Turnbull further testified that when the class was asked this question by Liberati, one of Respondent's own students had the correct answer. She encouraged the student to raise his hand and answer Liberati's question. When he just smiled, she offered to raise her hand for him, and he agreed. When she raised her hand, Liberati called on her. When the student would not answer, despite her encouragement, Respondent announced the student's answer and attributed it to him. Liberati said nothing to her then or after class and did not chastise her in any way, then or later. Respondent testified that part of her job was to help the English for Speaker of Other Languages (ESOL) students acquire oral language and the ability to socially interact and participate. She wanted to show the student that he should not be afraid of participating. Liberati continued on with her class and never suggested to Respondent that by raising her hand and offering her student's answer, she had disturbed her class. Empty Classroom Incident with Alyssia Liberati On another occasion, Respondent went to Liberati's classroom to "push in" and found the classroom dark and empty. Respondent waited for approximately ten minutes, thinking that the students may have been out of the room for some reason and would be late getting back. When the class never appeared, Respondent left. She wrote an email to Liberati, asking that she be notified in the future if the class and teacher were not going to be in the room at her designated arrival time.9/ Pet. Ex. 12. Liberati testified that she received an email from Respondent that night, which she characterized as requesting that she let Respondent know next time in advance if she was not going to be in the classroom because her time is valuable, that she does not have much time to go from one classroom to the next, and that she had wasted her time trying to find out where her students were. She responded to the email late that night, explaining about her daughter. She found Respondent's email to be offensive and inappropriate. The next morning, Respondent read the late night email from Liberati and, for the first time, found out about Liberati's daughter's situation. She responded immediately to Liberati and explained that at the time that she wrote her email, she had not known that Liberati's absence had been due to a family emergency. She also inquired about the well-being of her daughter. Pet. Ex. 12. Respondent further wrote, "No offense was intended," and "[S]o I hope none was taken." She followed up by going to Liberati's room in the morning to ask her if she had seen her email from that morning. Liberati replied that she had not yet seen it. Respondent explained to her that had she known that Liberati's daughter was ill, she would have never sent the email. Respondent told Liberati that her daughter takes priority and that she inquired as to how her daughter was doing. Liberati testified that she was offended by the email and that Respondent did not have to send it. She felt that Respondent could have asked another teacher where her students were. Respondent tried to explain to her that she had been instructed not to knock on other teachers' doors for any reason, so she did not-–as she did not want to disturb other classes. Nonetheless, Liberati was very angry with her. During Respondent's follow-up about the second email the next morning, Liberati felt that Respondent was in her personal space and she felt uncomfortable. She noted that Respondent's tone was very rude and confrontational and felt Respondent should not be speaking to her like that in front of the children in the hall. However, Liberati acknowledged that Respondent expressed to her in one form or another that no offense was intended. Liberati's coworker, Tara Levine, saw Respondent come down the hallway the next morning in what she described as a fairly aggressive manner, at a fast pace and with an annoyed look on her face. Levine observed a conversation between Liberati and Respondent which she felt was "a little heated." However, Levine admitted that she could not remember the conversation or its tone. She felt it was necessary to remove students from the area, which was in the hallway just before school started. Levine testified that Respondent's finger was in Liberati's face, although she observed that Liberati is much taller than Respondent, who was standing very close to Liberati. Levine never reported the incident to any administrator. Based on an objective view of the facts involving Liberati's classroom hand-raising incident and their exchange of comments regarding the empty classroom incident, there is no clear and convincing evidence that these events constituted a violation of any statute or rule. Respondent was attempting to coach her student to raise his hand when he had the right answer, and then modeled the hand-raising for him. Rather than doing something improper, Respondent was serving her student in a manner that caused no problem to Liberati. While Liberati may have been taken back by this technique, it did not constitute a violation of any rule or policy. Likewise, there was nothing improper about the email written by Respondent, who did not know about the ill child. When she found out, she responded appropriately and with due concern for the child, explaining that she did not know of the circumstances. Although the undersigned credits the observation by Levine, the hallway confrontation between Liberati and Respondent does not rise to the level of clear and convincing evidence to support a violation of statute, policy, or rule. Incidents Involving J.B. Respondent taught in a class of students with Janet Vino, a teacher at Frontier. Vino testified that Respondent was very aggressive toward her student, J.B. Respondent would get "in his face," speaking loudly enough for the rest of the class to hear. While Vino conceded that there was nothing inappropriate about reprimanding a student who is having behavior issues, Respondent did so in a way that Vino could hear Respondent as she was teaching her lesson off to the side. Vino described Respondent's demeanor with J.B. as very loud, with her being very close to him and with her fingers pointing in his face. Vino said that Respondent on occasion would ask her in class whether she had issues with him too. On occasion, J.B. would hide in the bathroom to avoid going with Respondent. When he would come out to go with her, he would be sulking. J.B. was in the midst of a number of family and legal-related problems, and he also had discipline issues. Vino acknowledged that she was never trained to avoid pointing your finger and shaking it at a student or not to "get too close to a student." Respondent conceded that she had problems with J.B. He would not do his work and was disruptive. J.B. would do disruptive things, like crawl under the work table and lift it up with his shoulders, while she was working with the other students. J.B. spoke to her disrespectfully at times and would hold up the class by taking his time getting started and by not being ready when she would arrive to pick him up. Sometimes he would go in the bathroom and would not come out. The effect of J.B.'s behavior on her teaching was to limit the time that she had available to teach him and other students in his group. It often took ten minutes to get J.B. to the room and seated at the table, before they could even get started. His behavior interrupted the lessons that Respondent was trying to teach and interrupted the learning of the other students. Respondent sought help with J.B. from his teacher, Vino, and Assistant Principal Witt. Respondent sought help from Vino one time in her classroom, calling her to ask if she could come over and help with J.B. because he was refusing to work and instead was writing on the worktable with a crayon. Vino never complained to Respondent about her request for help but seemed unwilling to help her with J.B. As a result, Respondent did not seek her assistance again. Turnbull sent emails to the principal and the assistant principal concerning J.B. and his problems at school. Respondent felt that J.B. was a special child who came from a difficult situation and that people at the school should be working to help him. She wanted to keep the administration informed regarding her dealings with him and how he was doing with her. Resp. Exs. 10, 11, 12, 15, and 24. Respondent made efforts to try to work with and communicate with J.B., notwithstanding his behavioral issues. She tried speaking to him directly and told him that his behaving was keeping him from learning and preventing the other student from learning. Respondent testified that she liked J.B., and, as disruptive as he was, she felt a great deal of compassion for him. She understood his bad situation at home and knew that his family was split up among foster homes. She believed that his disruptive behavior was attention-seeking and that he was an angry boy. The undersigned finds that the more credible and persuasive evidence establishes that Respondent had trouble with J.B., who presented a formidable challenge to teach. This very likely would have been true for any teacher dealing with him. Respondent sought help from his teacher and the administration. The observations and concerns raised by Vino, while understandable, do not rise to the level of providing clear and convincing evidence of a violation of any statute, policy, or rule. Behavior Observed by Principal Susan Groth Susan Groth has been the principal at Frontier for six years. She felt that the collegial and helpful climate at her school changed after Respondent came to the school. While offering no causal or underlying link to Respondent, Groth claimed that teachers became more reserved, no longer left their doors open in the morning, and had fewer interactions with one another. She claimed that this collegial atmosphere changed with Respondent's arrival.10/ Groth claimed to have personally witnessed that after certain encounters with Respondent, Community Language Facilitator Melady Roque would be shaken and crying.11/ Groth personally encountered combative behavior from Turnbull when she would try to have conversations with her. She also started to receive complaints from other teachers about Turnbull.12/ In response, she offered Respondent different training opportunities, which Respondent attended. Groth provided Respondent with two mentors for advice because she was new to the "push in" and "pull out" class system at Frontier. Groth was made aware of issues involving Respondent from other teachers within her first three weeks at the school. She received reports about Respondent concerning intimidation, humiliation, interruptions, unprofessionalism, and Respondent being very defensive.13/ However, she did not witness those encounters or behaviors herself. She noted that Respondent was defensive when she would provide constructive feedback to her. During one of her classroom observations of Respondent at work, a student misread certain sight words. Respondent nonetheless praised his work. Groth addressed the matter with her. She felt that Respondent's response to her counseling was very defensive. Subsequently, Groth gave a written observation report to Respondent. Respondent disagreed with several observation points made by Groth. She provided Groth with a written explanation setting forth her rebuttal and verbally defended her position.14/ Despite this, when Groth provided her with helpful resources and training to review, Respondent participated. However, Groth felt that Respondent did not accept her criticism very well. The issues that Groth had with Respondent were becoming less serious as time went on. It appeared to Groth that by January of Respondent's first year at Frontier, Respondent was beginning to properly adjust to the school environment and personnel. However, shortly thereafter, during an investigative meeting with Turnbull, Groth confronted Respondent with the names of several teachers that had complained about Respondent's behavior.15/ During the meeting, Turnbull had a pad of paper out and was bearing down hard and writing every time a new name of a witness was disclosed by Groth. At one point, she threw down her pencil on the table in frustration and stated, "This is horse shit." She did not throw the pencil at any person, nor did Groth think that it was her intent to do so. Respondent's union representative, at one point, had to calm her down because Respondent's arms were flailing, and she was explosive. Respondent used profanity during the meeting.16/ Despite Turnbull's actions, the process went on to completion. Neither Respondent nor her union representative ever asked for the meeting to be adjourned. Respondent's actions during that meeting were documented.17/ Pet. Ex. 11. Turnbull provided her version of this investigatory meeting with Groth. She received notification that an incident involving A.C. was being investigated. The notice of the meeting advised her that there was going to be an inquiry into an incident regarding A.C. At the meeting, other matters, unrelated to A.C., were brought up by the principal. Respondent objected to the other matters being raised. She felt that she had been "blindsided" and was being treated unfairly by consideration of matters that were not part of the official notice to her. Respondent became upset and started crying because these issues were statements made against her by colleagues, and she did not know so many people were upset with her. She testified that none of her colleagues ever approached her about any of these complaints or issues. She thought that the meeting was called to discuss one specific incident regarding one specific child. She was overwhelmed when she learned that there were so many complaints against her by teachers who had never said anything to her. Respondent was completely unaware that the statements from other teachers had even been taken. She admitted she felt betrayed and was extremely upset, stunned, and shocked. She did not threaten any person and did not confront any of the complaining teachers or staff members. Groth claimed to be worried about the safety and security of her staff and students, because of Respondent's profanity, emotional state, and explosive behavior at the meeting. Groth worried about Respondent "going after" one of the people on the list of witnesses announced at the meeting. After the meeting, Respondent was escorted off the campus without incident. Groth's belief that the mood at her school changed after Respondent arrived, without her own specific observations of conduct by Respondent, is nonetheless credited. However, her "sense" of an atmospheric change falls short of clear and convincing evidence of a violation of a policy or rule by Respondent. While Groth had the responsibility to observe and evaluate Respondent's performance, Respondent had the right to professionally and respectfully defend that performance in the observation conference. The manner of her evaluation performance defense does not violate any statutory policy or rule. However, the undersigned finds that Respondent's use of profanity and her unrestrained and explosive conduct, at the investigative meeting, were inappropriate and insubordinate. Petitioner provided sufficient and credible evidence to prove a violation of the rules and policies by clear and convincing evidence regarding her actions and conduct during this investigatory meeting with Groth. Other Relevant Events and Testimony From Respondent Aside from teachers who claimed difficulties or hostile encounters with Respondent, there were also teachers and colleagues who complimented her work and teaching methods. Janine Brockelbank has been a "push in" teacher at Frontier since 2003, like Turnbull. When she worked together in the room, she did not observe any problems with Turnbull. She observed Respondent working with Lisa Caprio's students, and the interaction seemed positive and professional to her. Turnbull often spoke closely and quietly to children in consideration of the privacy of the children and to prevent embarrassment. Brockelbank also stated that Respondent was cooperative and collaborative when they compared lesson plans with one another. Caprio taught at Frontier since it opened in 2001. She found Respondent to be on time and was always prepared to work with students. She promptly got started with the students and seemed to be ready to work with them. Caprio never had any issues with Respondent in her classroom. Caprio stated she did not find any issues with a teacher interrupting her lesson for assistance with a student. In her view, it was appropriate for a "push in" teacher to ask for her help with a student. Jennifer Eddy taught at Frontier for 13 years. Eddy observed Respondent work with her students. There was nothing that Respondent did while she was teaching in the same room that disturbed her or kept her from doing her job, nor caused her concern for the well-being of Eddy's students while they were taught by Respondent. Eddy thought that Respondent's one-on-one instruction seemed appropriate, collaborative, positive, helpful, and beneficial to the students. Catherine Burda is a 14-year veteran teacher at Frontier. She observed Respondent work hard and well with one of her students and felt she learned a lot from Respondent. Respondent had a good relationship with her students and came prepared each day. Burda wrote a positive and praising email to the principal regarding Respondent's work. Resp. Ex. 16. Burda appreciated that Respondent always spoke honestly and freely with her. Karen Lundgren worked with Respondent at H.L. Johnson and considered her to be a good colleague. Lundgren worked closely with Respondent, who was cooperative, collegial, and friendly. Respondent got along with students and taught them well. She acted professional and caring towards both students and colleagues. Smyrna Daumec, an 18-year teacher, taught with Respondent at H.L. Johnson. She found Respondent to be a good colleague because Respondent would contribute ideas on how they could work together and they shared lesson plans. Notably, she witnessed Respondent having professional disagreements with colleagues, but none of those professional disagreements adversely impacted her ability to teach. Respondent knew the material that she was teaching and was a cooperative coworker. Respondent was kind to the students and not belittling or mean. Parent S.S. had a daughter in Respondent's third- grade, gifted math class at H.L. Johnson. Her child learned and made progress in Respondent's class. Respondent remains her favorite teacher to this day. Her child learned and achieved in Respondent's class. Respondent consistently kept S.S. updated on her child's progress through email or notes in the agenda. S.S. never had any problems with Respondent, and her daughter had a good year of school when she was with Turnbull. She observed that Respondent interacted warmly with students and parents and acted very friendly and cheerful. Parent C.B. knew Respondent as a teacher for her two children at H.L. Johnson. When her children had Respondent as a teacher, they never acted or manifested a desire not to go to school. Respondent kept her updated on her children's progress, and she had open communication with Respondent while she was the teacher for both of her children. She found Respondent to be volunteering and helpful. She saw Respondent interact with other children in addition to her own when she was on campus and did not observe anything that was negative in those interactions. Her children had good years in school when they were in Respondent's class and seemed happy with her as a teacher, despite Respondent being a strict teacher. As a parent, C.B. was very happy with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order withdrawing the proposed five-day suspension and issuing instead a letter of reprimand to Respondent regarding her conduct during the investigatory interview with her school principal. DONE AND ENTERED this 9th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 9th day of March, 2017.
The Issue Whether there exists just cause to suspend Respondent from his teaching position for five days, without pay, for "misconduct in office" and "immorality," as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Piper High School (Piper)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Enid Valdez was the principal of Piper; Patrick Lowe, Robert Godwin, and Sharon Grant were assistant principals at the school; and Donavan Collins was the school's social studies department chair. Respondent has been a social studies teacher at Piper since 2002. He presently holds a professional services contract with the School Board. During the first semester of the 2009-2010 school year, Respondent taught three American History classes at Piper (during the first, second, and fourth periods of the school day). The previous school year, in or around February 2009, Respondent had ordered, in his own name, a 25-copy per issue subscription for the upcoming 2009-2010 school year to "New York Times Upfront" (Upfront), a magazine for high school students published by Scholastic, Inc., that Respondent believed to be an "excellent [learning] tool" from which his students could benefit academically. The total cost of the subscription (Upfront Subscription) was $246.13. Respondent planned to use the magazine in the classes he would be teaching at Piper the following school year. After receiving, in or around August 2009, 25 copies of the September 2009 issue of Upfront, the first issue of the 2009-2010 school year, Respondent distributed them to the students in his three American History classes for their review. He told the students they each would have the option of using Upfront, instead of School Board-provided materials, for class assignments, provided they paid him $3.00 to help cover the cost of the Upfront Subscription. He subsequently asked each student in his three classes whether or not that student wanted to exercise this option and noted on the class roster those students who responded in the affirmative (Upfront Option Students). For the next two or so months, he collected money (in cash) from the Upfront Option Students and recorded each payment he received. On October 22, 2009, using his debit card, Respondent made an initial payment to Scholastic of $124.00 for the Upfront Subscription (that he had ordered in or around February 2009). He made a second and final payment of $122.13 (again using his debit card) on November 3, 2009. The money Respondent collected from the Upfront Option Students was insufficient to cover the $244.13 cost of the Upfront Subscription. Respondent paid the shortfall out of his own pocket. Sometime in early November 2009, Respondent gave the Upfront Option Students their first assignment from the magazine (copies of which Respondent had distributed to the students). During the 2009-2010 school year, Piper had the following policy concerning the collection of money (Piper Collection of Money Policy), which was published in the Piper 2009-2010 Faculty Handbook: Money is never to be left in any classroom, storage cabinet, or office desk. Collected money is the responsibility of the teacher and is deposited with the school bookkeeper by the end of the day. A receipt will be given when the money is deposited. Money cannot be collected by any teacher unless the collection and distribution of the money has been previously discussed, planned, and approved by the principal's designee and the bookkeeper has been informed. All money must be deposited daily with the bookkeeper. (The document referred to in paragraphs 7 and 8 of the Administrative Complaint as "Exhibit A" is a copy of the Piper Collection of Money Policy, as the parties stipulated at hearing.3 See pp. 66 and 67 of the hearing transcript.) Respondent was provided a copy of the Piper 2009-2010 Faculty Handbook prior to the beginning of the 2009-2010 school year. At all times material to the instant case, Respondent was aware of the Piper Collection of Money Policy. Nonetheless, in violation of that policy, he did not obtain, or even seek, the necessary administrative approval to collect money from the Upfront Option Students, nor did he deposit any of the money he collected from these students with the bookkeeper, much less inform her (or any school administrator, for that matter) of his money collection activities. The foregoing notwithstanding, his intent in acting as the conduit through which these students purchased issues of Upfront for use in his classes was to help the students achieve academic success, not to exploit them for his own personal gain or advantage. He never had any intention of doing anything with the money he collected from the students other than using it (as he ultimately did) to help cover the cost of the Upfront Subscription. It was not until on or about October 19, 2009, that the Piper administration first learned about Respondent's money collection activities as a result of discussions that Assistant Principal Lowe had with students in Respondent's classes. After having been briefed by Mr. Lowe regarding what these students had reported, Principal Valdez asked Assistant Principal Grant to speak with Respondent. During his meeting with Ms. Grant, Respondent admitted to collecting money from the Upfront Option Students to help pay for the Upfront Subscription, and he acknowledged that he had not sought approval from anyone in the school administration to do so. On or about October 26, 2009, Principal Valdez sent a Personnel Investigation Request to the School Board's Office of Professional Standards and Special Investigative Unit (SIU) through which she requested that SIU conduct an investigation of the matter. An investigation was authorized by SIU on October 28, 2009, and an SIU investigator was assigned the case a week later. On or about November 3, 2009, Respondent was provided with a letter from Craig Kowalski, the SIU Acting Executive Director, advising Respondent of SIU's "investigation into a complaint . . . regarding an alleged violation [by Respondent] of the Principles of Professional Conduct of the Education Profession in Florida, Rule 6B-1.006(2)(h) [sic],[4] to include the collection of money from students to purchase magazines." After the SIU investigation was completed, an investigative report was prepared and presented to the School Board's Professional Services Committee for its consideration. The Professional Services Committee found "probable cause." A pre-disciplinary conference was then held, after which the Superintendent, on August 10, 2010, issued an Administrative Complaint recommending Respondent's suspension, without pay, "for a period of five (5) days effective from June 3, 2010 through June 9, 2010."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order finding that the charges against Respondent have not been sustained, dismissing these charges, and awarding Respondent any "back salary" he may be owed. DONE AND ENTERED this 26th day of July, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 26th day of July, 2011.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Does just or proper cause exist to terminate Respondent- custodian, an educational support (non-instructional) employee for gross insubordination, misconduct in office, violation of the Code of Ethics by attempting to use students for personal gain, and overall unsatisfactory job performance?
Findings Of Fact Respondent was first employed as a custodian at Gainesville High School by the Alachua County School Board on August 16, 1993. As such, he qualified as "non-instructional personnel" and as an "educational support employee." He remained continually employed until the termination letter giving rise to the instant case. At all times material to this cause, Respondent was employed under a Collective Bargaining Agreement between his union and the School Board. On May 20, 1994, Respondent completed training for and was certified as a "Certified Custodian." He received a "step-up" in pay as a result. Certification attests to competency, not performance or attitude. Samuel D. ("Sam") Haywood, Assistant Principal, supervised and evaluated Respondent through a chain of command during the school years of 1993-1994, 1994-1995, and 1995-1996. Despite an interim evaluation identifying problem areas on March 16, 1995, Respondent was rated overall "satisfactory" annually during those years. Petitioner had a history of being uncooperative and verbally abusive with the Head Custodian and Lead Worker, but these problems were resolved by the subsequent annual evaluations and prior to the present charges, so they have not been considered. At the conclusion of the 1995-1996 school year, Sam Haywood was replaced as Assistant Principal by John C. Williams, who continued to supervise Respondent through a chain of command that descended through Albert Williams, Head Custodian, and Alexander Bradley, Lead Worker. As of the 1996-1997 school year, Respondent was the on- site union representative for the Gainesville High School custodians. Assistant Principal John C. Williams holds a master's degree in school psychology and is a certified school psychologist. He had held the position of school psychologist in Sarasota County for ten years prior to his appointment at Gainesville High School. His supervisory experience consists of two years as assistant manager at Eckerd Drugs before becoming a school psychologist. At all times material he was responsible for the maintenance needs of Gainesville High School, making sure maintenance needs were responded to by the central office or the maintenance person on staff. That responsibility covered the upkeep of the grounds and the buildings. He was responsible for the cafeteria as far as being the immediate supervisor of the cafeteria manager and was responsible for the discipline of approximately 1,950 students. He also was responsible for the security of the buildings, responding to fire emergencies and evaluating one-fourth of the instructional staff. In addition, he was the site supervisor of the custodial staff with twelve custodians, plus the Head Custodian. Virginia S. Childs is the Principal of Gainesville High School. James Williams, Mark Lee, and Willie Townsend are custodians at Gainesville High School. On September 4, 1996, the Assistant Principal tried to locate Respondent because he wanted part of Respondent's assigned area raked and mowed for a sports activity that was taking place that evening. After searching from approximately 4:30 to 5:15 p.m., the Assistant Principal located Respondent exiting a restroom outside of his assigned area. The Assistant Principal directed Respondent to rake and mow the designated area "for company." By both the Assistant Principal's and Respondent's accounts, the Respondent told the Assistant Principal twice that, since he could not complete the job by 6:00 p.m. quitting time, he would mow or he would rake, but he would not do both. The Assistant Principal repeatedly told Respondent to do both jobs. In the course of arguing with the Assistant Principal, Respondent also appealed to a teacher/coach standing nearby that he should not have to do both jobs. The Respondent did not complete the job as requested. The Assistant Principal did not cite Respondent for not completing the September 4, 1996, assignment as requested, but, upon proper notice, he held a conference on September 6, 1996, to discuss the incident. Present were the Assistant Principal, the Principal, the Respondent, and the Respondent's union representative. In the conference the Assistant Principal stated that on September 4, he had simply requested the Respondent to do a job, and he did not expect to have to explain or justify the request to the Respondent. The Principal explained to the Respondent that the Assistant Principal was the Respondent's supervisor and that Respondent must comply with his work assignments unless they were harmful or unlawful even if Respondent disagreed with them. She explained that Respondent should first comply with the Assistant Principal's request and he could then pursue a grievance, if he felt a grievance were warranted. It was explained that the Respondent needed to be a member of a team and contribute positively and without wasting time instead of being confrontational and argumentative with his supervisor. The Respondent stated that he was a man and that he had the right to disagree with his supervisor about how his job should be done. No progressive discipline form was provided to Respondent. At formal hearing, Respondent maintained he had injured his back in 1994 and later injured his neck and left shoulder in January 1995, but the medical documentation shows an injury on March 3, 1995, to his neck and a September 27, 1996, strain to his trapezius muscle (shoulder). A School Board document references an October 2, 1996, injury. Respondent explained the new date of injury of September 27, 1996, was assigned by his doctor so that workers' compensation would cover an aggravation of the old injury. According to Respondent, the School Board initially denied the claim(s), but a ruling in his favor became final on November 26, 1996.2 In any case, after September 27, 1996, the Assistant Principal put considerable effort into adjusting Respondent's work hours and assigning him duties which complied with the evolving physical restrictions placed on him by his doctors. In order to improve general efficiency, the Assistant Principal and Head Custodian Albert Williams revised the work schedules of all the custodians, changing hours of work, lunch times, and even shifts. Albert Williams passed out the revised schedules and told the custodians that there would be a meeting in the conference room on October 3, 1996, to discuss the changes in their schedules and that they could ask questions about their schedules then. At the October 3, 1996, meeting, Willie Townsend raised questions about his own revised schedule. The Assistant Principal told him that they were there to discuss schedule changes and his priorities generally but not individual situations. He invited all the custodians to discuss individual schedules privately one-on-one in his office immediately after the general meeting. Respondent raised his hand, taking it upon himself as the on-site union representative, to speak on behalf of Mr. Townsend. The Assistant Principal recognized Respondent, but again said he would not go over each individual schedule in the meeting. Respondent continued to interrupt, and the Assistant Principal stated his position again. Over continued comments by Respondent, the Assistant Principal asked Respondent to be quiet. Respondent persisted in speaking, making rude comments, while the Assistant Principal tried to quiet him and move on with the meeting. The Assistant Principal finally rose from his seat and told Respondent to, "shut up." Respondent then stood up, too. Both men's voices were raised. As a result of this exchange, the meeting broke up without accomplishing anything. No credible evidence supports a finding that Respondent used profanity in the October 3, 1996, meeting.3 When the meeting broke up, the Assistant Principal led the way to his office. Behind closed doors, the Assistant Principal met with Respondent and Albert Williams. The Assistant Principal positioned himself behind his desk and told Respondent that his actions in the meeting had been inappropriate and uncooperative. The Respondent stated that he had a right to speak and that the Assistant Principal "could not tell me to do a damn thing." There is no evidence of profanity beyond this remark, which Respondent admits he made.4 The Assistant Principal asked Respondent to leave his office. Respondent did not leave. Instead, he asked to use the telephone to call a union representative. The Assistant Principal told him he would have to use the public telephone in the outer office. Respondent replied that the telephone on the Assistant Principal's desk was a public telephone and he had a right to use it. He reached for the telephone. The Assistant Principal moved the telephone out of Respondent's reach and stood up, asking Respondent to leave his office. Respondent then "bowed up," clenching his hands into fists at his sides. The Assistant Principal's perception was that Respondent was positioning himself to strike him. By that time, the voices of the two men were loud enough to be heard in an adjacent front office by Dr. Arnold of the school administrative staff, the school receptionist, two students, and a parent volunteer. Their movements were also observed through the office's glass door. Albert Williams felt it necessary to calm Respondent, caution him against any further talk or actions, and cajole him into leaving the Assistant Principal's office. No force was necessary to remove Respondent. The Assistant Principal snapped that Respondent, "was suspended." Respondent left the Assistant Principal's office and began talking to other custodians who had waited outside. Respondent then attempted to involve Dr. Arnold. She told him she would not speak to him at that time. Only then did Respondent and the other custodians disperse. After Respondent left the area where he had been talking with other custodians, Business Manager Judy Warren authorized him to sell tickets at the junior varsity football game. Principal Childs was apprised of the situation, and when she looked for Respondent, Ms. Warren told Ms. Childs where to locate him. The Principal went to Citizens' Field where the varsity game was being played. She told Respondent he was relieved of his duties and on paid administrative leave for October 4, 1996. Respondent had pre-scheduled vacation leave for the next two weeks. Upon appropriate notice, a disciplinary conference was held when the Respondent returned from his vacation on October 21, 1996. Present were the Respondent; Ms. Birdsong, Personnel Supervisor; a union representative; the Assistant Principal; and Dr. Jim Scaggs, Assistant Superintendent for Human Resources. At the conference, Dr. Scaggs reviewed the incident of October 3, 1996, with the Respondent, including written accounts by Dr. Arnold and the Assistant Principal. Dr. Scaggs informed the Respondent that it was not appropriate to challenge his supervisor during a staff meeting. He told Respondent that the Assistant Principal was the Respondent's supervisor and directed Respondent to recognize him as his supervisor. He further directed the Respondent to follow his supervisor's directions, work cooperatively with him in the future, and refrain from challenging him. Dr. Scaggs confirmed his oral instructions in writing, issued a notice of suspension of the Respondent without pay for three days, October 23-25, 1996, for raising his voice in the October 3, 1996, general meeting and afterwards, using mild profanity, attempting to use intimidating body language, insubordination, and a flagrant disrespect for his superior's authority, and Ms. Childs' failure to find Respondent on duty in his assigned workplace.5 Progressive discipline is only mentioned when Dr. Scaggs' letter comments on the removal of a progressive discipline form from the Respondent's personnel file because Respondent was not given a copy of it at the September 6, 1996, conference. Therefore, the October 23-25, 1996, suspension was Respondent's first discipline other than counseling. On November 18, 1996, Respondent was assigned to light duty (such as dusting) in B wing and scheduled from 2:30 p.m. to 11:00 p.m. The accounts of Respondent, the Assistant Principal, and James Williams concur that when Respondent came on duty he spent about ten minutes talking to James Williams who was supposed to be raking outside B wing. Respondent had no raking duties at that time, due to his medical restrictions. The Assistant Principal asked Respondent what he was doing out of his assigned work area on November 18, 1996, and asked him to go to his assigned indoor work area. At that time, Respondent did not tell the Assistant Principal that he was asking James Williams' advice about cleaning up chemicals in his area, which was the reason Respondent offered at formal hearing for being out of his assigned work area on November 18, 1996. By Respondent's, the Assistant Principal's, and James Williams' accounts, Respondent also did not immediately obey the Assistant Principal's directive. Instead, he continued talking to James Williams another 2-3 minutes and briefly spoke with Dean Byrd before following the Assistant Principal's instructions to go back to work on B wing. On November 25 or 26, 1996, Respondent was working the evening shift behind Mark Lee who did the heaviest duties while Respondent was doing light duty. Respondent went to the restroom and to get lightbulbs. That night, the Assistant Principal returned to campus shortly after 7:00 p.m. due to his daughter's volleyball game. He also walked through the school to see what was going on. He saw other custodians but not Respondent. He saw Respondent across courts and corridors twice, but they did not meet. When he finally located Respondent, Respondent did not at first give a clear answer where he had been. Then Respondent said he had been helping Mark Lee. The Assistant Principal went to speak to Mark Lee and closed the door behind him. There are three versions of what happened next, related by the Assistant Principal, Respondent, and Mark Lee, respectively. The best reconciliation of the three versions is that Respondent opened the door. Thereafter, a sort of tug of war ensued with the Assistant Principal repeatedly closing the door, insisting that he had a right to a private conversation with another employee, and Respondent repeatedly opening the door, insisting he had a right to hear any conversation about himself. This altercation ceased only when the Assistant Principal gave Respondent a direct order to leave the door closed. Respondent obeyed the oral order. When the Assistant Principal exited the room, Respondent asked him why he was harassing Respondent. Respondent then followed the Assistant Principal down the hallway, accusing him of harassing him. The Assistant Principal wrote up his version of the entire incident on November 26, 1996.6 Within a short time, Respondent announced to Mark Lee and Alexander Bradley that his neck hurt and his old injury had been aggravated by the Assistant Principal snatching the door away from him.7 Respondent next went to the Assistant Principal's office. The Assistant Principal searched for workers' compensation Notice of Accident forms but did not find any. He refused to authorize emergency treatment under the Workers' Compensation Act as a result of the incident with the door, because he viewed Respondent's behavior as insubordination and as not job related. He told Respondent to use his own insurance if he felt he needed emergency treatment. Respondent sought treatment. Respondent was put on three days' bed rest which coincided with the Thanksgiving holiday weekend. Respondent returned to work the Monday following the holiday weekend. On December 19, 1996, the Assistant Principal attempted to deliver to Respondent the mandatory notice of conference form letter, for a scheduled conference the next day. The Respondent walked away, thereby signaling his refusal to sign to acknowledge receipt of the notice. The Assistant Principal asked Respondent to wait there while he went to A wing, about 20 yards away, to get Alexander Bradley to be a witness to the delivery of the form. The Respondent did not wait but continued downstairs and crossed into the administration building. The Assistant Principal followed, requesting that Respondent sign the form. Principal Childs, coming out of her office, was in front of Respondent. The Assistant Principal, following behind, called out to Ms. Childs to ask the Respondent to stop to sign the notice. Only when Principal Childs asked Respondent to sign the form did he do so. She explained he must sign the form and the meeting would be rescheduled to accommodate his union representative. Respondent's defense to the foregoing incident was that he wanted to telephone his union representative to be sure she would be available the next day for a conference since that would be the day before a holiday. This explanation is not credible in light of Respondent being the on-site union representative and having been through conferences for the record before. With his familiarity with the procedures, he must have known when he walked away from the Assistant Principal that his signature would only acknowledge receipt of the notice and that the progressive discipline conference would have to be rescheduled to accommodate his union representative. Moreover, prior to this date, Respondent's union representative had explained to Respondent, in Ms. Child's presence, that Respondent's assertion that he had to call his union representative even before he signed accepting a notice was insufficient and that he must contact his union representative on his own time. The conference scheduled for December 20, 1996, did not take place because Respondent's union representative was, in fact, not available. It was rescheduled after the winter holidays, on January 7, 1997. The conference on January 7, 1997, was a progressive discipline meeting. Present were the Respondent, his union representative, the Principal, and the Assistant Principal. The incidents of November 18 and 26 and December 19, 1996, were discussed with the Respondent. The conclusion of the Principal and Assistant Principal was that the behaviors of the Respondent were unacceptable because he continued to show disrespect to the supervisor's authority. He was cited for being out of his assigned work area on November 18, 1996; for insubordination on November 26, 1996; and for refusing to obey a supervisor's direct order on December 19, 1996. As discipline the Principal imposed a two-day suspension of the Respondent without pay for January 15-16, 1997. On January 17, 1997, Bruce A. Mueller, OTR/L.CRT. of Rehab Solutions in Gainesville wrote to Gary Newcomer, M.D., that based on his evaluation, the Respondent was then able to work at the "light-medium" physical demand level for an 8-hour day. Mr. Mueller stated that the Respondent should avoid shoulder height and above activities, but he could do shoulder and overhead work on an occasional basis. On January 23, 1997, after required notice, the Assistant Principal gave Respondent an interim evaluation of his job performance. The Respondent was rated "Satisfactory" in the areas of Quality of Work and Appearance and Grooming; "Needs Improvement" in the areas of Productivity, Attendance and Punctuality, and Use of Time; "Not Satisfactory" in the areas of Responsibility and Dependability, Cooperation, Initiative, Personal Relationships, and Acceptance of Constructive Criticism. Overall Performance was rated "Not Satisfactory". The Respondent indicated in the meeting and by correspondence on February 5, 1997, that he did not agree with the evaluation. The plan for improving performance was set out in the following memo from the Assistant Principal: In order to improve overall performance David Mosley will receive directions from Albert Williams [Head Custodian] concerning his productivity, use of time and initiative. His performance as it relates to cooperation, personal relationships, i.e. as it relates to his supervisor, and acceptance of constructive criticism of his supervisor or head custodian can be improved by learning to work cooperatively with John Williams [Assistant Principal]. Efforts will be made to inform him when his behavior is not reflective of the appropriate employee-supervisor relationship. The custodial schedule changes that Respondent received before the interim evaluation directed him to follow the directions of the Head Custodian, Albert Williams. When Respondent asked Albert Williams whether the duty was appropriate under Respondent's medical restrictions, he referred Respondent to the Assistant Principal for clarification. The plan for improvement did not indicate any change in that procedure. On January 29, 1997, the Respondent visited Gary Newcomer, M.D., at Alliance Occupational Medicine in Gainesville. Dr. Newcomer issued a duty status report on that date, indicating that the Respondent had reached maximum medical improvement, and that the "light-medium" restriction was in place, and included a checklist of the activities and weights which the Respondent could operate. The Respondent had been assigned to "light duty" and his hours had been 2:30 to 11:00 p.m. On January 24, 1997, the Assistant Principal had issued a ten-day notice of schedule change to Respondent, requiring him to switch to 4:30 p.m. to 1:00 a.m., effective February 7, 1997, and that Respondent was to assume new duties of locking gates and checking the gym area after students returned from various late events. Respondent communicated with Synester Jones, Assistant Superintendent of Human Resources, and an old family friend, John Dukes, Jr., Assistant Superintendent of Student Support Services, asking them to intervene in what he believed to be harassment by the Assistant Principal. On January 30, 1997, Respondent went to Gainesville High School's main office and sought an interview with Principal Childs. When her secretary told him she was in conference, he asked to wait. While the Respondent was in the main office, the Assistant Principal requested that he return to his work area, the top of B Wing. The Respondent left the office and went around the corner. The Assistant Principal then went into a meeting with administrators Dr. Arnold and Mr. Bishop. The Respondent returned and stood at the reception counter. The Assistant Principal went out and again requested that he go to his work area. The Respondent said that he wanted to speak to the Principal. The Assistant Principal told the Respondent the Principal was busy and that he could make an appointment with her later. The Respondent then asked to speak to Dr. Arnold. Dr. Arnold told him she was busy at the time. The Respondent then asked to speak to Mr. Bishop. Mr. Bishop asked the Respondent if he could go to work. The Respondent replied he could. Mr. Bishop said, "You need to go to it." Only at that point did the Respondent leave to go to his work area. Respondent inquired aloud why no one would speak to him. Respondent's behavior at this time clearly evidenced that he would accept direction from other superiors but not his direct supervisor, the Assistant Principal. The custodians had been instructed that if they intended to leave work during their shift, they must first check with either Albert Williams, the Head Custodian, or the Assistant Principal. On January 30, 1997, Alexander Bradley, the Lead Worker, informed the Assistant Principal that the Respondent had left work, saying he was ill. The Respondent had clocked out at 3:27 p.m. but had not first checked with either the Head Custodian or the Assistant Principal. Upon proper notice, on January 31, 1997, a disciplinary conference was held to discuss the behavior of the Respondent on January 30. Present were the Respondent; his union representative; Dr. Arnold; the Assistant Principal; and the Principal. The concern was the unwillingness of the Respondent to respond to a request by the Assistant Principal in a cooperative and timely manner. The Principal and Assistant Principal imposed a two-day suspension of the Respondent without pay, February 5-6, 1997, for insubordination, referencing Respondent's willingness to take directions from Dr. Arnold and Mr. Bishop, but not his own supervisor. Nothing was said about security problems.8 In February 1997, the school received an updated report from the Respondent's doctor indicating his work capacities. A few days prior to February 19, 1997, the Assistant Principal revised the Respondent's written work schedule to reflect the doctor's latest report. On February 18 or 19, 1997, Respondent went to see Principal Childs to complain because his schedule was being changed so frequently. He complained that the new schedule called for him to sweep or mop and that sweeping and mopping aggravated his shoulder. Consequently, he was not required to mop or sweep that day. The Principal agreed to have the Assistant Principal review Respondent's restrictions. After consulting medical records and risk management, the Assistant Principal did not further alter the duties assigned Respondent. The Principal, the Assistant Principal, and Alexander Bradley went through the schedule with the Respondent to be sure he understood it. The next day, the Respondent again stated to the Lead Worker, Alexander Bradley, that he did not understand the custodial duties to which he was then assigned. Mr. Bradley informed the Assistant Principal, who then went to the Respondent's work area to explain the schedule to the Respondent. The Assistant Principal asked what Respondent did not understand. Respondent's reply was that he did not understand any of it. Clearly, Respondent was not being entirely accurate but was once more objecting to mopping and sweeping each day. However, his words, tone, and the context of his reply was flippant and disrespectful to his supervisor. The Assistant Principal chose to take the Respondent's reply literally and asked what specific duties Respondent did not understand. Respondent stated he did not want to discuss it with the Assistant Principal, and the Assistant Principal persisted in taking Respondent on a walk-through of his area and describing in minutiae each duty Respondent was expected to perform. This was not just mopping but dusting desks, chalkboards, and computers, and scrubbing sinks. The Respondent asked to have a neutral person present. The Assistant Principal stated the walk-through was not discipline requiring a union representative and that he wanted to proceed. The Respondent asked to go to the restroom. The Assistant Principal asked Mr. Bradley to go with Respondent so that Respondent would not leave the building. Respondent returned and, as the three men walked along the hall, Respondent stopped a student friend of his who was still on campus and asked him to telephone Respondent's wife and ask her to call Assistant Superintendent Dukes for him. The Assistant Principal told the student to move along and asked Respondent not to involve the students. Respondent repeated this situation with another student who was both Respondent's nephew and godson, and the Assistant Principal threatened Respondent with an insubordination charge. Respondent threatened to go to others about what he perceived as harassment. The Assistant Principal asked, "Are you threatening me?" Respondent responded, "You can take it as you want to, but it's not over yet." The Assistant Principal was called away and, as a result, Respondent and Mr. Bradley were briefly left alone. They got into a verbal dispute when Respondent accused Mr. Bradley of siding with the Assistant Principal. However, Mr. Bradley's testimony regarding Respondent's use of profanity to him is utterly incredible.9 When the Assistant Principal returned, he tried to continue walking the Respondent through his duties. The Respondent tried to walk ahead or even leave on occasion and had to be ordered by the Assistant Principal to wait or stay. Then, as the others would proceed along, the Respondent would not move and had to be ordered by the Assistant Principal to come with them. A verbal dispute arose over this and escalated into career threats on both sides. Finally, the Assistant Principal stated there was no sense in going through the rest of the school rooms, but he reiterated he wanted the work done that night. Respondent said he was not feeling too good. The Assistant Principal told him that if Respondent were going home, to come by his office first. When Respondent got to the office, the Assistant Principal handed him a notice to attend a disciplinary conference the next morning. Respondent signed the paper and left. He checked out at the time clock. On February 21, 1997, the Assistant Principal wrote up the last incident and recommended five days' suspension without pay as a disciplinary action against Respondent. On February 28, 1997, Assistant Superintendent Synester P. Jones met with the Respondent, his union representative, and the staff attorney to discuss the events of February 19-20. The Respondent brought up some issues that needed further exploration, including schedule changes and whether the schedule was outside the Respondent's work restrictions. The Respondent was also given an opportunity to put into writing his version of what had occurred. Following the meeting on February 28, 1997, Ms. Jones investigated the Respondent's work schedule and his assigned duties, and determined that the proposed work schedule was not outside his current medical restrictions. For example, the Respondent was not to do constant mopping, so his schedule had been arranged for mopping only the restrooms on one floor of B wing each day. By all professional health care accounts, Respondent's minimum physical functioning would permit him to mop 33 percent of his work day; lift 35 pounds occasionally; lift 15 pounds frequently; lift 7 pounds constantly; reach up to 33 percent of his work day; push with a force of 65 pounds occasionally; push with a force of 46 pounds frequently; and push with a force of 21 pounds constantly. On March 11, 1997, a follow-up conference was held with the Respondent. Based on the information she had obtained since February 28, and on the written statement and comments from the Respondent, Ms. Jones recommended to the Superintendent that the Respondent be suspended with pay until the March 18, 1997, meeting of the School Board, when he would be recommended for suspension without pay and termination. The Respondent was so informed on March 11, 1997, and the written termination letter was prepared following the meeting and delivered on March 13, 1997. Principal Childs concurred with Assistant Superintendent Jones' recommendation for termination because in each of her conferences with Respondent she had perceived that he had a great deal of difficulty accepting directions and/or following directions given by a legitimate supervisor, the Assistant Principal. She also believed his argumentative, uncooperative, and verbally abusive behavior was inappropriate, disruptive, and dangerous in the workplace, created a hostile work environment, and constituted an ineffective and inefficient use of everyone's time. Respondent presented several witnesses to the effect that he was a good and cooperative worker and two to the effect that the Assistant Principal was more vigilant about checking up on Respondent's work activities than those of any other custodian. However, none of these witnesses had any clear knowledge of changes made in Respondent's schedule and work assignments to accommodate his injury and restrictions, and none of them ever had to direct him as a supervisor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board terminate Respondent effective upon the dates contained in its termination letter, but only for gross insubordination, misconduct, and overall unsatisfactory job performance. RECOMMENDED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998.
