The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
The Issue Whether the District has proven, by a preponderance of the evidence, that there was just cause to dismiss Thomas Brown, consistent with the provisions of the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended, and Chapter 120, Florida Statutes.
Findings Of Fact The Respondent, Thomas Brown, was a teacher of instructional music in the Duval County School District (District). As part of the instructional personnel with the District, Brown was subject to be evaluated on an annual basis pursuant to the teacher assessment system. The purpose for evaluating teachers is to make certain that instruction is occurring in the classroom and that students are learning the required subject matter. The evaluation process also makes certain that student safety in the classroom is taken into consideration by the instructional personnel (teachers). The District uses the teacher assessment system to evaluate all of its teachers regardless of the subject matter they instruct. From the 1999-2000 and the 2000-2001 academic school years, Brown was a teacher at Andrew Jackson High School where Jack Shanklin (Shanklin) is principal. Shanklin has evaluated teachers annually since he became a principal 22 years ago. He uses the classroom observation instrument within the teacher assessment system to evaluate all of his teachers. At the beginning of the 2000-2001 academic year, Shanklin; Ms. Pierce, assistant principal; Dennis Hester, professional development cadre member; and Mr. Dudley took part in creating a success plan for Brown. A success plan is a course of action designed to prevent an at-risk teacher from getting an unsatisfactory annual evaluation by engendering professional improvement. Shanklin discussed the success plan with Brown before it was implemented. Brown did not have any objections to the plan. Shanklin evaluated Brown for the 2000-2001 academic school year during March of 2001. He based his evaluation results on the observations and written reprimands that he had issued to Brown throughout the 2000-2001 year. During the year, Shanklin observed Brown's classes. In preparation for a classroom visit, he reviewed Brown's lesson plans for October 18, 2000. Lesson plans describe the daily plan for instruction of the students on a particular day. Shanklin had previously directed Brown to turn in his lesson plans on a weekly basis in order to monitor Brown's progress because of his departure from planned lessons. Shanklin attempted to observe Brown in his classroom on October 18, 2000; however, neither the class nor the teacher was present in Brown's classroom. Shanklin later found Brown and the class with the choral class in the auditorium; but Brown had failed to amend his lesson plans to include the choral visit, although he had adequate time to do. He had presented none of the lesson plan that had he filed. Shanklin returned on October 19, 2000, to observe Brown's classroom ten minutes after class has begun. As he entered the classroom, two students ran out the back door. When questioned, Brown had no knowledge of their identity. Shanklin witnessed students harassing other students without correction from Brown while he was addressing the needs of only five of his 35 students. While Brown spoke with the small group, the other students were doing whatever they wanted. There were no class assignments being conducted by the other students. Shanklin later identified one of the students who had been harassing other students as John Fields. Shanklin removed Fields from class because his behavior was so menacing. Brown should have prohibited and corrected the student misconduct, which he failed to do. Shanklin gave Brown a written reprimand by letter dated October 30, 2000. Shanklin also observed Brown on December 4, 2000, during a previously announced observation. Brown did not begin class with an appropriate review of recent material or outline of the day's lesson. Student misconduct again was uncorrected by Brown. Students were moving around and talking during instruction by Brown without correction. This class was not a band class, but a music appreciation class, and there was no need for student movement during instruction. After this observation, Shanklin reviewed his observations with Brown in January of 2001. Following the January discussion, Shanklin observed Brown again later that month, at a previously announced observation. He also discussed that visit with Brown. Shanklin also had Dennis Hester, a professional cadre member, observe Brown's classroom instruction. As part of Hester's responsibilities to improve "less than satisfactory" teachers, Hester reviewed and approved the success plan developed for Brown. Pursuant to that plan, Hester assisted Brown with both formal and informal observations and conferences through 2000 and 2001. After multiple informal conferences in January, Hester began formal observations in February. Hester utilized a number of tools to accurately document the classroom instruction by Brown. Domain One Instrument is a tool in the Florida Performance Measurement System which identifies a teacher's ability to plan lessons. The Domain Two Instrument is a classroom management tool used in the Florida Performance Measurement System (FPMS) to assess how a classroom is run. Hester was trained to evaluate teachers by using both tools and has done so with over 30 teachers in Duval County. Hester also used a conference planning guide which is a list of behaviors observed indicating areas to be worked on, and the Clinical Educator Training (CET) anecdotal instrument to clarify the events of a classroom observation in detail. Hester observed Brown's class on February 1, 2001, and saw a number of students off-tasks, and one child sleeping. Hester observed Brown tell the sleeping child to "wake up, no slobbering on the desk . . ." Brown should have taken positive steps to keep the student awake, and should not have accused him of "slobbering on the desk." Hester discussed these deficiencies with Brown towards the end of February. Hester was due to have all of his evaluations completed on March 15, 2001. Although the Domain One, on planning lessons, was due from Brown to Hester on January 18, 2001 for a February 27, 2001, class observation, Hester did not receive it until March 7, 2001. Thereafter, Hester faxed his commentary of the Domain One to the school for Brown to review as the remaining time permitted. Although Hester did not specifically provide Shanklin with his observation notes for review, the principal reviewed the cadre's notes which outlined the similar misconduct and classroom mismanagement Shanklin witnessed himself. Shanklin's evaluation was also made with the consideration of an incident at the May graduation of 1999/2000 academic school year. Brown's band refused to perform after Brown instructed them to do so. It was later discovered that those students who refused to perform were academically ineligible to be in the class. In prior years, Brown had allowed ineligible students to perform in the school band against the school's rules and regulations, and had been told to stop permitting this. On March 15, 2001, Shanklin gave Brown an unsatisfactory annual evaluation. In evaluating Brown as unsatisfactory for Competency No. 1, Shanklin considered his own observations of Brown's failing to follow his established lesson plans. Brown's failure to manage his classroom and correct student misbehavior supports Shanklin' unsatisfactory evaluation under Competency No. 3. Because of a lack of academic climate due to classroom mismanagement and unorganized instruction, Shanklin deemed Brown to have been unsatisfactory in Competency No. 4. In addition, regarding Competency No. 4, Brown allowed students to eat in his classroom which was critiqued by Shanklin in a letter to Brown dated December 6, 2000. In evaluating Brown unsatisfactory under Competency No. 5, Shanklin considered Brown's failure to provide sufficient evidence that any real grades could be disseminated to Brown's students as there were no rubrics or student work visible for assessments. Finally, Shanklin gave Brown an unsatisfactory evaluation on Competency No. 9 because Brown never demonstrated any type of diversified lesson designed to maintain the attention of the students; which was needed as evidenced by the repeated observation of students sleeping in his class. Following the 1999/2001 academic school year, Brown was transferred to Jefferson Davis Middle School where Bob Powell was principal. Powell created an initial success plan for Brown when he first arrived in the beginning of the year. After formally observing Brown, Powell created a second success plan dated October 29, 2001, which was discussed and agreed to by Brown. The plan was designed for Brown to implement the components for his own benefit. Throughout the year, Powell observed Brown's classroom instruction. On November 20, 2001, Powell formally observed Brown's instruction. Thereafter, Powell also observed Brown on two more occasions on January 10 and 18 of 2002. During his observations, Powell witnessed students talking during "warm-ups," whose attention Brown failed to get. Powell observed that Brown failed to provide praise to his successful students which is needed at the middle school age. Powell noted problems Brown had with communicating with band parents. Powell was concerned that a band parent reported that Brown had threatened to fail and throw her child out of band practice which Brown had no authority to do. In addition, band parents also complained that Brown placed their names as chaperones on a field trip, without their permission. When this was revealed, the trip had to be cancelled. Following the formal conferences with Brown, Powell discussed his observations with Brown. Brown admitted to Powell that other District personnel were telling him the same things Powell was mentioning. Notwithstanding the counseling, Brown was unable to constructively adapt. Powell also requested Patricia Ann Butterboldt to observe Brown during his instruction at Jefferson Davis Middle School. Butterboldt is responsible for supervising and overseeing the curriculum of music teachers throughout the District. During the 2001/2002 academic school year, Butterboldt observed Brown with an intermediate class on two occasions. On November 1, 2001, Butterboldt observed that Brown failed to follow his own instructional classroom schedule. In addition, Brown utilized students to instruct other students in complex musical exercises for which students had no ability to adequately conduct the drill. Butterboldt also witnessed Brown's students consistently off task. On January 23, 2002, observation, Butterboldt again observed inappropriate classroom instruction and management, to include Brown's failure to correct the class for ridiculing a student. Butterboldt noted that even if students forget their instruments, the teacher is responsible to provide instruction to that student. Following both Butterboldt's observations, Powell was provided copies of her observation's reports. Sue Martin, professional cadre member, was requested by Powell to provide feedback on Brown's instruction. Her report was introduced as Exhibit 29. During the same academic school year, Mrs. Saffer, vice-principal observed Brown pursuant to Powell's request. Saffer also utilized the classroom observation instrument during her observation of Brown. Saffer observed that Brown failed to properly correct the behavior of non-responsive students. Although critical, Saffer also complemented Brown on his positive action; however, after reviewing Brown's grade book for the day of her observation, Saffer was surprised that the students were awarded grades without any means of evaluation Saffer could decipher. Afterwards, Saffer met with Brown weekly regarding his grade book. In addition to the grade book, Saffer also discussed with Brown her observations (formal and informal) of his instructional conduct throughout the school year. Although Saffer did not evaluate Brown, she did provide her observations to Powell for his evaluation. In addition to school assistance and counsel, Powell provided Brown with many opportunities for professional training. Brown attended at least two training sessions to Powell's knowledge. However, Powell learned that Brown rejected a training conference in Jacksonville offered to him by Butterboldt because he said the presenters of the conference were "racists." On January 30, 2002, Powell provided Brown with a notice warning him of an unsatisfactory annual evaluation. Powell based his notice of a possible unsatisfactory evaluation on all of the observations and notations he made and had been provided to him. Thereafter, Powell observed another instruction by Brown in February of 2002. However, Powell never witnessed Brown perform pursuant to the schedule attached to a letter drafted by Brown which allegedly addressed Powell's concerns. Powell eventually prepared Brown's annual evaluation for the year which reflected Powell's assessment of Brown's unsatisfactory performance demonstrated throughout the academic year. John Williams is the director of professional standards for the District who was responsible for generating the termination letter once he received the second unsatisfactory evaluation. After reviewing all of the notices and evaluations, Williams not only determined that the manner in which both principals utilized the teacher assessment system was appropriate, but that Brown's performance required that the District initiate Brown's termination from employment.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Respondent, Thomas Brown, be dismissed from employment. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of March, 2003. COPIES FURNISHED: Derrel Q. Chatmon, Esquire Duval County School Board 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 John C. Fryer, Jr., Superintendent Duval County Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182
The Issue The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district. The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district. As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record. DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 27th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637 Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board: The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand. Paragraph 12 is rejected as irrelevant. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted. Paragraph 17 is rejected as irrelevant. Paragraph 34 is rejected as argument or comment. Paragraph 35 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant. Paragraph 47 is rejected as vague or argument. Paragraphs 49 through 52 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor: The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. Paragraph 13 is rejected as irrelevant. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted. Paragraph 33 is rejected as contrary to the weight of the credible evidence. Paragraph 39 is rejected as argument. Paragraph 40 is rejected as argument. Paragraph 46 is rejected as argument or vague. Paragraphs 48 through 51 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force. Paragraph 9 is rejected as irrelevant. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant. Paragraph 15 is rejected as argument or irrelevant. Paragraph 16 is rejected as argument or irrelevant. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant. Paragraph 19 is rejected as unnecessary comment. Paragraph 20 is rejected contrary to the weight of credible evidence. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant. Paragraph 27 is rejected as speculative, irrelevant, or argumentative. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argumentative and irrelevant. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 34 is rejected as contrary to the weight of the credible evidence. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 36 is rejected as irrelevant or argument. COPIES FURNISHED: Tobe Lev, Esq. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Roseanna J. Lee, Esq. Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN 390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde, Exec. Dir. 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Rood is a black person. Rood was employed by Coastal Lumber Company on June 22, 1981, as a glue line superintendent, where he supervised three shifts and three shift supervisors. In January, 1982, Rood was promoted to Dry End Superintendent, responsible for seven supervisors and three shifts. Coastal Lumber Company operates a plywood production plant in Hinson, Florida. The plant has been in operation only since 1981 and produces plywood panels for use in the construction industry. Plywood production is divided into several stages. The first stage is referred to as the Green End and involves stripping green logs straight from the forest by use of an industrial lathe. The lathe strips the logs into thin veneer sheets approximately 50 inches by 101 inches in size. The veneer sheets are then transported to a huge oven where the sheets are dried out. Once the green veneer has had most of the water content removed in the oven, the sheets are placed on a conveyer belt (the lay-up line). Glue is applied and the veneer sheets are placed one on top of the other like a sandwich to obtain the desired thickness. The multi-layered sheets are then pressed together in a large hydraulic press to cure the glue and bond the veneer sheets together to form a plywood panel. After pressing, the rough-edged panels are squared off into standard size panels, sorted, graded, and shipped. The production line beginning with the drying out process in the ovens through gluing and pressing process is referred to as the Dry End. The finishing and shipping department is a part of the Dry End in that the finished product has been dried in the oven, but is more typically referred to as a separate department. David Carter was hired by Coastal Lumber as the plywood production manager in February 1982. He had previously been employed by the Union Camp Corporation as a plant manager and has twenty-five years of experience in the plywood industry. Carter was hired because Coastal Lumber was in dire financial straits. The company had lost a lot of money in its first year of operation and was in danger of closing down. Production was down, costs were out of control and the plant was lacking in leadership. When he arrived at Coastal Lumber, Carter found the plant organized in a departmental superintendent system. Warren Thornton, a black man, was the Green End superintendent. Rood was the Dry End superintendent. John Asbell, a white man, was the Finishing and Shipping superintendent. Under the system, the three superintendents were of equal authority and were responsible for scheduling and coordinating production between their departments. Carter had worked before in plants which used this departmental superintendent system but based on his many years of experience preferred a system utilizing a single plant superintendent who is responsible for scheduling production throughout the plant. In order to increase production and turn the plant around, Carter began making changes. First, he fired John Asbell because Asbell was unable to improve the finishing and shipping department. He then transferred Mike Leonard, a black employee, from the glue line to the finishing and shipping department because Leonard had some prior experience in the area. Rood, who had previously supervised Leonard on the glue line, was required to assume superintendent responsibilities for the finishing and shipping department in addition to his responsibilities as dry end superintendent. Both of these personnel moves were on a trial basis. Although some improvement occurred in the finishing and shipping department under Rood's supervision, the improvement was not satisfactory in light of the serious financial condition of the company. Production had not improved sufficiently, housekeeping and maintenance was not up to par and the manufacture of specialty items was requiring too much personal involvement by Carter due to Rood's inexperience. Having exhausted internal efforts at increasing production in the finishing and shipping department, Carter hired Leon Pinner from outside the company as the finishing and shipping supervisor. Pinner had over one and one- half years experience in the finishing and shipping department with International Paper Company and had been directly involved in the production of specialty items. He had also worked as assistant plant superintendent, plant superintendent and plant manager while employed with Georgia Pacific. For several weeks Pinner worked under Rood's supervision but Carter relieved Rood of any supervisory responsibilities in the finishing and shipping department shortly after Pinner's arrival. Within four weeks or so after Pinner's arrival, the finishing and shipping department was up to production, housekeeping was in order and Carter was tremendously impressed with Pinner's performance. Shortly thereafter Carter, along with his immediate boss - J. T. Woods, elected to switch to a plant superintendent organizational scheme for the plywood plant. This reorganization resulted in the elimination of the three departmental superintendent positions, although as a practical matter two of the positions were vacant at of the time of reorganization. Woods and Carter considered three candidates for the position of plant superintendent - Warren Thornton, Bill Rood and Leon Pinner. There was no advertisement or announcement that Coastal was seeking a plant superintendent. Based on Pinner's superior performance in straightening out the finishing and shipping department, Pinner's experience in the industry and Rood's inability to straighten out the finishing and shipping department, Pinner was promoted to the position of plant superintendent. Rood completed 3 1/2 years of college credits. He was first hired in the plywood industry in 1966. He has worked as a foreman, a supervisor, Dry End Superintendent, and plant superintendent. He has a total of 14 1/2 years of supervisory experience at the different levels of responsibility. Pinner began in the plywood industry in 1967. In addition to various line positions, he has served as supervisor in the glue line, drier and finishing and shipping and as assistant plant superintendent, plant superintendent and plant manager. Carter and Pinner discussed how the reorganization was to be handled and what was to be done with Bill Rood's position as Dry End superintendent. Rood's position was eliminated and he was transferred to day shift glue line supervisor, without a pay cut. His new position was equivalent to that held by any other supervisor and he no longer had the authority to exercise any supervision over the other supervisors. On June 18, 1982, Pinner called a production supervisors' meeting to advise the supervisors of the reorganization. Rood was present at the meeting. Pinner advised Rood that his position had been eliminated and that he was placed in the position of day shift glue line supervisor. He was advised that the change was effective immediately. Pinner also advised all supervisors to pull maintenance while the plant was shut down. Pinner gave strict instructions that all supervisors, including Rood, were to be present on June 20, 1982, to perform maintenance. Rood was advised to run his day shift on June 19, 1982, after which the plant would shut down for maintenance. Following this meeting, Rood no longer had supervisor authority over the other supervisors and no longer had the authority or latitude of a superintendent. On Sunday, June 20, 1982, Rood showed up at the plant and instructed the other two supervisors in the glue line as to what maintenance needed to be done. Rood then left the plant and did not return. Rood performed no actual maintenance work himself. He did not ask permission to leave of either Pinner or Carter, both of whom were present at the plant themselves performing maintenance. The next day, June 21, 1982, Pinner terminated Rood. Carter concurred in this decision. The decision to terminate Rood was based on several reasons. First, Rood had disobeyed a direct order from the plant superintendent, an order which had been given in the presence of other supervisors. Second, Rood had left without asking permission. As an on-line supervisor, like all other supervisors, Rood could not come and go as he pleased. Although, while he was the Dry End superintendent, Rood had necessarily worked at various times (due to the responsibility of having to oversee all shifts in his department), he no longer had such flexibility and was required to be at the plant specific times for a specific shift. He was required to help with maintenance on Sunday just like every other supervisor (including the plant superintendent and plant manager - Pinner and Carter). He failed to do so. Third, his failure to pull maintenance despite direct orders set a bad example for other supervisory personnel, some of who had legitimate reasons for needing June 20 off. At various times Coastal has had problems with other employees, both black and white. No other employee had been terminated on the first instance of absence from work without permission. Infractions by others were dealt with first by warnings or suspensions. Termination did occur with both black and white employees. Rood was treated differently because all of this took place during a critical period for the plant when everyone s cooperation was imperative. In this regard, Rood's situation is clearly distinguishable from that of other employees, both black and white whose jobs had been terminated only after several instances of tardiness because of his prior position and the dire circumstances of the company. Mr. Rood was not fired because he is black. After his termination, Coastal Lumber offered Rood the same opportunity it typically offered supervisory personnel that were fired or quit: he was offered a hourly job as a core layer with the opportunity to work his way back up into a supervisory position. This opportunity was administered equally to both black and white workers (for example, Lacy Stacker and David Brown). Had Rood accepted the core layer job at $6.00 per hour and proved himself capable of good job performance, he probably would have resumed a supervisory role within a month or so, as did Stacker and Brown. Rood made reasonable attempts to secure other employment, but remained unemployed from June 21, 1982 until January 1983. During that period he collected $2,630.00 as unemployment compensation. At the time of his termination, Rood was paid $2,530.00 per month. In January 1983, he was hired by Boise Cascade Lumber Company in South Carolina with an annual salary of $20,991.00. In May 1984, Rood was promoted to a supervisory position and received a pay increase to $27,000.00 per year. 30. Rood lost income of $15,180.00 during 1982, $9,459.00 in 1983 and $5,845.00 from January 1, 1984 until November 1, 1984. The total lost wages for this period was $30,484.00. Rood continues to make $380.00 less per month than while employed by Coastal.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the complaint of William D. Rood, Jr., be DISMISSED and that the Prayer for Relief be DENIED. DONE and ENTERED this 7th day of February, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1985.
The Issue The issue in this case is whether Petitioner has just cause to suspend and terminate Respondent from her contract.
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Gomez has been employed by the School Board for about ten years.6/ Ms. Gomez is a Florida-certified teacher. She is certified to teach exceptional student education (ESE), regular education (kindergarten through sixth grade), and English as a second language (ESL). As a member of the School Board's instructional staff, Ms. Gomez's employment contract was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. A copy of the teacher's employment contract was not offered into evidence, nor was the applicable collective bargaining agreement. As a teacher, Ms. Gomez was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. Ms. Gomez has not been previously disciplined by the School Board. Of the School District personnel performance plan for teacher development assessment forms introduced at hearing, Ms. Gomez received "High Performance" ratings in all categories for three consecutive school years beginning in August 2006 through the end of the school year in June 2009.7/ During the 2011-2012 school year, Ms. Gomez was an ESE kindergarten teacher at Sunrise Elementary School (Sunrise). Arima Santana and Austria Medina de Luna were the two para- professionals assisting in Ms. Gomez's classroom of six or seven ESE students. Ms. Gomez demands a lot of work from her para- professionals because her ESE students demand a lot of direction and attention. She uses teaching centers throughout her classroom for writing, reading, computer activities, and math. Each student has an individual education plan (IEP) with goals, and everything is geared to help the students reach those goals. Ms. Gomez taught the reading and math components and was ultimately responsible for the running of the classroom. Ms. Santana was first employed at Sunrise as an ESE assistant starting with the 2011-2012 school year. Prior to her Sunrise employment, she worked in an office at Flora Ridge Elementary School (Flora Ridge) as an IEP assistant. In this IEP position, she was responsible for making sure all the Flora Ridge students' IEPs were in order and in compliance. Although Ms. Santana has a ten-year-old autistic child8/ and appeared to have some knowledge of autism, her formal education or training as a teacher or teacher's aide in ESE, specifically autism or otherwise, was not documented, discussed, or provided at the hearing. Ms. Santana was in charge of the writing center. She had crayons at her work center. Additionally, she brought in jumbo-size crayons to assist the students with their writing skills. Ms. Santana usually had one or two students at a time, and, when she had a higher functioning student on one side, she would generally have a lower functioning student on the other side. She employed the "hand-over-hand" writing technique to help guide the students in forming their letters, which means that she would place her hand over the student's hand to guide their writing. Her attention would be focused on that student while the other student attempted other work. There were other crayons at other locations in the classroom. Ms. Santana was an assistant to Ms. Gomez; however, at some point in October, she requested a transfer to Flora Ridge. Ms. Santana felt uncomfortable in Ms. Gomez's classroom; yet, she did not explain to the Sunrise administration her reason for requesting the transfer. Ms. Santana and Ms. Gomez differed on their approaches to teaching the ESE students. Ms. de Luna was first employed at Sunrise as an extended-day program worker for the 2010-2011 school year. The following year, Ms. de Luna was hired as an ESE assistant in Ms. Gomez's classroom. Ms. de Luna has a degree in civil engineering and maintained a Florida teaching certificate for several years.9/ Ms. de Luna was in charge of the computer center. She was also responsible for transitioning the students from one center to another and assisting the students with their bathroom needs. She usually had two or three students at the computer center at a time. Ms. de Luna had taught lower- performing students in math subjects before, but her training in ESE or autistic students was limited to a course or two offered by the School Board. Ms. de Luna and Ms. Gomez did not share the same teaching techniques or experiences, and Ms. de Luna called Ms. Gomez a witch because of her teaching techniques. J.A. (or the student) was a non-verbal, five-year-old, autistic student in Ms. Gomez's classroom. J.A. functioned at a lower level than the other students. J.A. was known to eat inedible objects such as rocks, mulch, and crayons prior to entering Ms. Gomez's classroom. An IEP is developed by a specific committee (comprised of the student's parent(s), an ESE and regular education teacher, and related school district service personnel) for students with special educational needs to ensure that the child receives a free and appropriate public education in the least restrictive environment. An IEP is created to address the specific instruction, related services, accommodations, supplemental aides, and services that an exceptional student needs to be successful. The School Board directs that the ESE teacher is responsible for "drafting the IEP." J.A.'s father10/ was present when the IEP was written on June 3, 2011, following J.A.'s evaluation on March 31. There was no mention in the IEP that J.A. had a propensity to place inedible objects in his mouth, and, therefore, there was no goal established for him to stop the behavior. However, both J.A.'s occupational therapy assessment (date of test: April 25, 2011) and J.A.'s psycho-educational reevaluation report (evaluation date: March 31, 2011) reflected that J.A. "seems to need to have something in his mouth" and "puts inedible things in his mouth." The report also contained some "stereotyped behaviors" that J.A.'s father reported to the psychologist. It was recorded that J.A. would frequently "lick, taste or attempt to eat inedible objects."11/ The School Board personnel were aware of J.A.'s propensity to eat inedible objects; yet, there was no plan to modify that behavior. Several School Board personnel placed the responsibility for addressing this issue with others involved with J.A. Unfortunately, no person in authority timely took that necessary action. Ms. Gomez was not J.A.'s ESE teacher when the IEP was drafted in June 2011,12/ nor was she present when it was discussed or written. Linda Schroeder-King is the co-coordinator for ESE for the School Board. Her position involves administrative duties as well as the supervision of the special educational services for students throughout the district. She is familiar with the Individuals with Disabilities Education Act (IDEA) and the School Board's policies and procedures regarding ESE students and their needs. The School Board utilizes positive behavior support for all students. The School Board does not have a document that contains an approved aversive therapy policy and procedure, nor does the School Board have someone who is responsible for approving aversive therapies. Ms. Schroeder-King testified that a behavior analyst would do an evaluation and would have to make a recommendation, but that the recommendation would have to be approved. Yet, no person was identified who could approve (or disapprove) such a recommendation. J.A. was assigned to Ms. Gomez's classroom and began the 2011-2012 school year in August 2011. Shortly after the school year began, Ms. Gomez, Ms. Santana, and Ms. de Luna each noticed that J.A. put inedible objects in his mouth while in the classroom and on the playground. J.A. participated in the various centers around the room.13/ It was while at the writing center that Ms. Santana noticed that, when she turned to assist another student, J.A. would grab crayons and put them in his mouth. Although not done daily, J.A. would frequently grab a crayon and chew it. Ms. Gomez or one of the para-professionals would attempt to remove the crayons from J.A.'s mouth; however, when an autistic child clinches his mouth shut, there is little that can be done to open it. Sometime in early October 2011, in an attempt to modify J.A.'s eating of inedible objects, Ms. Gomez peeled the paper wrapper off several jumbo-size crayons and placed them in a disposable cup. She then poured Louisiana hot sauce over the crayons. Ms. Gomez allowed the cup of hot sauce crayons to sit. Then Ms. Gomez removed the hot sauce crayons, placed them on a towel, and allowed them to dry. There was a strong odor to those hot sauce crayons. Ms. Gomez instructed Ms. Santana to put the hot sauce crayons in a plastic zip-lock baggie labeled with J.A.'s name and directions that other students were not to use those crayons. Ms. Santana complied with this request. There was no evidence presented that the hot sauce crayons retained any of the hot characteristics of hot sauce other than a strong odor. Although the baggie with the hot sauce crayons was placed on the table at the writing center for several days, neither Ms. Santana nor Ms. de Luna ever saw Ms. Gomez put a hot sauce crayon in J.A.'s mouth. Ms. Santana saw J.A. pick up other non-hot sauce crayons and chew or mouth them while at the writing center during that time. Play-doh was also in the classroom; however, it was seldom if ever used. None of the classroom adults observed J.A. grabbing, mouthing, chewing or eating any Play-doh at any time. At approximately the same time as the hot sauce crayons were made, Ms. Gomez also massaged hot sauce into some black Play-doh. As directed, Ms. Santana placed the hot sauce Play-doh in a separate plastic zip lock baggie labeled with J.A.'s name and directions that other students were not to use that Play-doh. At the time of the alleged Play-doh event, Ms. Santana was at the writing center while Ms. Gomez was at her desk with J.A. Ms. Gomez made some statement and Ms. Santana turned to see what was happening. Ms. Santana testified that Ms. Gomez placed "a little piece of play-doh" or "physically put a piece" in his mouth and that J.A. spit it out. Ms. Santana's testimony is undermined by her inability to describe other details surrounding the alleged incident.14/ Ms. de Luna repeatedly testified that, when Ms. Gomez allegedly said "look, look," Ms. de Luna turned away because she did not want to watch what was happening with J.A. Yet, she testified that she did not see J.A. spit anything out, that he just chewed something. Her testimony contradicts what Ms. Santana said she saw and does not support any visual confirmation of what was or was not placed in J.A.'s mouth. Ms. Gomez denies she ever put Play-doh or anything in J.A.'s mouth. Based on the totality of the Play-doh evidence, there is no basis in this case to credit Ms. Santana's testimony over that of Ms. Gomez. Ms. Santana, while a sincere witness, was unable to provide specific details, and her testimony is insufficient to support a finding of guilt as to the alleged Play-doh incident. Ms. Santana did not balk at bagging the hot sauce crayons or Play-doh and did not confront Ms. Gomez after she witnessed the alleged Play-doh incident. Ms. Santana did not attempt to determine whether or not J.A. was harmed in any fashion. While it is understood that J.A. was non-verbal, he did have other means of communication. J.A. could point to things and did engage in classroom activities, albeit in an unconventional manner. J.A. did not show any reaction to the alleged Play-doh incident. Further, as no one ever saw Ms. Gomez place a hot sauce crayon in J.A.'s mouth, and no one saw a hot sauce crayon in his mouth, there was no reaction to see. On October 14, 2011, several days to a week (or longer) after the alleged Play-doh incident, Ms. de Luna and Ms. Gomez had a conference with Cara Colovos, Sunrise's assistant principal. The conference was allegedly about on-going issues between the two.15/ There was an airing of grievances from both parties. Ms. de Luna gave the hot sauce bottle, the bag of hot sauce crayons, and the bag of hot sauce Play-doh to Ms. Colovos. There is no credible evidence that Ms. Gomez "insisted on the child [J.A.] actually licking or eating"16/ the hot sauce crayons or Play-doh or that she "made sure that the student put these materials [hot sauce crayons and hot sauce Play-doh] in his mouth." (emphasis added). J.A. was at Ms. Santana's writing center when the hot sauce crayons were present. And, although Ms. Santana allegedly saw Ms. Gomez put Play-doh in J.A.'s mouth, the specific allegation was either he licked or ate the Play-doh (which he spit out), or he put the Play-doh in his own mouth, which he did not. In this case, it is clear that placing hot sauce on crayons and Play-doh warrants some form of discipline. Although no noticeable harm came to the student or any student, the mere creation of the material is contrary to School Board policy. There was no credible evidence introduced that Ms. Gomez's effectiveness as a teacher in the school system was impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered by Petitioner, Osceola County School Board: (1) finding Respondent's behavior to be inappropriate; (2) upholding the suspension without pay to- date; (3) reinstating Respondent as a classroom teacher; and placing her on probation for a period of not less than two years. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of August, 2012.
The Issue The issue is whether Respondent is sleeping in class and failing to supervise his students, so as to violate the prohibitions against misconduct in office and incompetence, as provided by Florida Administrative Code Rule 6A-5.056.
Findings Of Fact Respondent has been employed by Petitioner as a classroom teacher for 12 years, all at Cypress Bay High School. During his teaching career, he has taught physical and earth science, except, on occasion, when he has been assigned to teach biology. He has earned exclusively satisfactory marks on each of his annual evaluations, including his most current evaluation. On the evening of April 8, Respondent and his wife were up all night with their special-needs daughter. The next morning, Respondent reported to work punctually and taught his first period course. Respondent was exhausted from lack of sleep the previous night. While seated in his chair between classes, he lifted his eyes toward the heavens, emitted a quiet sigh, and prayed silently for the strength to get through the day at work. His head tilted back and his eyes closed, Respondent was lost in prayer as the students filtered into the classroom.1/ Although in a deeply relaxed state, Respondent could hear the students taking their seats and preparing for class to start. Stirring slightly at the bell signifying the start of class, Respondent emerged from his prayerful reverie after no more than two minutes into second period; he was in this state for no more than four minutes immediately prior to the bell. On these facts, it is impossible to infer from the evidence that Respondent was sleeping at the start of class. He was disengaged, though, so, as he began instruction, he appropriately apologized for his inattention for what was no more than the first couple of minutes of class and explained that he and his wife had had a rough night with a sick child. At all material times, the white board at the front of the classroom was full of written material, and the students had bellwork to perform at the start of every class. There were no behavioral problems during the time that Respondent had failed to give the class his undivided attention, and his inattentiveness did not affect learning that day.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2014.
Findings Of Fact Luis Ortiz was a seventh grade student at Nautilus Junior High School during the 1984-85 school year until his assignment to the alternative school. Ortiz is 13 years old and was born on March 11, 1972. Prior to his enrollment in junior high school in 1984, Ortiz was an A and B student who exhibited good behavior. He did not adjust well to the new school at which he began junior high school. Ortiz was involved in eight incidents of misbehavior at Nautilus. On October 29, 1984, Ortiz was rude, discourteous; failed to complete an assignment and engaged in general disruptive behavior. He was placed on indoor suspension for general disruptive behavior and defiance of school authority on December 6, 1984. On January 11, 1985, Ortiz was referred for discipline for general disruptive behavior, use of provocative language and defiance of school authority. He was referred for counseling for general disruptive behavior, being rude and discourteous, and cutting class on January 25, 1985. Ortiz was placed on outdoor suspension for general disruptive behavior and defiance of school authority on January 28, 1985. Ortiz' behavior appeared to improve and he was not involved in further disciplinary incidents until April 2, 1985, when he was again placed on outdoor suspension for general disruptive behavior end defiance of school authority. He was recommended for assignment to opportunity school for general disruptive behavior and defiance of school authority on May 15, 1985. Before he was reassigned to opportunity school, Ortiz was reprimanded for general disruptive behavior, use of provocative reprimanded for general disruptive behavior, use of provocative language, defiance of school authority, and being rude and discourteous. Ortiz has been somewhat unsuccessful academically in his first year in junior high school. He was failing three classes before his last outdoor suspension and assignment to opportunity school. He then failed all of his subjects because he failed to complete his course work and failed to take his final exams. Ortiz must repeat seventh grade. The School Board failed to present any evidence of efforts made to provide assistance to Ortiz regarding this lack of success in academics. In fact, the school board's only witness had no knowledge of Ortiz' grades or behavior prior to beginning seventh grade at Nautilus. Additionally, the school board's witness provided no details about the actual misbehavior of Ortiz. Instead, Smith merely read from a computer printout, without specifying the nature of the acts which lead to the disciplinary referrals. It is therefore impossible to determine if Ortiz' acts were of a major or minor nature. Dennis Segall, a teacher who knew Ortiz from elementary school, has continued to work with Ortiz in the last year. According to Segall, Ortiz was successful and well-behaved prior to the 1984-85 school year. He recognizes that Ortiz' behavior changed at Nautilus and states that Ortiz knows he "messed up" at Nautilus and is ready to change his attitude. Mrs. Ortiz moved during the summer of 1985, and now resides in a different school district. If Ortiz is allowed to return to the regular school program, he would attend Citrus Grove Junior High School.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Luis Ortiz to the regular school program. DONE and ENTERED this 26th of September, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esq. Suite 800, 300 Executive Plaza 3050 Biscayne Boulevard Miami, FL 33137 Mrs. Maeva Hipps School Board Clerk 1450 N.E. 2nd Avenue Room 401 Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 N.E. 2nd Avenue Miami, FL 33132 Ms. Esther Ortiz 1255 S.W. 1st Street Apartment 403 Miami, FL 33135
