The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. Respondent is a teacher. At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator's Certificate 1266409, covering the area Exceptional Student Education (ESE). Respondent's Background Respondent earned a bachelor's degree in special education from New York University and a master's degree in early childhood special education. From 1998 to 2015 she taught ESE in self-contained classrooms (classrooms dedicated to ESE students) in New York. Respondent moved to Florida and began working for Orange County Public Schools, where she was employed in February 2015 as an ESE teacher at Ocoee Elementary School (Ocoee Elementary). For reasons unrelated to this case, Respondent was moved to the position of behavioral specialist (a non-classroom position), but returned to ESE classroom teaching in the fall of 2017. Crisis Prevention Intervention (CPI) is a "best practice" crisis de- escalation protocol used district-wide in Orange County Public Schools. Respondent is CPI trained and certified. In June 2017, Respondent injured her shoulder and ankle at work while she was attempting to pick a student up from the floor. She returned to work after a few weeks of physical therapy. She continues to have pain in her shoulder and ankle. Respondent also suffers from asthma and recurrent nerve pain. By all accounts, Respondent was a dedicated and effective ESE teacher at Ocoee Elementary. She used her own funds to purchase supplies for her ESE students, including exercise balls for autistic students to prevent them from rocking in standard-issue chairs. Her evaluations from Ocoee Elementary were all "effective" or "highly effective." All of the witnesses who had occasion to observe Respondent in the classroom gave her high marks. There is no evidence that Respondent ever acted in anger or frustration with a student. She is accused of having done so in the incident at issue here. Respondent's Classroom For the fall of 2017, Respondent taught ESE students in a self- contained classroom at Ocoee Elementary. The grade level of her students spanned three grades, from second to fourth grade. The class size was approximately 12 students. The students were autistic and/or intellectually disabled. Paraprofessionals were assigned to assist Respondent in the classroom, including Cory Baker, Chanda Nguyen, and Michelle Hartley. The classroom had a designated "safe space," a small open area approximately three to four feet wide located between a large portable closet on wheels, a file cabinet on one side, and a wall on the other side. The safe space floor was covered with a soft mat and pillows. Posters on the safe space wall showed students how to breathe, relax, and decompress. A bathroom was located inside the classroom. The door opened out to the classroom. The door could be locked from the inside. Respondent and the paraprofessionals assigned to the classroom had access to an Allen key to unlock the bathroom door, but a disc had to be "popped" off of the lock to use it. Ocoee Elementary had a "crisis team" that could be called to assist when a student was in crisis, including removing the student if necessary. The crisis team included Juan Colon, who was the school's behavior specialist, and Isaac Bowen, a behavior trainer. The crisis team typically responded to a call for assistance within one to two minutes. The Incident with Student E.T. E.T. was assigned to Respondent's ESE classroom for the fall of 2017. He was 12 years old at that time. The other students ranged from seven to nine years of age. At approximately 5'6", E.T. was not only the largest student in the class, but he was also larger, and about four inches taller, than Respondent. E.T. was considered to be intellectually disabled. He was learning on a first or second grade level and his IQ was below 70. Some of the other students in the classroom were autistic, but E.T. was not. A Behavior Intervention Plan (BIP) is a written plan that identifies problematic behaviors of a particular ESE student and strategies staff should use to address them. E.T. had a BIP that listed three problematic behaviors: (1) noncompliance (that is, refusing to perform tasks, by saying words like "no," "this is stupid," making faces or squeaking noises, or simply walking away); (2) physical aggression (including aggressive posturing towards his peers and throwing small objects like pencils, erasers, and papers); and (3) elopement (defined as walking away from staff). On the morning of October 12, 2017, E.T. began engaging in disruptive behavior that ultimately required his removal from the classroom. The disruptive behavior began when E.T. crawled under the desk of one or more other students and grabbed crayons and pencils that were not his. Respondent attempted to de-escalate and redirect E.T. with oral instructions, but her attempts failed. Ultimately, Respondent called the crisis team for help with E.T. Mr. Bowen arrived at Respondent's classroom within a short time with two other behavior trainers. The rest of the class was taken to the playground. Respondent and Mr. Bowen sat with E.T. at a table to work on compliance tasks, and E.T.'s behavior and mood improved. Respondent and Mr. Bowen walked with E.T. to the playground to retrieve the rest of the class. Respondent, E.T., and the rest of the class went back to the classroom. Mr. Bowen and the other behavior trainers left to respond to another call. On the way back to Respondent's classroom, E.T. refused to walk in line with the other students. One of the paraprofessionals walked with E.T. and redirected him back to the line. Back in the classroom, E.T.'s disruptive behavior resumed. He grabbed pencils and crayons that were not his and crawled under the desks of other students. He also blew mucus out of his nose, spit saliva onto his hands, and wiped his mucus and saliva all over his body. Respondent attempted to redirect E.T., initially by ignoring his behavior. When that failed, she attempted to redirect him with instructions and incentives. This strategy also failed. Finally, Respondent asked two of the paraprofessionals, Ms. Nguyen and Ms. Hartley, to take the other students to the sensory room, an activity room located outside of Respondent's classroom. The class was removed in the hope that E.T.'s behavior would improve once he was denied an audience of his peers. Respondent asked Ms. Baker to remain in the classroom with her to assist with E.T. When E.T.'s behavior did not improve, Respondent and Ms. Baker called the crisis team again, but this time they were unable to reach Mr. Colon or Mr. Bowen because they were either responding to other calls for help or in a radio "dead zone." Respondent thought E.T. might respond better if he was allowed to talk with his mother, so she called E.T.'s mother and allowed him to talk to her on the class telephone. At that time, E.T. was under a table in the classroom pretending to be a turtle. E.T. feigned illness (fake coughing) and told his mother he wanted to go home. He also asked for potato chips to eat. The call terminated and E.T. refused to come out from under the table. After repeated unsuccessful attempts to coax E.T. out from under the table without laying hands on him, Respondent carefully pulled E.T. from under the table, making sure he did not hit his head. E.T. was not injured in any way in the process. Respondent then took E.T. to the classroom safe space. Once in the safe space, E.T. started to crawl under the portable wheeled closet. Respondent was concerned E.T. would injure himself in the process— legitimately so—and lifted him up and held him against the wall. E.T. made himself go limp to become "dead weight" and slumped down to the floor mat. Respondent lifted him back to his feet again and E.T. slumped back down to the floor. This process was repeated several times until E.T. reached on top of the closet and grabbed a basket of toys, causing the basket contents to fall to the safe space floor. The basket included toy train cars made of die cast metal. E.T. grabbed one of the train cars off the floor and threw it over the head of Ms. Baker, who was standing in the middle of the classroom. He threw another train car at Respondent, striking her in the head. Respondent stepped on one of the train cars and fell hard against the wall, pinning E.T. between her and the wall. E.T. said, "My chest hurts, my heart hurts," and "I think I am going to die." Respondent's shoulder hurt and she was short of breath. Having reached her physical limits, Respondent decided to remove E.T. from the safe space because she was concerned he would be able to reach other items on top of the closet, including a heavy paper slicer with a sharp cutting arm. Respondent's plan was to transport E.T. out of the classroom to the "calm-down" room, an empty classroom used to allow students in crisis to decompress. The calm-down room is located about 20 to 30 yards from Respondent's classroom. Respondent guided E.T. out of the safe space and toward the classroom door, with his arm under her armpit. This would be an approved CPI transport hold but for the fact that CPI transport requires two adults to transport a student in crisis in this manner, with each of the student's arms under the armpits of an adult on each side of the student. Ms. Baker—who was also CPI-trained—did not offer to serve as the second adult or provide any other assistance to Respondent while she was struggling to transport E.T. out of the safe space. E.T.—apparently unfazed by falling with Respondent against the safe space wall moments earlier—started to laugh and grabbed crayons off the desk of another student as he was being guided toward the classroom door. E.T. pulled away from Respondent and started walking quickly ahead of her. Respondent tried to maintain a hold on E.T., but was unable to do so without help from anyone (such as Ms. Baker, who continued as a spectator to Respondent's struggles). E.T. announced he was going to the bathroom and headed for the bathroom door. Respondent rushed to stop him, but tripped and landed hard against the bathroom door with E.T. Respondent was concerned—legitimately so—that E.T. could lock himself in the bathroom and create a mess or injure himself before the key to the bathroom could be accessed. Respondent applied all of her weight to the bathroom door, while E.T. held onto the doorknob, to prevent him from accessing the bathroom. Respondent held E.T. against the bathroom door, using her forearm against his chest. Respondent then struggled to lead E.T. away from the bathroom door and toward the classroom exit door, sliding with him against the wall. Natalie Hatch, a staffing specialist at Ocoee Elementary, and Mr. Colon entered the classroom door when Respondent was struggling to keep E.T. out of the bathroom. Mr. Colon immediately assisted Respondent to escort E.T. to the calm-down room using the dual-hold CPI transport position. On the way to the calm-down room, E.T. was crying and upset and he continued to wipe mucus and saliva on his body. In the calm-down room, E.T. tore paper and threw it on the floor. After about 15 minutes, he calmed down and Mr. Colon talked to him about the importance of following instructions. Ms. Colon asked E.T. to pick the paper off the floor and E.T. complied. Mr. Bowen also arrived and walked with E.T. and Mr. Colon back to Respondent's classroom. There were no further incidents involving E.T. that day. E.T. was not injured, physically or otherwise. The Findings of Fact regarding the incident with E.T. are based almost entirely on Respondent's testimony, which the undersigned found to be highly credible. The findings are also consistent with the credible testimony of Mr. Colon, who found nothing wrong with Respondent's attempt to keep E.T. from going into the bathroom by holding him against the bathroom door, nor did he find anything wrong with anything else he witnessed after entering Respondent's classroom. Ms. Baker stood in the middle of the classroom while Respondent struggled with E.T. Ms. Baker could not see all of the safe room interactions between Respondent and E.T., because her field of view was blocked by the closet and cabinet that formed the boundary of the safe space. Ms. Baker made repeated calls to the crisis team, but otherwise failed to offer any assistance to Respondent. Ms. Baker did not voice any objection to the manner in which Respondent physically interacted with E.T. The following day, Ms. Baker complained to administration that Respondent physically mistreated E.T. This led to an investigation of the incident and ultimately to Respondent's termination. Rejection of Corey Baker's Testimony Petitioner relies chiefly on the testimony of Ms. Baker to prove its case. For the reasons that follow, Ms. Baker's testimony was not credible and has not been accorded any weight. Ms. Baker's account of the incident differed from Respondent's in that she contends Respondent "manhandled" E.T. out of frustration, including: "snatching" him out from under the table when he was pretending to be a turtle; and repeatedly slamming E.T. hard against the wall of the safe room; and later the bathroom door. Essentially, Ms. Baker accuses Respondent of physically mistreating E.T. out of frustration with his conduct that day. Ms. Baker's testimony is rejected where it conflicts with the testimony of Respondent and Mr. Colon for several reasons. First, Ms. Baker 's field of view of the safe space was obstructed. No credit has been given to her testimony about what occurred when E.T. and Respondent were in the safe space together, because she could not see all of what happened there. That she would offer testimony describing events she could not have seen casts doubt on her overall veracity. Ms. Baker's credibility also suffers from her admitted failure to intercede in any way to aid a student she now claims to have been physically mistreated for a prolonged period of time. If, as Ms. Baker contends, Respondent "manhandled" E.T. while the three were alone in the classroom, then Ms. Baker should have attempted to separate the two or at least warn Respondent that she was being too rough; she did neither. Here is Ms. Baker's explanation for why she stood idle when Respondent and E.T. struggled: Q. So why didn't you jump into that space and help her lift him up? Why didn't you do something? A. Because, like I said, I do not feel comfortable with it being a blind corner [referring to the safe space] and already seeing stuff done that shouldn't have been done. If somebody came in, it would have literally looked like we were both just trying to take this kid out. In other words, Ms. Baker claims she did nothing to protect E.T. because she might also get into trouble. This explanation is rejected. It is inconceivable that Ms. Baker would sit back and do nothing if she believed Respondent was mistreating E.T. The rational explanation for why Ms. Baker did nothing to intercede to stop Respondent is that Respondent's actions were appropriate under the circumstances. Finally, Ms. Baker's credibility suffers from her embellishment of the incident, including the trauma she claims to have suffered after-the-fact. Ms. Baker testified that the incident was so traumatic that she had nightmares for a week or two afterwards. She went so far as to blame the stress of witnessing the incident for ending her relationship with her boyfriend. There was no evidence that E.T. was injured in the slightest. Indeed, as Ms. Baker admitted, E.T. laughed and continued to grab crayons that were not his after he left the safe space with Respondent. Ms. Baker grossly distorted the resulting trauma she claims to have suffered. For all of these reasons—and the undersigned's observation of the demeanor of the witnesses who testified live at the final hearing— Ms. Baker's account of the incident with E.T. is found to be grossly exaggerated and unreliable, and is given no weight.2 The OCPS Investigation Petitioner also offered the testimony of Acacia Vierbicky, an investigator for Orange County Public Schools (OCPS). Ms. Vierbicky was charged with investigating the incident involving E.T. after Ms. Baker complained to administration. Ms. Vierbicky testified that during the investigation, Respondent admitted to her that she "snatched" E.T.'s arm from underneath the table when he was pretending to be a turtle, and pinned him against the wall—face first—in the safe space. The Administrative Complaint does not allege facts regarding the manner in which Respondent removed E.T. from under the table as a predicate for any charges. Regardless, Respondent denied that she "snatched" E.T. from under the table and explained why she removed him from underneath the table. Respondent's testimony was credible and is accepted over Ms. Vierbicky's recollection of what she was told during her investigation. 2 Additional evidence was offered to impeach Ms. Baker's credibility. First, to suggest bias, Respondent and Ms. Baker were close friends at one time, but that relationship soured the summer before this incident occurred. Second, another teacher testified that Ms. Baker came forward with false allegations against her in an attempt to get her fired. Finally, another witness testified that Ms. Baker is prone to exaggerate events involving students in general. While all of this testimony may be true, it is unnecessary to rely upon it to reach the conclusion that Ms. Baker's testimony is unreliable. The characterization of whether Respondent "pinned" or "held" E.T. against the wall of the safe space with the weight of her body is not an important distinction here. What is important is that Respondent did so to prevent E.T. from crawling under the wheeled closet or grabbing dangerous items from the top of the closet. Holding E.T. against the wall under these circumstances—whether an approved CPI hold or not—was entirely reasonable to prevent E.T. from hurting himself or others. Ms. Vierbicky's testimony as to her recollection of Respondent's admissions is rejected where it differs from Respondent's live testimony.3 Crisis Prevention Intervention CPI is not the law; it has not been adopted by statute or rule. Petitioner offered the testimony of Kimberly Ann Smith, an expert in CPI and behavior analysis. Ms. Smith testified credibly that pinning or holding a student against a wall or holding a student with his arm behind his back is not an approved CPI hold. But, as Ms. Smith repeatedly acknowledged, CPI is a "best practice" protocol. As such, restraining a student with a non-CPI approved hold can be reasonable under certain circumstances even if it is not the "best practice." Ms. Smith testified that it is acceptable to physically restrain a student when the student may hurt himself or others. Ms. Smith also agreed that E.T. could have injured himself crawling under the wheeled closet and that throwing the metal trains presented a legitimate safety concern. The CPI training materials offer examples of approved holds that one teacher can apply to restrain a student, but these holds are not appropriate for a student 3 Ms. Vierbicky's investigative summary of the incident involving E.T. was admitted as an exhibit in this proceeding, as were the witness statements she collected during her investigation. Although admitted, these exhibits have not been relied upon here because they are largely hearsay. See § 120.57(1)(c), Fla. Stat. It is also noteworthy that there are obvious material omissions from Ms. Vierbicky's investigative summary, including the failure to mention that E.T. grabbed and threw metal trains while in the safe space and the failure to mention the fact that E.T. was not injured. Thus, even if not hearsay, or predicated on hearsay, the investigative summary represents an incomplete assessment of the incident with E.T., and is unreliable for this reason alone. who is taller than the teacher. In fact, these holds should only be used on a student who is at least a head shorter than the teacher. E.T. is significantly taller than Respondent. Petitioner offered no evidence of a CPI-approved hold that would have been appropriate for Respondent to use under the circumstances she confronted with E.T. Petitioner also offered testimony from Ms. Hatch to show that Respondent did not use a CPI-approved restraint when E.T. was attempting to enter the bathroom. Ms. Hatch testified that when she entered the classroom, she saw Respondent holding E.T. with his face against the wall with his hand behind his back. This differs from Mr. Colon's testimony, which was that Respondent was holding E.T. with his back against the bathroom door with her forearm on his chest. Although Mr. Colon's and Ms. Hatch's recollection of the positioning of Respondent and E.T. differ, the distinction is not material. Respondent had a legitimate concern to keep E.T. from entering the bathroom under the circumstances, and her attempts to do so—although not a CPI-approved hold—were reasonable under the circumstances. For all of these reasons, Respondent's admitted failure to use CPI- approved holds to restrain E.T. is not evidence that she failed to make reasonable effort to protect E.T. from any potentially harmful conditions, or that she exposed him to a risk of mental or physical harm. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent, in fact, made reasonable effort to protect E.T. from conditions harmful to learning and/or to his mental or physical health and/or to his safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of March, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 27th day of March, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Law Office of Ron Weaver Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Is Respondent school teacher guilty of violating Rule 6B-1.006(3), Florida Administrative Code, by failure to make reasonable effort to protect students from conditions harmful to their physical safety? Is Respondent guilty of violating Section 231.36(1)(a), Florida Statutes, by misconduct in office and/or willful neglect of duty?
Findings Of Fact Respondent, Kelly L. Bradley, Florida Teaching Certificate 768569 (expiration date June 30, 2000), is a certificated teacher in the State of Florida and held a teaching certificate in 1998-1999. She taught at Lola M. Culver Elementary School during the 1998-1999 school year and was an employee of Petitioner Duval County School Board. Respondent had been employed by Petitioner from January 1996 through October 1996, as a substitute teacher at several elementary schools and was employed full time at Lola Culver commencing October 1996, teaching emotionally handicapped students. This was her first full-time job as a teacher. She received satisfactory evaluations with favorable comments for each of her three years at Lola Culver. She has no record of prior discipline. During most of the 1998-1999 school year, Respondent and Kristy L. James, another certificated teacher, were co-sponsors of the School Safety Patrol at Lola Culver. Respondent volunteered to replace another co-sponsor who left in mid-year. This was her first experience as a Safety Patrol co-sponsor. A "reward" trip near the end of each school year was traditional for Lola Culver's Safety Patrol members. Ms. James had been a co-sponsor of the Safety Patrol for the 1996-1997, 1997-1998, and 1998-1999 school years, but neither she nor Respondent had received any significant instruction in the duties and responsibilities of sponsors. Near the end of the 1998-1999 school year, Ms. James and Respondent planned an overnight trip to Orlando for Safety Patrol members for June 4-5, 1999, a Friday and a Saturday. Ms. James exclusively handled the paperwork for approval of the June 4-5, 1999, field trip by Lola Culver's current principal, Carolyn Davis. She also exclusively handled the permission slips and medical authorizations signed by parents and all arrangements for "chaperones." Swimming had been on the agenda sent home by Ms. James and approved by the prior principal in each of the previous school years. Swimming was also on the 1999 agenda, which instructed students to pack a swimsuit. For the 1999 trip, Ms. James also sent another document, outlining the cost of the field trip for students and soliciting chaperones, and permission slips/medical releases to all the children's parents. Only the agenda mentioned swimming. The permission slip did not expressly mention swimming or solicit information about a child's ability to swim. It solicited only health information and authority to treat in an emergency. Eight fifth grade students (boys and girls) went on the trip, including Litoria Gibson, a non-swimmer, who ultimately drowned while on the field trip. Nowhere on the signed permission slip returned to Ms. James did Litoria's parents state that she could not swim or should not swim. Unbeknownst to anyone concerned, Litoria's mother had instructed Litoria "not to get in the water" during the field trip.1 Respondent and Ms. James went on the trip as co- sponsors and as chaperones. Respondent invited a personal friend and substitute teacher, Eric Lee, to go on the trip as a chaperone. Ms. James' husband, Joey, came along in the same capacity, and two parents, Gail Brown and Hazel Morningstar, also went on the trip. Hazel Morningstar testified that she had considered herself present on the trip only to watch her own son and, based on an oral promise to Rita Whorten's parents, to watch Rita Whorten. In a conversation during the planning stages, Ms. James stated that Rita Whorten would be "with" Ms. Morningstar and her son. At no time material did Ms. Morningstar affirmatively notify anyone she would not act as a group chaperone. In fact, she considered herself to be a chaperone. Gail Brown is the mother of Marcus Brown, one of the Safety Patrol students. Ms. Brown testified that she only went on the trip because she does not allow her son to go on trips involving water by himself, even though Marcus knows how to swim. She further testified that she did not feel any chaperoning responsibility toward any child but her own. However, she knew the teachers would assume that she was going to chaperone all the children, and she never affirmatively notified anyone that she would not act as a group chaperone. The group traveled via a school bus, driven by Petitioner's approved bus driver, Patricia Benton. Ms. Benton was paid for driving the bus, but personally paid for her teenage son, whom she brought along on the trip. Ms. James had asked Ms. Benton to drive the bus, and Ms. Benton's son's inclusion in the trip was in the nature of a "perk" for Ms. Benton. Ms. Benton's son was never considered either a responsible adult or a chaperone. Ms. Benton had accompanied Ms. James and the Safety Patrol on a similar field trip at the end of the 1997-1998 school year and had participated in watching over the children at that time. However, herein, Ms. Benton testified that on the 1999 trip she considered herself only along to drive the bus and watch over her own son. Indeed, neither Ms. James nor Respondent counted Ms. Benton as a "chaperone" in calculating the "one chaperone per every ten children" that they understood to be Petitioner's requirement for field trips. Nonetheless, both teachers considered Ms. Benton to be another responsible adult. Ms. Benton admitted that at times on this trip she was prepared, if necessary, to discipline any disrespectful children. Neither teacher inquired of Ms. Benton if she could or would swim. Respondent and Ms. James considered themselves, Joey James, Mr. Lee, Ms. Brown, and Ms. Morningstar to be chaperones. Neither teacher ever inquired of Mr. Lee, Ms. Brown, or Ms. Morningstar whether they could or would swim. This was Respondent's first overnight field trip. As teachers and Safety Patrol co-sponsors, Respondent and Ms. James regarded themselves as jointly responsible and in charge. Everyone else appears to have looked to Ms. James for leadership. The bus departed from Lola Culver Elementary School at 7:00 a.m., Friday, June 4, 1999. After arriving in Orlando, the group spent most of the day at Sea World. While the group was at Sea World, Respondent and Ms. James assigned responsibility for specific children to specific adults, except for the bus driver, Ms. Benton. No adult protested the assignments. At Sea World, Respondent and Eric Lee were responsible for Litoria Gibson and Makia Hicks. These assignments were essentially designed to keep everyone together and to keep the children under supervision in the amusement park, but they were not intended to last beyond the Sea World portion of the trip. However, no reassignment of responsibility for any child occurred after the group departed Sea World. In the late afternoon, the group was bused to Howard Johnson's South International, a motel. After they checked in, the students were allowed to go swimming in the motel pool. Upon arrival at the motel at approximately 5:45 p.m., room keys were distributed, and it was agreed that adults and children would meet by Ms. James' room, which fronted on the pool area. The children were instructed not to go to the pool until the adults were ready. The pool at the motel was a very large one located in an interior courtyard. The water was 3.5 feet deep at the shallow end and 5.5 feet deep at the deep end. No lifeguard was provided. Nonetheless, the pool had been used safely for the 1998 Safety Patrol field trip, and Ms. James and Ms. Benton were familiar with the motel layout and the pool. Ms. James considered herself a good swimmer, having been a swimmer since childhood. She was comfortable around water. Respondent was an experienced swimmer and athlete. She had learned to swim in early childhood, had had formal lessons during high school, and had done a lot of pool training in connection with playing college volleyball. She had continued to swim regularly in her adult life. She was trained in CPR. Some of the adults, including Respondent, and all of the children met as agreed and proceeded to the pool area. Prior to going to the pool, Respondent briefed all the children on not running or wrestling in the pool and pool area. Initially, Ms. James remained in her room to make a telephone report to Lola Culver's principal, Carolyn Davis. Joey James and Ms. Morningstar arrived at the pool dressed to swim. Litoria Gibson went to poolside wearing a red jumpsuit which would not be considered an unusual item for a child to wear to go swimming. The children entered the pool for the first time at approximately 6:00 p.m., under the direct supervision of Joey James and Ms. Morningstar, who got into the pool's shallow end with some of them. Ms. Morningstar asked who could not swim. Litoria Gibson and another girl raised their hands. Litoria said, "I can't swim." She never volunteered that she was not allowed in the water. Ms. Morningstar told the two girls that they should stay in the shallow end of the pool. Litoria Gibson was tall for her age, approximately the same height as Ms. Morningstar. Ms. Morningstar invited Litoria into the pool and spent 15-30 minutes with her in the pool's shallow end. They squatted to get wet and acclimated to the water. Ms. Morningstar showed Litoria how to stand so that the water only reached her chest and how to doggie paddle and told Litoria that if she got in trouble she could lie flat on her back and float. Litoria then felt comfortable in the water and, giggling happily, entered into dunking games with the other children. When Ms. Morningstar left the pool for the sauna, she warned Litoria to stay in the shallow end of the pool, only chest-high in the water, or get out of the pool altogether. Ms. Morningstar assumed that all the parents' respective permission slips would have alerted the teachers as to which children could or could not swim, so she did not tell anyone which students could not swim. At various times before 7:30 p.m., Joey James and Ms. Morningstar disciplined students by taking away water toys and calming rowdy behavior. Eric Lee arrived at the pool dressed to swim and able to swim shortly after the children entered the pool, but he stayed on the sidelines at the deep end and would not enter the pool. Respondent arrived at the pool dressed to swim and swam a little while Ms. Morningstar was in the shallow end and Joey James was in the deep end. Makia Hicks got into the pool with Respondent and said "Can you stand in here with me?" Respondent questioned Makia, and determining that Makia indeed could not swim, Respondent told her, "Well, you can come in here and I'll show you how to kick your feet." Respondent did not overhear the similar conversation between Litoria and Ms. Morningstar. (See Finding of Facts 33- 34). Later, Respondent got out of the pool and took Makia and Jessica Hayes to the hot tub. She made sure Makia got out of the pool at that time. Respondent, Makia, and Jessica then returned to the pool and were playing around. Ms. James, dressed to swim, arrived at the pool about the time Ms. Morningstar first went to the sauna. Mesdames Brown and Benton arrived poolside sometime after everyone else and remained there for most of the time until 7:30 p.m., in adjoining chairs and approximately midway between the deep and shallow ends of the pool. During this period, Ms. Benton made several trips to and from the jacuzzi and Ms. Brown made at least one trip to and from her room. Neither woman was dressed to swim. By their own accounts, both women were adequate but not trained swimmers, and neither of them intended to swim. When Ms. James arrived poolside, Respondent got out of the pool and she and Ms. James chatted in adjoining poolside chairs on the side opposite from Mesdames Brown and Benton. Makia sat on the edge of the pool with her feet in the water. Fifteen to 20 minutes after arriving poolside, Ms. Brown overheard that Litoria and one other child (she was not sure which child) could not swim. When Ms. Brown heard this, Litoria was already "walking the wall" (moving via her hands on the lip of the pool wall) into the deep end of the pool. Ms. Brown asked Litoria if she could swim and when Litoria said she could not swim, Ms. Brown ordered Litoria back to the shallow end of the pool. At least twice more before 7:30 p.m., Ms. Brown ordered Litoria back to the shallow end from the deep end, but Ms. Brown did not alert anyone else that Litoria was venturing into the deep end. She also assumed that Litoria's parents had informed the teachers that Litoria could not swim, so she did not tell anyone that information either. At approximately 6:30 p.m., Ms. Benton overheard or otherwise figured out that Litoria could not swim. She also assumed that Ms. James and Respondent knew Litoria could not swim and therefore, she did not mention it to them. After being poolside for awhile, Ms. James and Respondent went to Ms. James's room to telephone for pizza for everyone's dinner. Where, precisely, each of the other adults were during this brief period of time is in some dispute, and it may be that Ms. James and/or Respondent came and went from Ms. James's room more than once. Ms. James and Respondent did not specifically designate any adult to be in charge at the pool in their absence(s). Nonetheless, by all accounts, Mesdames Brown and Benton were fully dressed in poolside chairs most of this time and Joey James, Mr. Lee, and Ms. Morningstar were in and around the pool most of this period of time. Later, when it was anticipated that the pizza delivery man would be arriving, Ms. James and Respondent again left the poolside together. As they walked past Ms. Brown and Ms. Benton, Ms. James said, "We're going for the pizza." Neither Ms. James nor Respondent gave any specific instructions concerning the students. Ms. Brown and Ms. Benton acknowledged that they had heard Ms. James say that both teachers were leaving the pool area. Ms. James and Respondent left the pool area and entered a motel corridor off a door leading to the pool area. The children and pool area could not be adequately observed and monitored from this motel corridor. Joey James and Mr. Lee arrived in the corridor simultaneously with the two teachers. Ms. James gave the men instructions to go to the bus and retrieve a cooler of soft drinks and take the cooler to the picnic area at the far end of the pool. Ms. Morningstar arrived in the corridor in time to hear the foregoing instructions concerning the cooler. This meant there were now five adults not watching the children. Respondent then gave Ms. Morningstar enough specially-printed T-shirts for all members of the party, told her the T-shirts would be distributed during dinner, and asked her to take the T-shirts to the picnic area and set up for dinner. Respondent also asked Ms. Morningstar to "check on the kids."2 Ms. James and Respondent assumed the foregoing instruction meant that a third adult (Morningstar) would then be joining the two adults (Brown and Benton) already poolside to watch over and protect the eight students. Ms. Morningstar immediately went to the pool area, carrying the T-shirts. Ms. James, who had the money to pay the delivery man, and Respondent immediately went up an interior hallway toward the hotel lobby to await the pizza delivery man. The six pizzas Ms. James had ordered would require two people to carry them all, but additionally, Respondent wanted to talk to Ms. James alone because she had a concern and planned to defer to Ms. James's field trip experience as a long-time Safety Patrol sponsor.3 On her way to the picnic area, Ms. Morningstar found all the children, including Litoria, in the deep end of the pool. Most were playing dunking games. Apparently, Litoria sometimes participated in dunking, but when Ms. Morningstar spotted her, Litoria was holding onto the pool wall. She was blowing bubbles in the water between her outstretched arms and occasionally pushing off a few inches, floating on her face, and then grabbing the wall again. Ms. Morningstar said, "Litoria, are you sure you feel comfortable? Because you don't know how to swim." Litoria replied, "No, ma'am, I feel comfortable. I'm here with everybody and everybody's beside me." Ms. Morningstar did not consider Litoria in danger as close to the wall as she was, with children near her in the pool, and with Ms. Brown, Ms. Benton, and other adult strangers nearby. She proceeded to the picnic area, passing Brown and Benton in their chairs, and telling them she was going to set up for pizza. At about this time, a few minutes before 7:30 p.m., Ms. Brown was approached by a little girl who wanted to get her pool shoes from her room. Ms. Brown told the child to get her key and she would go with her so that the child would not be alone in a motel room. As they rounded a corner of the deep end of the pool, Ms. Brown spotted another little girl clinging to the side and sobbing, "She tried to drown me!" Then there was a clamor from the other children and Ms. Brown noticed that Litoria, in her red outfit, was floating face down, only inches from the edge of the pool. Just then, Ms. Benton approached and also saw Litoria. Both women screamed. Ms. Morningstar and Mr. Lee, who were in the picnic area, heard the screams and ran to the deep end of the pool to help. With the help of two of the boys and Eric Lee, Ms. Brown hauled Litoria out of the pool. The adults peeled away from Litoria's face a plastic mask designed to cover the wearer's eyes and nose, but not the mouth. The face mask's breathing tube had been lost. Blood came profusely from Litoria's mouth.4 The teachers were notified where they were waiting for pizza in the motel lobby. They returned immediately to render aid. A qualified bystander rendered CPR. Medical attention was summoned via "911." Although Litoria's pulse and breath sounds were revived at poolside, she ultimately died of drowning Christine Arab, General Director of Human Resources for the School Board, holds Bachelor's and Master's Degrees in Elementary Education, and is a doctoral student in curriculum and education. She has been a certified elementary and exceptional student education classroom teacher. In her opinion, Respondent did not take reasonable efforts to protect her students in that she failed to determine which children could and could not swim and left the pool area without making sure that at least one of the adults was prepared to be in the pool with the children, was able to rescue the children, and had agreed to accept the responsibility to oversee and rescue the children from the water if necessary. It was the absence of these precautions by Respondent that mattered to Ms. Arab, not the length of time that Respondent was absent from poolside. Ms. Arab stated, concerning the other adults' behavior on the field trip that, "[G]iven what they each understood their role to be or commitment to be - I think there's a lot of blame to go around . . .." She also described various acts and omissions of the other adults as either reasonable or unreasonable. However, I do not assign the weight to her personal opinions on these subjects that I do to her professional opinion as an educator concerning Respondent's duty of supervision and effectiveness as a teacher. There is no School Board policy defining the duties of "chaperones." The School Board did not prove that it had any specific written policy against swimming on field trips. Ms. Arab conceded that if Ms. James's prior principal had approved swimming for the previous year's field trip and the current principal, Ms. Davis, had not disapproved swimming in 1999, there was no way the teachers could have divined there was any "no swimming on field trips" policy. Principal Davis was disciplined by a 21-day suspension without pay for her flawed oversight of the field trip. This is a very severe penalty for an administrator. Ms. Arab had input into the School Board's decision to prosecute this case. In her opinion, the severity of a termination recommendation against Respondent was warranted because Respondent's flawed oversight of the field trip itself was such that the public and the School Board could have no future confidence in Respondent. Ms. Arab felt the only way the School Board could trust Respondent henceforth would be under the closest supervision and that would be ineffective teaching in the School system. However, Ms. Arab also conceded that had Litoria not drowned, Respondent's failures would not have risen to the level of a terminable offense.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of a violation of Rule 6B-1.006(3), Florida Administrative Code, through her failure to make reasonable effort to protect students from conditions harmful to their physical safety, and of a violation of Section 231.36(1)(a), Florida Statutes, by misconduct in office, suspending her without pay for six months, and requiring her to repeat her supervised one year of beginning teacher training upon her return to the classroom. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2000.
The Issue Whether Respondent, Yvonne B. Eisenberg (Respondent), committed the violations alleged in the Amended Administrative Complaint filed on September 27, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Manatee County Public School District (School District). As such, it has the authority to regulate all personnel matters for the School District. See § 1001.32, Fla. Stat. (2012). Dr. Timothy McGonegal is the superintendent of the public schools for the School District. Dr. McGonegal has the authority to recommend suspension and/or termination of employees for alleged misconduct. At all times material to the allegations of this case, Yvonne B. Eisenberg was an employee of the School District assigned to teach profoundly mentally handicapped (PMH) students at Southeast High School. At all times material to the allegations of this case, Mr. Hall was an assistant principal at Southeast High School. Mr. Hall’s responsibilities included overseeing the exceptional student education (ESE) program at Southeast High School. Respondent’s PMH class fell within the purview of the ESE program. Ms. Toole, an ESE specialist at Southeast High School who is the ESE department chairperson, directly supervised Respondent’s class. PMH students require constant supervision and care. Respondent was assigned a full-time aide to assist her with the class. At times Respondent was assigned a second aide to help with students. Students in Respondent’s class were limited intellectually and physically. All required assistance with feeding, diaper changes, and mobility. It is undisputed that the challenges of managing Respondent’s classroom were daunting. No one disputes that Respondent’s daily work required physical and emotional strength. Cooperation between Respondent and others assigned to work in her classroom was important in order for the school day to run smoothly. Students in Respondent’s PMH class ranged in age and size. The eldest student could be 22 years old. It is undisputed that a 22-year-old might prove to be a physical burden for mobility and diaper changes. Respondent has received satisfactory performance evaluations in the past. Respondent is effective as an ESE teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted a conference with Respondent to present, in writing, specific expectations for Respondent’s future job performance. Mr. Hall advised Respondent to follow the Code of Ethics and to speak civilly and professionally to staff and co-workers. On June 10, 2011, Mr. Hall gave Respondent a written reprimand for her actions during the 2010-2011 school year. More specifically, Mr. Hall cited Respondent’s failure to correct her unprofessional conduct toward staff and co-workers, and her willful neglect of duties. Among other items not pertinent here, Respondent was directed to complete sensitivity training and to promote a positive atmosphere in her classroom. Respondent denied the underlying facts that gave rise to the reprimand, but admitted to “yelling” at her aide. Speaking disrespectfully and loudly toward others was a chief component of Mr. Hall’s concern regarding Respondent’s behavior. On September 20, 2011, Respondent approached Mr. Hall at approximately 8:00 a.m. and asked to talk to him. Mr. Hall had a busy morning agenda but told Respondent he would talk to her later in the day. Respondent accepted the deferment of the talk and did not suggest an emergency situation that required more immediate attention. Later in the day, at approximately 10:30 a.m., Respondent returned to Mr. Hall’s office and asked for a meeting. In the interim between the first request for a talk and the second request, Respondent had sent Mr. Hall e-mails outlining a need for supplies, a request for input regarding an aide’s condition (whether the aide had been cleared to help lift students), and a need for gloves. Mr. Hall advised Respondent that she was not responsible for buying gloves and soap, and that those types of supplies for her students would be provided by the School District. Respondent claimed that a second aide was not needed in her classroom because she felt the two aides assigned to the PMH class were “against her.” Finally, Respondent asked about the status of any physical restrictions for a specifically named aide, Ms. Mitchell. Mr. Hall assured Respondent that the aide could lift as required by the job and had no restrictions. The meeting ended with Mr. Hall presuming he had addressed Respondent’s concerns. Mr. Hall also mentioned that Mr. Johnson, a substitute teacher at Southeast High School, could be made available to help lift Respondent’s students when needed. At approximately 1:15 p.m. the same day (September 20, 2011), Respondent approached Mr. Hall’s office with her fists clenched, her face red with anger, and yelled, “Am I going to get any help in here today?” Mr. Hall was surprised by the loud yelling and was taken aback for a moment. Since he did not understand her request he asked Respondent for a clarification. After a brief exchange, it became apparent to Mr. Hall that Respondent was upset because her students had not been changed all day and were sitting in dirty diapers. Mr. Hall maintained that Respondent had not clearly asked for assistance in changing the students during the two exchanges they had had during the school day. At that point, Respondent exited Mr. Hall’s office and slammed the door. Mr. Hall then telephoned an ESE classroom near Respondent’s room and directed Mr. Hubbard to report to Respondent’s classroom to assist her with changing the students. As Mr. Hall was completing that call, Respondent reappeared at his office and Mr. Hall asked her to step inside. At that time, Mr. Hall told Respondent she could not communicate with him as she had, that she must remain respectful and professional. Respondent then advised Mr. Hall that she was “pissed off.” Mr. Hall directed Respondent to return to his office at the end of the school day, and that Mr. Hubbard was in her classroom waiting to assist her with the diaper changes. Subsequently, Respondent told Ms. Toole that she yelled at Mr. Hall. Respondent maintains that the frustrations of her job and the events of the day supported her behavior. Moreover, Respondent asserts that her passion for the care of her students led to the emotional outburst. Respondent did not return to Mr. Hall’s office at the end of the school day. Mr. Hall reported the matter to his principal and to the District’s Office of Professional Standards. The Superintendent of schools recommended that Respondent receive a three-day suspension without pay for her conduct toward Mr. Hall and her failure to correct behaviors that had previously been identified. The requirement that Respondent show respect toward co-workers was not a new theme. Had Respondent exhibited patience and a professional demeanor, clearly articulated her need for assistance in lifting her students for diaper changes, and sought help in a timely manner (during any portion of the school day prior to 1:15 p.m.), she could have easily avoided disciplinary action. As soon as Mr. Hall was made aware of her need for lifting assistance, he directed additional help to Respondent’s classroom. Curiously, Respondent did not ask Ms. Toole, her ESE supervisor, for help.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be suspended for three days without pay. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2013. COPIES FURNISHED: Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez and Hearing P.A. 201 North Franklin Street, Suite 1600 Post Office Box 639 Tampa, Florida 33602 Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. David Gayler, Interim Superintendent Manatee County School Board 215 Manatee Avenue West Bradenton, Florida 34205-9069 Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent should be suspended, without pay and benefits, and terminated from employment with Petitioner for the offenses set forth in the Amended Administrative Complaint.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: (a) the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an intern principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time intern principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Finding that Doreen Maynard committed misconduct, immorality, and gross insubordination, violating section 1012.33(4)(c), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(2), (3), and (4); and Suspending Doreen Maynard, without pay and benefits, and terminating her employment. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
