The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
The Issue The issue in this case is whether a high-school assistant principal made inappropriate remarks to two female students on campus during school hours, and then later harassed one of them, thereby entitling the district school board to suspend the administrator for 30 workdays without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Anthony C. Brooks ("Brooks") had been employed as either a teacher or administrator in the Miami-Dade County Public School System for approximately 23 years. At all times relevant to this case, Brooks was an assistant principal at Miami Jackson Senior High School, where his primary responsibility was discipline. The operative contract of employment between Brooks and the School Board required Brooks to "observe and enforce faithfully the state and federal laws, rules, regulations, and School Board Rules insofar as such laws, rules, regulations, and policies are applicable to the position of employment." Pursuant to the contract, Brooks agreed "to become familiar and comply with state and federal laws, rules, regulations and policies of the School Board and of the Department of Education for which [he] w[ould] be held accountable and subject to[.]" The agreement entitled the School Board to suspend or dismiss Brooks for just cause including "the failure to fulfill the obligations under this Contract." The Alleged Inappropriate Remarks The School Board alleges that on February 12, 2004, Brooks told M. D., a female student, that she should consider becoming a model, and that he would take pictures of her at the beach. The School Board alleges further that, the same day, Brooks separately encouraged another female student, F. J., to think about modeling. The evidence presented at hearing failed persuasively to substantiate these charges. The findings that follow in this section, based on evidence that is in substantial conflict, depict the likeliest scenario derivable from the instant record,1 though the undersigned's confidence in the accuracy of some aspects of this historical narrative is relatively limited.2 On the morning of February 12, 2004, a security monitor called Brooks to a classroom where some students were creating a disturbance. Upon his arrival, the teacher pointed out to Brooks the four students who had been causing problems. Brooks asked them to step outside. One of the four was M. D. Brooks told the students, in effect, to straighten up. In the course of lecturing the students, Brooks said to M. D., "You could be a model or something like that." Brooks was not attempting to proposition M. D. His remark was intended to boost her self-esteem and encourage M. D. to set higher standards of personal behavior for herself. Later that day, Brooks ran into M. D. outside the cafeteria. M. D. was talking to a security monitor, and Brooks overheard her say, "Mr. Brooks said I could be a model." The security monitor loudly and rudely scoffed at that idea. Thereafter, Brooks took M. D. aside, to the doorway of the SCSI (indoor suspension) room, and warned her not to discuss her personal business with everyone. Sometime later (perhaps the same day), Brooks was walking in the cafeteria, and F. J., a friend of M. D.'s, stepped on his foot. F. J. continued on her way without pausing and sat down at a table outside the SCSI room. Brooks walked over to her and invited an apology. F. J. declined. Brooks informed her that he would "model" good manners for her and proceeded to deliver an apology. Then, he left. Soon M. D. and F. J. reported to their cheerleading coach that Brooks had expressed interest in taking them to the beach for a photo shoot. The coach passed this allegation along to the administration, which in turn called the school police and the State Attorney's Office. The prosecutor declined to press criminal charges against Brooks; the Office of Professional Standards ("OPS") requested a personnel investigation. Detective Pedro Valdes conducted the investigation. He interviewed M. D., F. J., Brooks, and Trust Counselor Patricia Manson (who disclaimed personal knowledge of the events in dispute). The detective evidently did not believe (or at least gave little weight to) Brooks's denial of wrongdoing, for he determined that the students' statements were sufficiently credible to support the conclusion that Brooks had violated a School Board rule prohibiting improper employee/student relationships. The detective's report announcing that this charge had been "substantiated" was released in July 2004. Having effectively been found guilty by the detective, Brooks was summoned to a conference-for-record ("CFR"), which was held on August 11, 2004. There, Brooks was given an opportunity to deny the charge (but not to confront M. D. and J., whose statements comprised the "evidence" against him). He failed to persuade the administrators that the detective had reached the wrong conclusion. The administrators issued several directives to Brooks, including the following: Refrain from contacting anyone involved in this investigation at any time. Refrain from inappropriate contact and/or comments with students. The Alleged Harassment On August 25, 2004, F. J. came to school dressed inappropriately, in a short skirt and tank top. At the beginning of second or third period, a security monitor named Frantzy Pojo noticed that F. J. was in violation of the dress code and attempted to remove her from class. The teacher refused to let F. J. leave with the security monitor. Faced with the teacher's obstructiveness, Mr. Pojo called Brooks, the assistant principal in charge of discipline whose portfolio included dress code enforcement. Mr. Brooks came to the classroom and spoke with the teacher. He asked that the teacher instruct F. J. to put on a jacket to cover up. The teacher——and F. J.——complied. The very next day, Mr. Pojo spotted F. J. and saw that she was, once again, not dressed appropriately. Mr. Pojo called Brooks to handle the situation. Brooks found F. J. in the library and agreed that she was in violation of the dress code. He observed that two or three other girls were also dressed inappropriately. Mr. Pojo and Brooks escorted these girls to the SCSI room and left them there. Brooks instructed the teacher-in-charge not to suspend the students but rather to let them call their parents and request that appropriate clothes be brought to school. F. J. called her mother and complained that Brooks was harassing her. F. J.'s mother became angry and arranged to meet with the principal, Deborah Love, that afternoon. When F. J., her mother, and Ms. Love met as scheduled, F. J. accused Brooks of having followed her to classes and singled her out unfairly for discipline in connection with the dress code violations. At Ms. Love's request, F. J. submitted written statements concerning the events of August 25 and August 26, 2004.3 Ms. Love believed F. J. and apparently had heard enough. Without investigating F. J.'s allegations or even asking Brooks to respond to them, Ms. Love prepared a memorandum, dated August 27, 2004, in which she charged Brooks with insubordination. Specifically, Ms. Love alleged that Brooks had violated the directive, given at the recent CFR, to refrain from contacting anyone involved in the investigation stemming from the allegation that Brooks had made inappropriate remarks to M. D. and F. J. On or about August 27, 2004, Ms. Love ordered Brooks not to return to campus but instead to report to an alternate worksite pending further action on the charges against him. At its regular meeting on December 15, 2004, the School Board voted to accept the recommendation of OPS that Brooks be suspended without pay for 30 workdays. Ultimate Factual Determinations Brooks's conduct was not shown to have been outside the bounds of accepted standards of right and wrong. He is therefore not guilty of immorality, as that offense is defined in Florida Administrative Code Rule 6B-4.009(2). Brooks did not fail to make a reasonable protective effort to guard either M. D. or F. J. against a harmful condition; had he neglected such duty, Brooks could have been disciplined for misconduct in office. Brooks did not intentionally expose either M. D. or F. J. to unnecessary embarrassment or disparagement; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not harass or discriminate against M. D. or F. J. on the basis of any improper consideration, such as race, color, or religion; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not exploit a relationship with either M. D. or F. J. for personal gain or advantage; had he done so, Brooks could have been disciplined for misconduct in office. Brooks did not constantly or continually refuse intentionally to obey a direct and reasonable order, which willful defiance, had he shown it, would have constituted "gross insubordination" under Florida Administrative Code Rule 6B- 4.009(4). Brooks did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Brooks did not violate School Board Rule 6Gx13-4-1.09, which prohibits unacceptable relationships and/or communications with students. Accordingly, it is determined that Brooks is not guilty of the charges that the School Board has brought against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Brooks without pay and (b) awarding Brooks back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2005.
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract and Immediate Suspension without Pay dated March 27, 2013.
Findings Of Fact The Duval County School Board (School Board) is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Ms. Beverly L. Howard has been employed by the Duval County School Board as a classroom teacher for over 32 years. She went to Paxton Senior High School and then to Florida A & M University, graduating with a bachelor of science degree in elementary education. The School Board seeks to terminate Ms. Howard’s employment. Her substantial interests are affected by this intended action. Ms. Howard has a history of past misconduct and disciplinary action. While teaching at Hyde Grove Elementary School in 1992, Ms. Howard received three memoranda from Principal Theresa Stahlman concerning her interactions with parents and students and her teaching performance. Among other comments, Ms. Stahlman noted that Ms. Howard needed significant improvement to “show sensitivity to student needs by maintaining a positive school environment.” Ms. Stahlman testified that Ms. Howard exhibited a “very loud punitive behavior management style” and that she wanted to help Ms. Howard improve. A note at the end of one memorandum indicates that Ms. Howard had said that she did not need cadre assistance and that she would request assistance if she needed it. A note on another memorandum indicates that Ms. Howard refused to sign it. Ms. Howard testified at hearing that the things Ms. Stahlman wrote in the three memoranda were lies. Ms. Howard said that Ms. Stahlman was a racist and was prejudiced. Ms. Stahlman gave Ms. Howard an unsatisfactory evaluation. The next year, Ms. Howard got an option to go to another school. On March 8, 1995, a conference was held between Ms. Howard, a parent of one of her students, and Principal Debbie Sapp. The student had alleged that Ms. Howard had pushed her down. Principle Sapp noted in a memorandum that Ms. Howard “vehemently denied this, in an extremely rude and unprofessional manner” and said that she would never put her hands on a student. Principal Sapp advised Ms. Howard that being argumentative and defensive with parents was unacceptable and only made bad situations worse. On March 10, 1995, Principal Sapp was making morning classroom checks when she overheard Ms. Howard repeatedly yell at a student, “Get out of my classroom.” Ms. Howard’s final comment was “Get out before I throw you out.” Principal Sapp then entered the classroom and saw a student standing at her desk, about to leave. Ms. Howard said that the student had been misbehaving all morning. Principal Sapp told the students that she did not expect teachers to yell at them or threaten them and admonished them to behave. In a memorandum to Ms. Howard, Principal Sapp wrote that Ms. Howard needed to work on controlling her temper, noted that Ms. Howard’s classroom was frequently in disarray, and stated that yelling at students and threatening them was inappropriate behavior that only made things worse. Ms. Howard testified at hearing that when Ms. Sapp came down the hall and heard a teacher yelling, Ms. Sapp never came face-to-face with her, and that it could have been the voice of another teacher which Ms. Sapp heard. On May 27, 2003, the Office of Professional Standards investigated a complaint from a student’s parent that Ms. Howard had grabbed the student by the arm, choked him, and caused him to vomit. The student said that Ms. Howard dug her fingernails into his arm when he got up to retrieve a paper that another boy had taken from his desk. He said that her nails were hurting him, so he began hitting Ms. Howard. He then said that she put her hand around his throat and made him choke. He said he felt sick and threw up. Ms. Howard denied the accusation. She stated that the student was in a fight with a female student in her class and that she separated them. She said she asked the female student to sit down and attempted to gain control of the male student. Ms. Howard showed the investigator a scratch on her thumb that she said was made by the student. She stated that after she assisted the student to his desk he began gagging and attempting to vomit. She said that only saliva came up and she asked him to go to the bathroom to clean himself up. The investigation was closed as “unable to prove or disprove.” The Office of Professional Standards investigated allegations of unprofessional conduct against Ms. Howard on April 28, 2004. The mother of student T.J. had left a message with Ms. Howard to call her to talk about scratches on T.J.’s arm. Ms. Howard called the mother at her workplace, University of Florida Jacksonville Physicians. The mother asked Ms. Howard if she knew where the scratches came from, and Ms. Howard said they came from an incident in the library. The mother could then hear Ms. Howard asking T.J. and another girl in her class about what had happened. The other girl said that T.J. had done things to cause the incident. Ms. Howard immediately relayed to the mother that the incident had been T.J.’s fault. The mother became upset, realizing that Ms. Howard had not been present and yet was completely accepting the other girl’s version of what had happened. The mother then told Ms. Howard that this was not right and that she would go to see the principal. Ms. Howard told the mother that she could talk to whomever she wanted to, and then put the phone down as if intending to disconnect the call, but the mother could still hear what was going on in the classroom. Ms. Howard said, “Class, isn’t T.J. a nasty little girl?” The class responded, “Yes, ma’am.” The mother heard Ms. Howard say, “Class, don’t I send home paperwork?” The children responded, “Yes, ma’am.” The mother could hear T.J. trying to ask Ms. Howard a question, and Ms. Howard saying, “Go sit your behind down.” At this point the mother became angry that Ms. Howard was verbally abusing her child in front of the other children. She asked her “lead” at her workplace to continue to monitor the call. She immediately left, and drove directly to the school to talk to the principal, Ms. Blackshear. The investigator received statements from the mother’s lead and several co-workers which contained additional statements Ms. Howard made to the students. Ms. Howard said: [T.J.] get out of my face, you can go home and tell your mama all of those lies. Yeah, she is probably going to want to have a conference with Ms. Blackshear. Go ahead and get out of my face with your nasty disrespectful face. Ms. [T.J.] sit down, I have already told your mama that you will be retained in the second grade. You want to be all that, well I can be more. The investigator determined that the phone number shown on the workplace caller ID feature was the number of Ms. Howard’s cell phone. When interviewed by the Office of Professional Standards, Ms. Howard denied making the above comments regarding T.J. She stated that T.J. had been a problem all year and that the student’s mother “got an attitude” with her. Ms. Howard did admit she placed a “shelter kid,” who was a juvenile inmate, outside of her classroom without supervision “for a few minutes.” She stated that everyone in the school knew it was a bad class, but she was being blamed. Ms. Howard testified at hearing that the lead and co-workers of T.J.’s mother were lying when they made statements about her interactions with the students in her classroom. She said she put the phone in her purse, and the purse in her desk drawer, and that no one could have heard any conversations in the classroom. Student T.J. was then reassigned from Ms. Howard’s class. At hearing, T.J. testified that when she was in Ms. Howard’s third-grade class, she “got her card flipped to pink” on a daily basis (this color indicating the worst conduct). She admitted that she deserved this sometimes, but not all the time. She testified that she remembered that Ms. Howard used to pinch her arm when she was “in trouble.” T.J. remembered that Ms. Howard called her names, saying she was nasty, disrespectful, and in need of home training, in front of the other students. She testified that she had problems in Ms. Howard’s class because she needed to go to the bathroom frequently and Ms. Howard would only let her go once a day. She would sometimes wet her pants. She then would have to wait until she was allowed to go to the office to call her mother to get clean clothing. On May 17, 2004, the Duval County School Board administered discipline to Ms. Howard for her interactions with her class as reported by T.J.’s mother and her co-workers. She was issued a written reprimand, suspended for five days without pay, and required to attend an anger management session. Ms. Howard was informed that she had been given the opportunity of constructive discipline instead of a reduction of pay or dismissal to afford her progressive discipline, and that any further improper conduct on Ms. Howard’s part would subject her to more severe disciplinary action. The written reprimand set forth Florida Administrative Code Rule 6B-1.006(3)(a) in its entirety, with its requirement that she “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” Ms. Howard signed a Receipt and Acknowledgement that she received a copy of the reprimand. On September 6, 2012, shortly after the start of the 2012-2013 school year, Louis Sheffield Elementary School held an open-house night. Ms. Lindsey Connor, assistant principle at the school, credibly testified to Ms. Howard’s response to a parent’s assertion that Ms. Howard had refused to allow her son, T.S., to go to the bathroom and that he had wet his pants in her class. Ms. Howard said to the mother of T.S., “What seems to be the problem?” in a harsh tone. After some discussion, Ms. Howard said something to the effect of: “Your son is a liar. He lies. He doesn’t need to be in my classroom anymore.” Ms. Howard denied that she ever told the mother of T.S. that her child was a liar. She stated that that would have been unprofessional. Ms. Howard testified that Ms. Connor’s statement that this had happened was a lie and that Ms. Connor was always taking the parents’ side. Ms. Howard testified that she never prevented a child from going to the bathroom and that T.S. just wet himself. Ms. Conner received numerous complaints about Ms. Howard from parents of Ms. Howard’s kindergarten students. Ms. Connor received six requests from parents to remove their children from Ms. Howard’s class. Ms. Connor testified that this was an unusually high number of requests and that she was concerned. J.F. was a student in Ms. Howard’s kindergarten class who exhibited behavioral problems. She would do acrobatic flips in the classroom and would tie her shoelaces to the chairs. She appeared to be hyper-active and would fall out of her chair when she was at her seat. J.F. would go all around Ms. Howard’s classroom and did not listen to Ms. Howard. She would back-talk Ms. Howard and showed her no respect. J.F. was frightened of Ms. Howard and often cried. Ms. Howard testified that she wanted to get specialized treatment or placement for J.F. but that the parents would not agree. In response to a complaint from the parents of J.F., Ms. Connor asked Ms. Howard to prepare a chart on which stickers could be placed to document J.F.’s progress in school. Ms. Connor asked Ms. Howard to bring the chart to a meeting to discuss how to help J.F. advance. Ms. Howard did not bring anything to the meeting and said nothing about how she might be able to help J.F. The mother of W.B. testified that her son was in Ms. Howard’s kindergarten class and that he loved Ms. Howard as a teacher. On one occasion in Ms. Howard’s classroom, W.B.’s mother observed Ms. Howard pull J.F. by the arm over to her when J.F. had gotten into trouble. The mother stated that J.F. appeared scared and she would not have liked Ms. Howard to do that to her child. In response to a call from the parent of C.B., a student in Ms. Howard’s class, Ms. Connor suspected that Ms. Howard may have hit one or more of her kindergarten students with a book. In a discussion with the Professional Standards office, Ms. Connor was told that she should investigate, advise the teacher, and contact the Department of Children and Families. Ms. Conner conducted interviews with students assigned to Ms. Howard’s class in the presence of a witness and took notes as to what the students told her. She testified that she brought the students into her office individually, that they didn’t know beforehand what she was going to talk to them about, and that they had no opportunity to collaborate or coordinate their statements. After conducting interviews with the children, Ms. Connor advised Ms. Howard of an allegation that Ms. Howard struck J.F. on multiple occasions with a book. Ms. Howard responded that she would not provide a written statement because she had never hit a student. Ms. Connor notified the Department of Children and Families. The report and testimony of the child protective investigator indicated that J.F was open, happy, and smiling during the “non-threatening” portions of the interview, but the investigator testified that when asked about Ms. Howard’s class, J.F. became nervous, chewed on the ends of her clothes, began to fidget, and asked if Ms. Howard was going to know what J.F. was saying. The investigator interviewed several students in the class. The report indicated that J.F. was free of suspicious marks or bruises. When the investigator interviewed Ms. Howard, she denied ever hitting J.F. with a book or slamming her down in her seat when J.F. was misbehaving. Ms. Howard indicated that she was close to retirement and would not hit a child. Student J.F. testified at hearing that she did not like Ms. Howard as her kindergarten teacher because Ms. Howard “did not want to be nice to me.” She testified that Ms. Howard “hurt me.” She testified that Ms. Howard “hit me on the leg with a book.” She testified that Ms. Howard hit her with the book because Ms. Howard had told her to get down on the carpet. She held up five fingers when asked how many times Ms. Howard had hit her. During cross-examination, she testified that she had been hit five times in succession on a single occasion. On redirect, she testified that she had been hit on five separate days. Student K.D., aged six, testified that J.F. did bad things in Ms. Howard’s class. He testified that J.F. put her head in her shirt. He testified that the class would sit on the carpet every day for a little while. He testified that sometimes J.F. would stay on the carpet when she was supposed to go to her seat. He said that J.F. got spanked on her back by Ms. Howard with a book. He testified that Ms. Howard hit her on more than one day, and when asked how many days, said “sixteen.” He did not know how he knew it was 16 days. He later testified that Ms. Howard hit her “sixteen times every day.” The father of student J.C.M. testified that he transferred J.C.M. from a Montessori school to Louis Sheffield Elementary because his wife was going to have another baby and that school was closer to their home, which would mean a shorter drive for her. The first day that J.C.M. went to Ms. Howard’s class was February 11, 2013. The parents immediately began receiving “agenda notes” from Ms. Howard saying that J.C.M. was not behaving well. The father testified that J.C.M. did not want to go back to Ms. Howard’s class the next few days and would cry when they dropped him off. The father testified that since J.C.M. had never been a discipline problem and had done well at his prior school, he sent a note in after the second day to schedule a conference with Ms. Howard. The father testified that on the second or third day, J.C.M. came home complaining that his arm hurt, but when questioned as to what had happened, J.C.M. gave different stories. First he said a lady had grabbed his arm in the classroom. When asked “What lady?” J.C.M. said that it was a friend, another student. Later, he said that the injury had happened on the playground. Still later, he said that the injury was caused by his grandfather. The father was confused by these different answers. When the parents received no response to the request to meet with Ms. Howard, the parents went to the school and met with Ms. Connor, who advised them that Ms. Howard was no longer in the classroom, but she did not tell them why. Since J.C.M. now had a new teacher, his parents did not ask that he be moved to another class. Student J.C.M., aged six, testified that he had been moved into Louis Sheffield Elementary in the middle of the school year and only had Ms. Howard as his teacher for a few days. J.C.M. testified that on one of those days, “I was in the door and then I -- I didn’t kicked it. I didn’t kicked it, I touched it with my feet.” He testified that Ms. Howard grabbed him and put him by her desk or table and that his “arm hurted for a little bit –- a little bit long.” He testified that he saw Ms. Howard hit J.F. on the head with a book because she was not writing when she was supposed to be writing. He testified that on a later day Ms. Howard also hit him on the head with a book when he was on the rug, but he forgot if he was supposed to be on the rug or not. Ms. Howard testified at hearing that she never put her hands on any of the students. She did not know why the children would say that she had, except that they had been coerced to say it. She testified that she had been under a doctor’s care and that she had had back surgery and that her medical condition affected her ability to lift or throw items. She testified she could not bend over or lift heavy objects because it probably would have torn her sutures. She testified that she had been under a doctor’s care since January 30 and that it took her until February 14, the day she was reassigned, to recover. She testified that not only was it not in her character to hit a child, she was physically incapable of doing so at the time. The testimony of Ms. Connor that the kindergarten children had no opportunity to coordinate their statements and that they did not even know in advance why she wanted to talk to them is credited. Ms. Connor’s notes as to what each child told her supplement and corroborate the testimony of the children later at hearing. Although the direct testimony as to Ms. Howard’s actions all came from these young children, they were capable of observing and recollecting what happened in their kindergarten class and capable of relating those facts at hearing. Their responses to questions at hearing showed that the children had a moral sense of the obligation to tell the truth. There was no objection from Respondent as to the children’s competency, and they were competent to testify. These young children’s accounts of events were sufficiently credible and corroborative to prove that Respondent struck J.F. with a book on multiple occasions. There was credible testimony that J.F. was struck on her legs with a book when she would not get down on the carpet as she was supposed to, was struck on her back with a book when she would not get up off of the carpet as she was supposed to, and was struck on the head with a book when she would not write as she was supposed to. These physical contacts took place in front of other students. While the exact number of times she was struck was not clear, the testimony that it was deliberately done and was constantly repeated is credited. Ms. Sonita Young is the chief human resource officer of Duval County Schools. She reviewed Ms. Howard’s personnel file in making her recommendation to the Superintendent that Ms. Howard be suspended without pay pending termination. Ms. Howard’s employment record, including both performance issues and disciplinary issues, was considered in determining the appropriate recommendation to be made to the Superintendent and ultimately to the Board. A Notice of Termination of Employment Contract and Immediate Suspension without Pay from her position as a kindergarten teacher at Louis Sheffield Elementary was presented to Ms. Howard on March 27, 2013. The Notice alleged that Respondent had violated certain provisions of the Code of Ethics, contained in Florida Administrative Code Rule 6A-10.080, and a Principle of Professional Conduct for the Education Profession in Florida, contained in rule 6A-10.081. Ms. Howard challenged the grounds for her termination and sought a hearing before an administrative law judge with the Division of Administrative Hearings. The rules cited above were adopted by the State Board of Education and relate to the public schools or the public school system. Rule 6A-10.081 was renumbered, but is substantively identical to the rule cited to Ms. Howard earlier in her May 17, 2004, Written Reprimand. Ms. Howard was well aware of her responsibility to protect students from conditions harmful to learning or to students’ mental or physical health or safety, because she had previously been disciplined for failing to do so. Ms. Howard’s actions in striking J.F. with a book failed to protect her students from conditions harmful to their mental and physical health and safety in violation of rule 6A- 10.081. Ms. Howard’s constantly repeated actions in striking J.F. constitute persistent violation of the rule and are cause to terminate her employment as a teacher. Ms. Howard’s deliberate actions in striking J.F. constitute willful refusal to obey the rule and are cause to terminate her employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment of Beverly L. Howard. DONE AND ENTERED this 15th day of October, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2013.
The Issue Whether Respondent's teaching certificate should be revoked, or otherwise disciplined, on grounds that he is guilty of engaging in grossly immoral conduct, as alleged.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: The COUNCIL alleges that, on or about April 3, 1979, PAGE engaged in a lewd, lascivious, immoral, and indecent act in the men's restroom of the St. Johns Marina, Jacksonville, Florida, by touching Officer Michael Legan in an unnatural manner; PAGE denies it. (Pre-trial Stipulation, Petition for Revocation, Testimony of Page.) The men's bathroom where the alleged incident took place is adjacent to the St. Johns Marina. The marina is adjacent to the St. Johns River, and across the street from the Alexander Breast Planetarium. A park area nearby is used by groups of children and other visitors to the planetarium. Prior to the time of the incident in question, the Jacksonville Sheriff's Office had received complaints from people at the planetarium, and nearby park visitors, concerning indecent exposure-type incidents occurring in the Marina's bathroom and surrounding area. (Testimony of Legan.) On April 3, 1979, because of this history of reported indecent exposure incidents, Officer Michael Legan, attached to the Morals Squad of the Jacksonville Sheriff's Office, had the Marina's men's bathroom under surveillance for possible homosexual or indecent exposure-type criminal violations. He was accompanied by his partner, Detective Sam Durden, who remained outside the bathroom. At approximately 3:30 or 4:00 p.m., in the afternoon, Officer Legan was wearing civilian clothes and standing inside the bathroom, alongside the wall directly across from a partition which separates the toilets from the urinals. At the time, he was trying to determine whether an unidentified individual using the toilet was there "for a legitimate purpose or whether or not he was attempting to expose himself." (Tr.20) 2/ Shortly thereafter, PAGE entered the bathroom and walked directly to the urinal closest to the door, located across from where Officer Legan was standing. At the same time, Officer Legan moved toward the door, and stopped alongside the wall almost directly behind PAGE. While standing at the urinal, PAGE made what appeared to be a rubbing motion with his hands in his genital area, and glanced over his shoulder in the direction of Officer Legan. This activity continued for about 30 seconds; then PAGE turned 90 degrees to his left, towards the toilet area and away from the bathroom door, held his penis in his hand and rubbed it with a masturbating-type motion. PAGE continued this activity for approximately 20 seconds, while he looked at Officer Legan, then looked down. While Officer Legan observed this activity at a distance of from seven to eight feet, no conversation took place. PAGE then replaced his penis in his pants, started to walk toward the door, and made a motion with his head which Officer Legan understood as a request to follow. In response to what he discerned as PAGE's nonverbal request, Officer Legan followed PAGE toward the door, with the intent to place him under arrest after exiting the bathroom, where Dective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, which separates an inner bathroom door from another bathroom door leading to the outside. As Officer Legan followed PAGE out of the inner bathroom door into the foyer area, PAGE stopped and said, "How are you doing?" Legan answered "Okay," and started to reach into his pocket for his badge. Simultaneously, PAGE grabbed and squeezed Legan in the groin area, and said, "It looks like you're okay." Officer Legan then identified himself as a police officer, placed PAGE under arrest, searched him, gave him the Miranda warnings, and took him to jail for booking. The findings indicated in paragraphs 4(a) through (c) above are, in the main, determined from the testimony of Officer Legan. Respondent PAGE denied, under oath, engaging in the activity described by Officer Legan. It is concluded that Officer Legan's testimony is more worthy of belief and should be accorded greater weight than the conflicting testimony of PAGE. Officer Legan testified with the detached, unbiased manner of a professional law enforcement officer; his narrative testimony was clear, positive, logical, and internally consistent. His prior testimony, by deposition, introduced into evidence by PAGE, is also consistent with and supports his testimony given at final hearing. No significant defects were shown in his capacity, ability, or opportunity to observe, remember, or recount the matters about which he testified. In comparison, PAGE is a teacher accused of grossly immoral conduct justifying suspension or revocation of his teacher's license. As the accused, he has an obvious bias and interest which affects his credibility. Officer Legan's lack of any discernible bias of interest, coupled with the failure to impeach him or discredit his testimony in any significant way, renders his testimony persuasive. (Testimony of PAGE, Legan; R.E. 3.) All Court and Sheriff's Office records pertaining to PAGE's arrest for the above-described conduct were expunged on August 28, 1979, by order of the County Court of Duval County, Florida. In order to qualify for such statutory expungent, the Court necessarily determined that PAGE had never been convicted of a criminal offense or municipal ordinance violation. The effect of expungent is to restore the accused, in the contemplation of the law, to the status he occupied before the arrest. (R.E. 1.) PAGE'S PERFORMANCE AS A TEACHER PAGE has been a competent and effective elementary school teacher in the Duval County School System since 1972. His area of particular expertise has been teaching disadvantaged children reading skills through structured, federally sponsored, reading programs. He has consistently been rated by his supervisors as a "satisfactory" teacher--the highest rating possible. Principals of the schools where he has taught have commended him for his knowledge and performance in teaching remedial reading, good rapport with students, and his ability to understand deficiencies of disadvantaged children and enhance their self-concept. Because of his skills, he was selected to operate the Hoffman Laboratory, a structured reading program for disadvantaged children, at Oceanway Elementary School, Jacksonville. Under his leadership, the Laboratory has been so effective that teachers from other counties have visited to observe and learn. (Testimony of Baker, Sandberg; R.E. 3,7.) PAGE'S CHARACTER PAGE, honorably discharged from the U.S. Marine Corps in 1960, has been an active and responsible ember of his community and the Baptist religion for many years. His church pastors know him as a moral, honest, and religious man, a person of flawless reputation and integrity. He has been married for 32 years, led a normal family life, and successfully raised three children. The charges against him are not in keeping with his wife's view of his character. (Testimony of Evelyn Page; R.E. 4,5.) The policy of the Duval County School Board is to ensure that teachers accused of sexual misconduct are not left in a position where they have contact with children. The Board perceives that such action, on its parts, is necessary in order to provide assurances to parents that their children will be safe. The ability of PAGE to effectively continue to teach at Oceanway Elementary School has been reduced, due to the expected reaction of parents and staff members to the charges against him. (Testimony of Gary Simmons, Sandberg.) To the extent that proposed findings of fact submitted by the parties have not been incorporated herein, they are rejected as being irrelevant to the decision reached, or unsupported by the evidence.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's teacher's Certificate No. 137251, be SUSPENDED for two (2) years commencing upon entry of the Final Order in this case. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980.
The Issue The issue is whether Petitioner has just cause to suspend Respondent without pay for thirty days for misconduct in office, as provided in Florida Administrative Code Rule 6A-5.056(2) and School Board Policies 3210, 3210.01, and 3213, for using profanity toward a student and engaging with the student's parent in a violent confrontation with profanity and threats.
Findings Of Fact For the 2015-16 school year, Petitioner employed Respondent as a physical education teacher at Homestead Middle School. On May 27, 2016, Respondent and another physical education teacher, George Malvestutl, had instructed the students to leave the girls' locker room after physical education class. About 20 minutes later, the teachers saw a student hiding in the locker room. The teachers entered the locker room and found three students still in the locker room without permission. When Respondent directed the students to leave the locker room, one or more of the students became belligerent and yelled at him in defiance. Mr. Malvestutl called security to escort the girls out of the locker room. About one minute after Respondent had first engaged with the students and before security could arrive, the students left the locker room, but the situation escalated when the teachers directed the students to report to the office. At this point, the students used profanity toward Respondent, and one of them threatened to call her father to come to school and "kick [Respondent's] ass." After several minutes, they left the area and walked toward their class in direct defiance of the teachers' directive to report to the office. Respondent did not have time to report the incident to the office because he had a class to teach. But, about 30 minutes after the confrontation had ended, Respondent received a call from the principal's secretary directing Respondent to come to the office. When he entered the office, the secretary pointed him to a man who was waiting to see Respondent. Without introducing himself or informing himself about what had happened, the man immediately threatened to "kick [Respondent's] ass" and said something about his daughter. Respondent answered that the man needed to learn about what had taken place and walked away from the man, leaving the office. The man followed Respondent into the hallway and, standing about ten feet from Respondent, continued to threaten Respondent, who suggested that the daughter was misbehaving due to the misbehavior of the father, who was behaving "like an idiot," Respondent added. The exchange was briefly heated, although probably more while in the office than in the hallway. The exchange in the hallway lasted no more than one minute, and the exchange in the office was even briefer. At no time did either man place a hand on the other. Eventually, the angry father calmed, as he realized that his daughter had not told him the entire story. During the exchange in the hallway, the assistant principal entered the hallway, but did not say anything and quickly retreated to his office to call the police, although the entire incident had ended before the police arrived on the scene. The principal entered the hallway and, at one point, blocked the father's path toward Respondent, but the principal did not say anything either. After the incident, Respondent asked the principal if he could go home for the day, but the principal asked him to remain if he could, and Respondent agreed to remain at school. Later that day, the principal visited Respondent and asked him if he was okay. Respondent replied that he was fine, and the principal smiled. On direct, the principal testified that Respondent uttered profanity during his confrontation with the parent-- specifically using the "f" word several times and the "n" word once. Respondent, who is black, denied the use of any profanity, including these words. The principal's credibility was undermined by the fact that he omitted these important details when he gave his statement to the school police a few days after the incident. Based on the testimony that has been credited, Petitioner has failed to prove that Respondent mishandled in any way the two exchanges with the angry parent, who clearly either misunderstood what his daughter had told him or was misled by his daughter.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding that the 30-day suspension of Respondent without pay lacked just cause and, pursuant to section 1012.33(6)(a), reinstate Respondent, if necessary, and pay Respondent his back salary. DONE AND ENTERED this 7th day of July, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2017. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Kim M. Lucas, Esquire Miami Dade County Public Schools School Board Attorney's Office 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Alberto M. Carvalho, Superintendent Miami Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
The Issue The issues are whether Respondent, William Doran, committed the acts alleged in the Statement of Charges and Petition for Ten-Day Suspension Without Pay, and, if so, the discipline to be imposed.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at SMS, a public school in St. Lucie County, Florida, pursuant to a professional services contract. Respondent has been employed by the School Board for approximately eight years. Respondent most recently provided individualized instruction and assistance to students with individualized education plans. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the St. Lucie Classroom Teachers’ Association. Lydia Martin, principal of SMS, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year On November 8, 2010, Respondent was counseled by Principal Martin for discourteous and disparaging remarks to students causing them to feel unnecessary embarrassment. Students and parents reported that Respondent made comments in the classroom including “the Bible is crap and we should not believe it,” told students they could not work in groups because they “would just bullshit,” called a student “stupid,” and referred to a group of African-American students as the “black coffee group.” Parents also expressed concern that Respondent discussed prostitution and told students that, in some countries the younger the girls are, the better it is considered because they have not lost their virginity. Respondent denied saying that the Bible is “crap” but admitted telling students that he did not believe in it. Respondent denied calling a student stupid but admitted that he told a student certain choices may be what a “not so smart” person would do. Respondent admitted to referring to a group of black students as a “coffee klatch,” but denied any reference to race or ethnicity. Respondent admitted discussing prostitution in the context of human rights and his personal observations of sex trafficking while serving in the military in East Germany. Principal Martin provided Respondent with a written Summary of Conference that stated, “In the future, do not make comments to students that may cause them embarrassment or that are unprofessional. My expectation is that you will treat students with respect and follow the district guidelines under 6.302 Employee Standards of Conduct and Code of Ethics for Educators.” On May 2, 2011, Principal Martin gave Respondent a Letter of Concern for making comments to a student that caused embarrassment to the student when Respondent stated that, “somebody cried about not getting their stupid PTO FCAT Goodie bag” and that “they were filled with cheap candy.” The daughter of the PTO president was in the class. The 2011-2012 School Year During the fall of 2011, Respondent was accused of inappropriately touching students.1/ As a result, on December 5, 2011, Respondent was removed from the classroom at SMS and placed on Temporary Duty Assignment at the School Board district office pending an investigation into the allegations. In a letter from Maurice Bonner, director of personnel, dated December 14, 2011, Respondent was directed not to engage witnesses, their parents, or potential witnesses during the open investigation. While he was working at the district office, two co- workers of Respondent overheard Respondent contact the parents of one of the student witnesses involved in the investigation by telephone to discuss the investigation. Also, during the investigation, it was discovered that Respondent had taken pictures of students when they were misbehaving in his class as a means of disciplining those students. On February 13, 2012, Principal Martin provided Respondent a Letter of Reprimand for the violation of the administrative directive (not to contact witnesses and parents during a pending investigation) and inappropriately disciplining students. This Letter of Reprimand reminded Respondent of his previous counseling and Letter of Concern and notified Respondent that his failure to follow the prior directives or violation of any other School Board policy would result in more severe disciplinary action being taken against him. In May 2012, Respondent received a three-day suspension without pay for embarrassing students. Respondent is alleged to have announced a student’s name in class and stated that he (Respondent) was “just wasting red ink” by grading the student’s paper. Respondent does not deny the statement, but claims he muttered it under his breath, and it was overheard by several students. Respondent embarrassed another student by sharing personal information about her family with the class. A student’s mother had privately discussed with Respondent the fact that her daughter might act out in class due to the distress she was experiencing as a result of her parents’ divorce. During a classroom discussion about families, this student made a comment that she had a “normal” family. Respondent said to the student, in front of the class, “If you’re so normal, where is your father?” Respondent admits this was inappropriate behavior on his part. The 2012-2013 School Year On May 3, 2013, Respondent was in the classroom of another teacher for the purpose of providing additional teaching assistance for several students. On this date, the usual classroom teacher was absent, and a substitute teacher was present. While walking around the classroom, Respondent observed two students, M.M. and A.L., engaged in a game of “slaps,” in which both students tried to hit each other’s hands. Respondent directed M.M. to stop and asked why he was doing the game during class time. M.M. responded that he was trying to cheer up A.L., it felt good, and they liked playing the game. At this time, Respondent was approximately eight to ten feet away from M.M. who was sitting at a desk. Respondent told M.M. that he didn’t care if it felt good for M.M. to “jump off a bridge,” it was not to go on in the classroom and to get back to work. M.M. asked Respondent what he meant and the two began to argue. Respondent approached M.M. and bent over him while M.M. remained seated at his desk. Respondent testified that he closed the gap between him and M.M. when he felt M.M. told him to shut up by saying “get out of my face.” Respondent stated, “At that point I decided I wasn’t going to let him push me around and I decided to engage him.” The credible testimony from several of the student witnesses was that Respondent approached M.M. and stood over him and that M.M. repeatedly asked Respondent to “please, get out of my face” and to leave him alone. M.M. also cursed and used a racial slur directed at Respondent.2/ Respondent told M.M. to get up and get out of the classroom. When Respondent did not move away from looming over M.M., M.M. said something to the effect of “I don’t want to do any of this.” M.M. stood up, and he and Respondent were face to face, only a few inches apart. M.M. told Respondent that he was a grown man and that he was “acting like a bitch.” Respondent repeatedly mocked M.M., yelling in his face, “Come on big man-- What are you going to do about it, hit me?” and told M.M. to hit him because it would “make my day.” Respondent called M.M. a coward several times when M.M. refused to hit Respondent and backed away. While this was going on, the other students in the classroom believed that Respondent and M.M. were going to have a physical fight, and they stood up, pushed the desks and chairs back, and got out their cell phones to take photos and video. Several of the students began screaming and yelling.3/ M.M. left the classroom and continued to curse at Respondent as Respondent followed him to the Dean’s office. During this altercation, the substitute teacher did not intervene or attempt to help or contact the SMS office. Respondent admits that, once M.M. told Respondent to “get out of his face,” Respondent did nothing to de-escalate the situation. To the contrary, Respondent intentionally escalated the altercation. According to Respondent, “He [M.M.] needed to be shown you can’t tell an adult to shut up.” Respondent testified that he believed that he was teaching M.M. a “life lesson”-–that “you can’t engage an adult and expect to get away with it.” SMS has a protocol for handling belligerent students in the classroom. Teachers receive training at the beginning of each school year regarding the difference between classroom managed behaviors and office managed behaviors. Teachers are trained not to engage a belligerent student but rather to use the buzzer which is tied to the intercom or telephone, available in every classroom, to notify the main office of the situation. In response, someone from the trained management team will come to the classroom to retrieve the student and bring them back to the Dean’s office. As explained by Principal Martin, the purpose of sending an adult from out of the classroom to retrieve a disruptive student is to minimize the possibility of harm to either the student, teacher, or other students, and to allow a “cooling off period” while the misbehaving student is escorted to the Dean’s office. During the altercation with M.M., Respondent made no effort to use the buzzer or the telephone or ask anyone else to notify the office of the escalating situation. Respondent was aware of the protocol but chose to ignore it. According to Respondent, “[M.M.] wanted to intimidate me and he failed and I let him know about it.” Respondent was purposely confrontational and testified that he wanted to show M.M. that Respondent “was not going to back down.” Respondent disregarded the protocol because he believed it would be ineffective and he wanted to teach M.M. a “humility lesson.” Respondent’s explanation, that he thought using the buzzer or telephone would be ineffective because sometimes the buzzer does not work or he was blocked from reaching the buzzer by M.M., was not supported by credible evidence. Further it was directly contradicted by Respondent’s explanation that he didn’t contact the office because M.M.’s behavior problems likely started in elementary school and that at this point, M.M. was not responsive to “conventional means of disciplining students.” While the undersigned is sensitive to the difficulty faced by teachers when dealing with confrontational and unruly students, no rational justification was provided for Respondent’s extreme and outrageous act of attempting to engage M.M. in a fight and labeling him a coward in front of his peers. Respondent’s actions were an unwarranted attempt to bully and belittle a middle school student. In May 2013, Respondent received a letter from then Superintendent Michael Lannon advising Respondent that he was recommending him to the School Board for a ten-day suspension without pay. During the School Board’s investigation and at the final hearing of this matter, Respondent expressed no remorse regarding his actions towards M.M. and testified that, despite knowing his actions constitute a violation of School Board policies, he would do the same thing again. Respondent received all the necessary steps of progressive discipline required by the collective bargaining agreement between the parties prior to receipt of the recommendation for the ten-day suspension without pay. As discussed in greater detail below, the School Board proved by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order finding William Doran guilty of misconduct in office, suspending his employment without pay for a period of ten school days, and placing him on probation for a period of one year. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 19th day of August, 2014.
The Issue The issue for determination is whether the School Board has proven the allegations set forth in the Notices of Specific Charges dated April 3, 2001, and, if so, what penalty should be imposed.
Findings Of Fact The incident giving rise to this case occurred on November 14, 2000. At that time, Respondents Gregory Adams (Adams) and Brett T. Scanlon (Scanlon) were employed as teachers by the School Board and assigned to William Chapman Elementary School (Chapman). Adams has been employed by the School Board since August 1996, and has taught at Chapman since 1998. Scanlon has been employed by the School Board at Chapman since October 1999. Adams and Scanlon shared a second grade classroom during Scanlon's first year at Chapman, and Adams became a mentor to him. At the start of the 2000/2001 school year, Scanlon was assigned to teach third grade, while Adams continued to teach second grade. The complaining witness against Adams and Scanlon, Miguel Suarez (Miguel), was nine years old at the time of the incident. Like many of the teachers and administrators at Chapman, Miguel is of Hispanic origin. English is his second language. Miguel's academic functioning is quite low. In terms of expressing himself, he functions at a four or five-year-old level. His memory functions no better than that of a five- year-old. He was not sure, for example, what school he had attended last year. Miguel is unable to reliably sequence events. He is eager to please and, at least in the presence of the undersigned, attempted to ascertain what adult authority figures wanted and to give it to them. Miguel's learning disabilities are not the first thing one notices about Miguel. Indeed, Miguel began the 2000/2001 school year as a second grade student in a regular education class. It was not until mid-October that the professional educators who worked with him daily mustered sufficient evidence to identify his learning disabilities and appropriately place him into a learning disabilities (LD) program for part of the day. Miguel's family is not adept at communicating effectively with school teachers and administrators. Miguel's mother, Silvia Gomez (Gomez), does not strive for a united front between home and school. In addition to his mother, Miguel resides with her live-in boyfriend. Both are irregularly employed. Sometime prior to the incident on November 14, 2000, Miguel's father had committed suicide. Miguel was aware that his father had died, but had never received counseling directed to this loss. Adams is an African-American from an impoverished, hardscrabble background. Out of seven siblings, he and one other have achieved a college education. Adams feels an obligation to encourage children of similar background. Scanlon is a white male, who previously served in the armed forces. His professional bearing is reminiscent of what official Miami used to look like. He too is committed to teaching. At the time of the final hearing, Chapman’s racial and ethnic composition, as well as the mix of English and Spanish spoken as first languages, typifies the rich diversity of Miami-Dade County in the 21st century. But it also provided fertile ground for misunderstanding, miscommunication, and mixed signals. Compounding the potential for trouble at Chapman, at the time of the incident, some teachers employed a practice called ”time-out” to deal with students with whom they were having a problem at a moment when they were not able or willing to deal with the problem themselves. Time-out, though not part of the officially approved discipline program at Chapman, was widely known in the school. The practice was discontinued after and as a direct result of this incident. At the time of the incident, Adams and Scanlon had a good faith belief that it was a form of professional courtesy within the school, and not an act which would place one’s career in jeopardy. Time-out was initiated by the teacher having difficulty with a particular student. She would take or send the disruptive student to a fellow teacher who would use his own discretion in returning the child to a compliant mode. Sometimes, the mere act of sending the child to another teacher was sufficient to inspire contrition. Sometimes it wasn't. Sometimes a child would join the time-out teacher's classroom. Sometimes the child would be taken to a private area and given a stern lecture. Miguel, due to his learning disabilities and in particular his extremely poor communication skills, was not a good candidate to respond positively to a stern lecture. Rather, it was frightening to him, particularly when delivered by two adult male teachers previously unknown to him. Adams, on the other hand, had good results in the past with students referred to him for time-out. Adams was experienced in administering time-outs for fellow teachers, and the record reflects no complaints about either Respondent's techniques with reference to their handling of time-outs. Adams and Scanlon had no knowledge of Miguel’s limitations and special circumstances on November 14, 2000, when one of Miguel’s teachers, Leah Gilliard (Gilliard), was angry at Miguel for “helping” to collect books without permission. Gilliard delivered Miguel to Adams, who in turn sought the assistance of his colleague Scanlon. Miguel’s time-out ended in a student bathroom, where Respondents used language and metaphors which may have been effective with a third grader of average communication skills, but which served only to frighten Miguel. In particular, Scanlon asked Miguel why he wanted to throw his life away and if he wanted to flush everything down the toilet. Asked by Scanlon questions to the effect of why he was throwing his education away like he was flushing it down the toilet, Miguel started laughing. It may well be that Miguel laughed out of fear, or confusion, but Scanlon and Adams perceived disrespect. Rather than switch metaphors, Adams took Miguel to a child-size toilet stall and said “This is your life going down the drain if you don't get serious about education.” As he said this, he flushed the toilet with his foot. Miguel was sufficiently chastened to obey Adams' direction to apologize to Scanlon for having been (in Respondents' perception) rude. Miguel did not cry or exhibit other signs of distress to Respondents as they escorted him from the bathroom. Scanlon returned to his own classroom and Adams returned Miguel to Gilliard. At Adams' direction, Miguel apologized to Gilliard and the time-out ended. Miguel said nothing of the incident until later that night. At bedtime, Miguel told Gomez that “a brown man and a white man” had “put his head in the toilet.” Gomez did not take the claim seriously, and Miguel was not agitated or upset. Gomez told Miguel to go to sleep and he did so. The next morning, however, Miguel said he did not want to go to school, so his mother went to school with him. In the presence of Miguel, she first met with Gilliard, and next with teacher Millie Johnson (Johnson). Johnson, on hearing the toilet story, said to Miguel in a loud and “forceful” voice, “They didn't really do that, did they?” Miguel answered, “They almost.” Adams was summoned, and admitted to having had Miguel in his custody for time-out, but not to any type of physical abuse. By this time, Miguel had told at least three adults, his mother, Gilliard, and Johnson, that he, Adams, Scanlon, and a flushing toilet were all in proximity to one another while Miguel was being sternly double-teamed on the subject of his behavior—-a fact which Adams and Scanlon do not dispute. Dissatisfied with Adams’ explanation, an angry Gomez left an upset Miguel behind at school to be cared for by teachers, administrators, and counselors who were busy with their regular work. As the day progressed, Miguel was required to tell his story to no fewer than four more teachers and administrators. Miguel began to add substantially and horrifically to the story he had told his mother the night before. Meanwhile, Adams and Scanlon were immediately transferred out of Chapman and assigned to a district office. At different times and places, Miguel has claimed that Adams kicked walls and slammed doors; that Scanlon threatened to cut off his tongue and his fingers; that Adams threatened to cut out his tongue and teeth; and that Adams pushed his head just inside the rim of the toilet seat, near the water, and asked, “Do you want to drown?” In addition, Miguel has claimed that both teachers took him to a stairwell where Adams told Miguel that he would drop him down the stairs, pull out his teeth, and do "something" to him if he told his mother. Miguel's story has grown to include allegations that one or both teachers made him stand on one foot and pretended to push him down the stairs. It is also alleged that Adams made him run up and down the stairs chasing an unidentified boy that they had picked up on their way to the stairs. For reasons not reflected in the record, a couple of days after the incident, Miguel's mother's live-in companion came to the school office screaming, “How could teachers do this!” For several days following his mother's visit to Chapman, Miguel was agitated and did not want to go to his homeroom. The record is unclear as to whether his agitation was the product of the November 14th incident, or adult reaction to it as horrific details were added, or being simply overwhelmed by the attention. Soon after the incident, Miguel was administratively promoted to a third grade homeroom. He continues to be enrolled at Chapman. Gomez retained an attorney to pursue a civil action on Miguel's behalf. At the time of the final hearing in this case, the incident which occurred on November 14 is in active litigation and requires a significant amount of Miguel's time. He is fearful of failing this year because he is missing a lot of school due to the legal proceedings. Gomez and her lawyer sought and received publicity for their claims against Petitioner. In seeking media coverage they knowingly and voluntarily made Miguel's identity a matter of public notoriety for purposes of influencing the outcome of the litigation. Because Petitioner's case rests entirely upon Miguel's claims that he was subjected to criminal conduct far beyond the time-out described by Adams and Scanlon, the undersigned paid careful attention to his demeanor under oath. Miguel attended a significant portion of the final hearing accompanied by his mother and his lawyer, and listened again to teachers' accounts of what he had allegedly told them about the incident. Miguel's time on the witness stand was prolonged because he had significant difficulty understanding questions and even more difficulty in recalling and recounting facts crucial to the allegations against Respondents. On several occasions his attempted answers were simply unintelligible. Miguel's family, by virtue of its lawsuit against Petitioner, had an obvious financial stake in telling as horrifying a tale as possible. Similarly, Adams and Scanlon, whose careers and livelihoods are at stake, are motivated to downplay the extent of their efforts to intimidate Miguel into improving his behavior. The undersigned, therefore, carefully observed Respondents' demeanor as they testified. The testimony of the Respondents and of Miguel, when evaluated in the context of the entire record, reveals that Petitioner has failed to establish that Miguel was abused in the manner described in the Notice of Specific Charges. Rather, the version of the incident recounted by Adams and Scanlon is far closer to the truth. The Petitioner's allegations are utterly inconsistent with any evidence presented about the character and professional career of Adams and Scanlon. In addition, they are so horrific that one would expect that a child who had suffered such treatment would be far more traumatized than the cheerful, if intimidated, little boy who testified at the final hearing. The undersigned attaches particular significance to Gomez' claim at the final hearing that on the night of the incident, Miguel reported to her most, if not all, of the abuse allegations against Adams and Scanlon. Yet, all of Petitioner's witnesses agree that when Gomez confronted Adams and school authorities the following day, she said nothing of the alleged threats of violence and death made against her son. Gomez claims she did not mention the abuse allegations the next day because she deemed them unimportant when measured against the fact that--taking the evidence in the light most favorable to the Petitioner--Miguel's head had been placed near, but not in, the toilet water. The undersigned rejects Gomez' testimony that Miguel in fact claimed, on the night of November 14th, that he had been subjected to violence, physical abuse, and death threats. Not only did Gomez fail to mention these most serious charges to any of the teachers or administrators, she never mentioned them to school police. It is also significant that the day after the incident, Miguel did not suggest to anyone that any other children were present on the stairs. It was not until his deposition was taken in May 2001, that Miguel stated that another little boy was on the stairs and that the “Brown man” pulled the little boy from class and made both of them run up and down stairs. There is no corroborating evidence that this child exists, or this incident took place on November 14th nor at any other time. Neither is there any corroboration of any kind for Miguel's testimony that several children were in the bathroom at one time or other during the course of the incident and each of these children was ordered out by Adams or Scanlon. Such witnesses, if they existed, would be of obvious value in providing disinterested testimony as to, at a minimum, the demeanor of the Respondents during the incident. Being kicked out of a bathroom by a teacher is not a daily occurrence. Had multiple children been subjected to this unusual behavior by two teachers who were preparing to or were in the process of abusing a second grader, it should not have been difficult to identify them 24 hours later. Petitioner attempted to corroborate Miguel's testimony through a school psychologist, Diane Cotter (Cotter). She opined that the alleged abuse actually occurred. Cotter has no personal knowledge of the incident, does not treat Miguel, and has no credentials in forensic psychology. With deference to the witness, the undersigned disagrees with her opinion as to Miguel's reliability. The record as a whole establishes that Miguel's story grew in direct response to the attention and reinforcement he was receiving as the flushing toilet story was embellished with allegations of criminal child abuse. Petitioner, at its duly-noticed meeting of March 14, 2001, took action to suspend Adams and Scanlon without pay and to initiate dismissal proceedings against them pursuant to Sections 230.23(5)(f) and 231.36(6)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board issue a final order reinstating Gregory Adams and Brett T. Scanlon with back pay. DONE AND ORDERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida. _______________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001.
The Issue The issue to be determined is whether Respondent violated the Principles of Professional Conduct for the Education Profession in Florida as alleged in the letter from Duval County School Board dated May 25, 2017; and, if so, the appropriate disciplinary action.
Findings Of Fact Background Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Duval County, Florida. Art. IX, § (4)(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Ms. Stripling-Mitchell is a teacher covered by the Collective Bargaining Agreement (“CBA”) between Duval Teachers United and the Duval County School Board for 2014-2017. At all times material to this matter, Respondent was a teacher assigned to Hyde Grove. During the 2016-2017 school year, Respondent was assigned to teach second-grade students. As a classroom teacher, Respondent was expected to comply with the 2016-2017 staff handbook which required staff members to strive to achieve ethical conduct and to familiarize themselves with the Code of Ethics. Teachers are trained to avoid touching students aggressively and to avoid leaving students unsupervised. The staff handbook provides that students should not be left unsupervised in a classroom or other area. The policy also provides that no student should be sent to the playground without teacher supervision. Ms. Sapp, the principal of Hyde Grove, provided training to the staff during pre-planning training and orientation week. One of those trainings was on Ethics and Professionalism. The training in-service record reflects that Respondent completed the training. During the training, Ms. Sapp provided guidelines for interaction with students and demonstrated the training principles. To avoid aggressive touching of students, she gave examples as follows: “[i]f a student falls down to the floor, pouting, as children would do, . . . basically ask for them to get up, but, rule of thumb, just not to put your hands on the student.” Ms. Sapp testified that teachers could exercise various strategies to diffuse a situation with a student engaged in disruptive behavior. Teachers are trained to create distance between the child who is being disruptive and the adult, until someone else could remove that child. Another strategy is to transfer the disruptive student to the partner-teacher for time- out. A teacher could also send the classroom partner for help or call the administration for assistance. Ms. Stripling-Mitchell testified that her partner-teacher, Ms. Hinton, was absent on the day of the incident so she did not use that strategy. However, Ms. Stripling-Mitchell did not otherwise use any of the suggested strategies during the incident with the student. The facts that serve as the basis for this case occurred in April 2017. On April 20, 2017, at approximately 2:45 p.m., classes were preparing for afternoon dismissal. At around the same time, Ms. Jones, the Team-Up instructor arrived at the classroom she shared with Ms. Stripling-Mitchell. Team-Up is an after-school program that provides academic enrichment, arts and crafts, and homework assistance. The Team-Up program operates from 2:55 p.m. until 6:00 p.m. each day. As she entered the classroom, Ms. Jones saw Ms. Stripling-Mitchell talking to students to prepare them for dismissal. The students were working on the iReady program using laptops. Respondent was working with three students who were seated in the back left corner of the classroom. Ms. Jones noticed that J.K. was being noncompliant with Ms. Stripling- Mitchell’s requests to continue working on the iReady program. As a result of the disruptive behavior, Ms. Stripling- Mitchell directed the student to return his laptop to the laptop cart and leave her classroom. The student continued to be disruptive and stated that he was not going to leave. Ms. Jones heard Ms. Stripling-Mitchell say, “[l]et me help you out with it,” and Ms. Stripling-Mitchell led the student by his left arm to the front of the classroom. Ms. Jones also heard the student say, “[n]o. I didn’t do anything. Get your hands off me.” While the student walked with Respondent side by side, he continued to resist. When the two arrived at the front of the classroom, the student turned and faced Respondent. Ms. Stripling-Mitchell bent over toward the student’s face. Her face was a few inches from the student’s. Ms. Jones saw Ms. Stripling-Mitchell pointing and waving her finger in the student’s face while saying, "[w]hat did your mother tell you? Didn't she tell you to respect me? I'm going to call your mother and she's going to beat your butt." Ms. Jones testimony about this statement is different in her written statement, which states, “[M]s. Stripling-Mitchell said, What did your mother tell you about being disruptive? What did your mother tell you about being disrespectful to me? I am going to call your mother and tell her everything you have done here today so she can get on your butt!” Ms. Jones was at the back of the room, near the sink, on the opposite side of the room from Ms. Stripling-Mitchell and the student. Although the statements are different, the difference is of minor significance. The evidence demonstrates that Ms. Stripling- Mitchell threatened to call the student’s parent while she and J.K. were at the front of the classroom and in front of other students. The student in turn yelled at Respondent to get out of his face. At the same time, he raised the laptop above his head and swung it at Ms. Stripling-Mitchell. Respondent blocked the laptop and took it from the student. The student then attempted to punch Ms. Stripling-Mitchell. She dropped the laptop and blocked his punch. Although Ms. Jones witnessed the events, she had not intervened to assist Ms. Stripling-Mitchell at this point. Ms. Jones contacted the administration office two times, but the teachers did not receive assistance in the classroom. After Ms. Stripling-Mitchell struggled with the student, she restrained him against one of the two dry-erase boards using her hand and forearm. Ms. Stripling-Mitchell was directly facing the student with her back to the classroom, and the student’s back was against the dry-erase board. Ms. Jones testified that Ms. Stripling-Mitchell and the student continued to argue and they moved along the dry-erase board laterally, for approximately eight feet. Ultimately, Ms. Jones separated Ms. Stripling-Mitchell and the student. Ms. Jones walked the student to Ms. Sapp’s office. During the walk to the principal’s office, the student complained of shortness of breath and was breathing heavily. Ms. Sapp was notified that a student was in her office and there was an issue she needed to address. Ms. Sapp testified that when she initially saw the student, he was crying, huffing and puffing, and breathing hard. When Ms. Sapp asked what happened, the student told Ms. Sapp that Ms. Stripling-Mitchell placed her hands around his throat and that he could not breathe. After J.K. told his account of the incident, Ms. Stripling-Mitchell arrived in the office. Ms. Sapp then met with J.K. and Ms. Stripling-Mitchell. During the meeting, J.K. repeated that Ms. Stripling-Mitchell choked him. Ms. Stripling- Mitchell interrupted J.K. and engaged him in reenactment of the incident. The reenactment consisted of Ms. Stripling-Mitchell demonstrating how she restrained the student using her hand near his neck. Ms. Sapp then stopped the reenactment and asked the student to wait outside her office. Ms. Sapp told Ms. Stripling-Mitchell she should not touch the children, and Ms. Stripling acknowledged in agreement this was the school policy. Ms. Sapp testified that it was unacceptable for Ms. Stripling-Mitchell to instruct the student to leave her class and go sit at the picnic bench without supervision. Ms. Sapp finished her meeting with Ms. Stripling- Mitchell, and Ms. Stripling-Mitchell returned to her classroom. Before Ms. Sapp met with J.K. and Ms. Stripling- Mitchell, she contacted the Office of Professional Standards for guidance regarding the appropriate next step. Ms. Sapp was advised to obtain statements regarding the incident. Ms. Sapp later asked Ms. Jones to send students who had knowledge of the incident to her office. After speaking with the students, Ms. Sapp asked the students to write statements about the incident as requested by the Office of Professional Standards. The statements were provided to the investigator conducting the investigation of the allegations, Mr. Gregory. Mr. Gregory collected the written statements and interviewed five students the day following the incident. Overall, the students provided varied descriptions of what happened. Mr. Gregory also conducted an interview of Ms. Jones, a portion of which occurred in the classroom, and requested that she provide a written statement. In addition to obtaining witness statements, Mr. Gregory researched Ms. Stripling-Mitchell’s discipline history. He discovered that Ms. Stripling-Mitchell had been the subject of prior investigations that resulted in disciplinary action. On May 18, 2012, Ms. Stripling-Mitchell was investigated for use of profanity, demeaning, and derogatory communication directed toward employees. She was issued a written reprimand, a Step II disciplinary action. In December 2016, Ms. Stripling-Mitchell was involved in an incident with a different student that is of direct relevance to this proceeding. In that incident, a parent complained about Ms. Stripling-Mitchell’s interaction with their child. It was determined that during an interaction with a disruptive student, Respondent pushed that student to the floor and verbally reprimanded him in front of other students. The incident resulted in the child being subject to embarrassment and physical aggression. On January 9, 2017, Ms. Stripling-Mitchell was issued a written reprimand, her second Step II disciplinary action. Ms. Stripling-Mitchell was also directed to seek assistance from the Employee Assistance Program (“EAP”) to obtain training on strategies for deescalating situations. After the interviews and review of the statements, Mr. Gregory concluded that Ms. Stripling-Mitchell used inappropriate physical contact with J.K. by restraining him against the wall with her hand and arm against his throat, after J.K. swung the laptop at her. Although not specifically alleged in the Notice, there was a dispute whether the student was choked. Ms. Jones testified that Ms. Stripling-Mitchell choked the student during the incident. However, she did not mention choking in her written statement. At hearing, Ms. Jones was confronted with a text message addressing that issue. The texts were as follows: Ms. Stripling-Mitchell: I was told that Ms. Timberlake planned or plans to call DCF or someone since J.K. told her I choked him that why he tried to hit me. LIES!! Ms. Jones: What!!! That’s a freaking lie!!! You did not choke him!!! Ms. Jones’ testimony regarding Ms. Stripling-Mitchell choking J.K. was not credible. There was also a dispute regarding whether Ms. Stripling-Mitchell raised her fist toward the student. Ms. Jones testified Ms. Stripling-Mitchell raised her fist and threatened to strike the student. Ms. Jones did not mention this allegation in her written statement provided days after the incident. Ms. Jones also did not mention this alleged observation when Mr. Gregory interviewed her. Ms. Stripling- Mitchell testified that she did not raise her fist to strike J.K. The student provided a statement describing the incident in his own words. He indicated that Ms. Stripling- Mitchell placed her hand on his neck. There was no reference in the student’s statement that Ms. Stripling-Mitchell tried to punch him. Several other students provided written statements which also did not include any indication that Ms. Stripling- Mitchell raised her fist toward the student. The undersigned finds no credible evidence that Ms. Stripling-Mitchell raised her fist to strike the student. There was much discussion at hearing regarding the description and behavioral history of the student. Ms. Jones described the student as a seven-year-old, scrawny boy, standing at four feet, nine inches. She also stated that the student could be sweet, but could be provoked “if things don’t go his way, if you threaten him or when the children . . . play a game called “the dozens.”2/ Ms. Stripling-Mitchell, on the other hand, described the student as routinely disruptive and noncompliant with staff. Between October 2016 and April 2017, J.K. engaged in conduct that resulted in six referrals. The referrals involved pushing another student, attempting to trip a student multiple times, stabbing a student in the arm with a pencil, and fighting. There were no referrals that involved a confrontation with a teacher. Ms. Stripling-Mitchell provided her account of the incident at hearing. Ms. Stripling-Mitchell testified that she became the student’s teacher in August 2016. Shortly after he became her student, she became aware of his disruptive behavior. Ms. Stripling-Mitchell had a practice of telling J.K., “[I]’m going to call your mom if you don’t settle down,” to encourage him to stop engaging in inappropriate behavior. On April 20, 2017, Respondent was working with three students on the iReady system when she heard someone say “[t]he folder hit me.” When she approached a group of three boys, including J.K., one student said, “J.K. just hit me with a folder.” Ms. Stripling-Mitchell instructed the boys to get back to work. Before she returned to her seat, she heard someone say “Stop.” She then returned to J.K. and told him, “[y]ou’re going to need to go sit on the picnic table.” J.K. agreed to return to the iReady activity. However, a short time later, Ms. Stripling- Mitchell heard a loud yell from one of the boys at J.K.’s table. Ms. Stripling-Mitchell then repeated to J.K., “[y]ou’re going to have to leave.” Ms. Stripling-Mitchell recalls that Ms. Jones arrived and sat at a table in the opposite corner of the room and began changing her shoes. During this time, Ms. Stripling-Mitchell continued to engage in a back-and-forth exchange with J.K. Similar to Ms. Jones’ account of the incident, J.K. swung the laptop at Ms. Stripling-Mitchell and she blocked it. Then, J.K. tried to punch her, which she also blocked. Ms. Stripling-Mitchell testified that after she blocked his punch, J.K. continued to attack her by trying to throw her to the floor. She testified that she had to restrain him against the dry-erase board to avoid falling. It is disputed whether the student continued to attack Ms. Stripling-Mitchell after she took the laptop and blocked his punch. Ms. Jones testified the student was not attacking Ms. Stripling-Mitchell, but rather he was trying to get away while Ms. Stripling-Mitchell was restraining him. On the other hand, Ms. Stripling-Mitchell testified that the student was trying to “flip” her, which is why she restrained him. The undersigned finds Ms. Jones’ testimony more credible. After J.K.’s failed attempt to punch her, there was no evidence of a threat for which Ms. Stripling-Mitchell needed to defend herself. Even if there was a threat, Ms. Stripling- Mitchell inappropriately touched J.K. by restraining him against the dry-erase board using her hand against his neck area. Ultimate Findings of Fact Overall, the credible evidence demonstrates that Ms. Stripling-Mitchell restrained the student against the dry- erase board using her hand near his neck. Ms. Stripling-Mitchell exercised poor judgment when she told the student that his mother was going to discipline him at home for his behavior in front of other students. Ms. Stripling-Mitchell exercised poor judgment when she instructed the student to leave her classroom to sit at the picnic bench.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order sustaining the Step III written reprimand and suspension without pay disciplinary action imposed against Respondent, Stephanie Stripling-Mitchell, as an instructional employee of the School Board. DONE AND ENTERED this 12th day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2017.
