The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2006.
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school monitor as alleged in the Notice of Specific Charges filed January 25, 1995.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by the Petitioner as a security monitor at Hialeah-Miami Lakes Senior High School, one of the public schools in Dade County, Florida. The job duties as a school security monitor require him to patrol the school propery to detect and prevent illegal activity on school premises, to prevent unauthorized persons from coming on campus, and to report to the school administrators any problem or potential problem observed on school grounds. Prior to the incident that resulted in this termination prooceeding, Respondent had been reprimanded for sexually harrassing three female students. Respondent had attended conferences at which he was informed as to how he was expected to conduct himself on the job and how he was to interact with members of the public, students, teachers, and administrators. Following his reprimand, Respondent was individually counseled as to his expected behavior. The incident that resulted in this termination proceeding occurred May 5, 1994, on the school campus while the Respondent was on duty. Also on duty was Jannine Garribian, a substitute teacher that Respondent had been dating. Immediately before the incident described below, Respondent became involved in a loud argument with another male security monitor over whether this other man had had intimate relations with Ms. Garribian. Following this argument with the other security monitor, Respondent went to the drama room where Ms. Garribian was carrying out her assigned duties. In the presence of students, Respondent physically grabbed Ms. Garribian, shook her, and made loud accusations about her and the other security monitor. He attempted to drag her from the room so he could talk to her. She struggled with him. He grabbed her neck and pushed her against the wall. They then left the room for a short period of time. When they returned, Respondent told a student that Ms. Garribian was a slut and a whore. He called her a devil and said that she was a cold, evil person. When Respondent left he took Ms. Garribian's car keys with him. Ms. Garribian and the students who witnessed this incident were very upset. Carroll Williams, an assistant principal at the school, retrieved Ms. Garribian's car keys from Respondent. Respondent was thereafter ressigned to the regional office pending an investigation. Thereafter, upon recommendation of the school principal, the School Board suspended Respondent's employment without pay and intiated these termination proceedings. Respondent testified at the formal hearing that he did not want to be reinstated to his job with the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school security monitor. DONE AND ENTERED this 16th day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1995. COPIES FURNISHED: Gerald A. Williams, Esquire Mack, Williams, Haygood & McLean, P.A. 1450 Northeast Second Avenue Suite 562 Miami, Florida 33132 Mr. Carlos Izquierdo 560 West 79th Street Hialeah, Florida 33014 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
Findings Of Fact Respondent holds Florida teaching certificate number 600100 which certifies Respondent in the area of elementary education. This certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed as a teacher at North County Elementary School (NCES), one of the schools in the Dade County School District. At the time of the formal hearing, respondent was employed as a classroom teacher at Liberty City Elementary, another of the schools in the Dade County School District. Respondent is an experienced school teacher who was, at the times pertinent to this proceeding, assigned to teach a sixth grade alternative education class at NCES. Wanda McMillon is a Paraprofessional I and was assigned to assist in Respondent's classroom on a full-time basis during the 1990-91 school year. There were approximately 15 students assigned to Respondent's class at NCES. Alternate education deals with children who are behavior problems, have attendance problems, or who are recommended by their counselors to attend alternate education for other reasons. Many of these students come from broken families. Students in Respondent's class frequently engaged in inappropriate and unruly behavior. Examples of this misbehavior included students throwing objects, hitting the Respondent, taking the Respondent's property, and running out of the classroom. As the teacher, Respondent is responsible for maintaining discipline in the classroom. The record is clear that discipline was a serious problem in Respondent's classroom. On November 2, 1990, an incident occurred in Respondent's classroom at NCES involving Respondent and Arthur Brown, a student who had been assigned to Respondent's alternative education class because he was a behavioral problem. Arthur was out of his seat without permission. Arthur did not obey the Respondent's instructions to sit down. Respondent thereafter touched Arthur Brown's shoulder in an attempt to get him to take his seat. Arthur pulled away from Respondent and picked up a plastic chair with metal legs. Arthur held this chair above his head and attempted to hit Respondent with the chair. Respondent grabbed the legs of the chair and a brief struggle for the chair ensued. Respondent took the chair away from Arthur Brown. During the struggle for the chair, Arthur was struck in the forehead by the plastic portion of the chair, but he suffered no meaningful injury. Respondent did not use excessive force in dealing with Arthur. Respondent's defensive reaction to this situation was reasonable and necessary to protect himself and possibly others from this student. 1/ On a date during the 1990-91 school year prior to November 2, 1990 2/, an incident occurred in Respondent's classroom involving Respondent and Vincent Bennett, a disruptive student who had been assigned to Respondent's alternative education class. Vincent was playing near the classroom door when Respondent told him to sit down. When Vincent failed to sit down, Respondent seized Vincent's arm and tried to redirect the student. Vincent began to struggle with Respondent and broke free of his grasp. Vincent began to run around Respondent flailing his arms and hitting Respondent. Respondent reacted by striking Vincent in the upper chest with the back of his hand. Vincent fell to the ground and began to cry. Although Vincent became mad as a result of that incident, there was no evidence that Vincent was injured by Respondent. It is concluded that Respondent's reaction to the attack by Vincent was reasonable and that Respondent did not use excessive force in responding to that situation. 3/ There was testimony that Respondent grabbed Vincent and Arthur by the arm on other occasions. There was, however, no showing that Respondent used excessive force in dealing with Vincent or Arthur on these other occasions or that he engaged in unacceptable conduct. There was testimony that Respondent grabbed or pushed other students in the class, including Lasavo Darkins, Marcus Hollis, Elijah Wadley, and Latraveus Dardy. The evidence established that Respondent's contact with these students occurred while the students were misbehaving and was an attempt to redirect the students. The testimony pertaining to these incidents otherwise lacks factual detail and does not establish that excessive force was used by Respondent. This vague testimony is insufficient to base a finding of wrongdoing on the part of Respondent. There was no evidence that Respondent's method of dealing with these students constituted professional misconduct. There was conflicting testimony as to whether Respondent improperly used profanity in front of the students in his classroom. Based on the greater weight of the evidence, it is found that Respondent did not address his students in profane terms and that he did not otherwise improperly use profanity in front of the students in his classroom. On February 20, 1991, Respondent received a written reprimand from Ruthann Marleaux, the principal of NCES, which provided, in part, as follows: You are hereby officially reprimanded for the following violations of your professional contract responsibilities: Failure to: "Maintain a safe and orderly learning environment...that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Respondent received an annual evaluation of "unacceptable" from his principal for the 1990-91 school year. Respondent testified that this evaluation was subsequently changed to acceptable. Although the subsequent evaluation was not introduced into evidence, the testimony of Respondent is accepted since his testimony is consistent with his continued employment as a teacher in the public schools of Dade County, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1992.
Findings Of Fact At all times material hereto Respondent, Edgar Lopez, was a fifteen year old student who was assigned to Henry Filer Middle School during the school year of 1987-88 and to Jose Marti Middle School during the school year 1988-89. When a teacher in the Dade County School System wishes to report or refer a discipline problem in the classroom, the teacher completes and submits to the assistant principal a Student Case Management form, commonly referred to as a SCAM. During the 1987-88 school year, at least nine SCAMs were filed concerning Respondent and addressed disruptive behavior problems of tardiness, disobedience, and failure to cooperate. Respondent, Respondent's parent or both were consulted concerning the nine reports; however the behavior did not improve. Then, in school year 1988-89, Respondent continued to have excessive absences, and the visiting teacher consulted Respondent's mother about Respondent's attendance. On January 31, 1989, Respondent was found with two harmful knives at school and during school hours. Possession of knives is a Group 5 offense of the student code of conduct of the Dade County School Board which is punishable by expulsion. Respondent exhibited disruptive behavior and was consulted about his problems but failed to improve. Further, Respondent committed an offense which warrants expulsion. Accordingly, Respondent's assignment to the opportunity school is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 5th day of July, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989. COPIES FURNISHED: George dePozsgay, Esquire 2950 S.W. 27th Avenue Suite 210 Miami, Florida 33133 Ramonita Gonzalez Lopez, 10,000 Northwest 80th Court Apartment 2127 Hialeah Gardens, Florida 33016 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent, Dianne Tice, began teaching home economics at the Jan Mann Opportunity School North (Jan Mann) in the 1981-82 school year. Jan Mann is a school devoted to students with behavior problems, attendance problems and learning disorders. Student James Woody, thirteen years old, was a continuing discipline problem for teachers at Jan Mann. At the time of his admission to Jan Mann, there were discussions as to whether Woody was the type of student who should be admitted. The staff psychologist at Jan Mann believed that a more appropriate placement would have been a residential facility. Nevertheless, Woody was admitted to Jan Mann. On March 13, 1984, Woody was attending respondent's fifth period home economics class. Due to his loud, profane language and banging on desks and chairs, respondent sent Woody to the Principal's office with a referral slip. Approximately twenty minutes later, Woody returned to the respondent's classroom and again became disruptive. Respondent then requested the security guard or hall monitor to either talk to Woody or again take him to the Principal's office. The hall monitor spoke with Woody, placed him back in the classroom and told respondent to put Woody outside the classroom with him if Woody caused any further trouble. Thereafter, the respondent was in the front of the classroom when another student asked to be assisted with the placement of buttonholes in some pants she was sewing. The respondent picked up a pair of scissors, a seam ripper and some keys and began walking to the rear of the classroom to get other equipment from a cabinet so that she could assist the student. At this point, Woody again became disruptive -- pounding on desks and using loud, profane language. The evidence is very conflicting as to what then transpired. Woody left his desk, and it is not clear whether respondent told him to leave the classroom before then or whether he was attempting to proceed to the rear of the room in order to use the restroom. In any event, Respondent was walking toward or behind Woody with the scissors, seam ripper and keys still in her hands. They both ended up at the rear door of the classroom, which opens and closes by means of a push bar. Woody was on the outside of the door and respondent was on the inside. The evidence is again conflicting as to whether respondent was attempting to hold the door closed so that Woody could not reenter her classroom, or whether she was attempting to open the door to either bring him back in or see where he had gone. Whatever she was attempting to do, Woody was either pulling or pushing in the opposite direction. The hall monitor, sitting some ten to fifteen feet away from the door, observed Woody at the door outside the classroom pulling on the door, and began to go over to the door when Woody released the door and cafe over to him. The monitor observed blood on Woody's hand and took him to the bathroom to wash his hand. He then went back to respondent's classroom and asked respondent how Woody had gotten cut. Respondent then ran into the bathroom to help. What was said in the bathroom is also the subject of conflicting testimony. Woody at first told school personnel that he cut his hand while banging on a desk. Respondent told him not to try and protect her. Whatever was said, respondent does not deny that Woody may have been accidentally cut with the scissors, seam ripper or keys during the scuffle at the rear door of the classroom. After the incident, respondent told several people that she had cut Woody. There is no evidence, however, that respondent intentionally stabbed Woody's hand during the incident. As noted above, respondent was first employed at Jan Mann for the 1981- 82 school year. Her annual evaluation for that year indicates that she was rated acceptable in all categories of the evaluation and was recommended for re- employment by her then Principal, Robert Edwards. During this first year, respondent was also formally observed by the Dade County School Board Supervisor of Home and Family Education. She was found to be acceptable in all categories and all comments were very favorable. During the 1982-83 school year, respondent was formally observed in her classroom on three occasions. In November of 1982, Assistant Principal Altman rated respondent unacceptable in the two categories of "classroom management" and "techniques of instruction," and acceptable in the remaining six categories. She was given an overall summary rating of acceptable. In January of 1983, respondent was again observed by Ms. Altman and received an unacceptable rating in three categories, but an overall summary rating of acceptable. Approximately one week after the January evaluation, respondent and Ms. Altman were involved in an incident which resulted in respondent filing a grievance against Ms. Altman for allegedly pushing her in the presence of her students. Principal Oden investigated the matter and decided that respondent's allegations against Ms. Altman were unfounded. In March of 1983, a Department of Education consultant performed an instructional program review and found respondent to have met all assessment standards. Additionally, it was noted that respondent was "commended for her management and organization of the facility." Respondent's annual evaluation by Principal Oden, dated June 9, 1983, indicates that she was rated acceptable in all categories except for the category entitled "preparation and planning." Principal Oden remarked that respondent "does a good job at teaching, but needs to devote more attention to planning." Respondent was recommended for re-employment by Principal Oden. During the 1983-84 school year, Respondent had two formal classroom observations. Assistant Principal Willie Shatteen observed her classroom on October 6, 1983, and found her performance to be acceptable in all categories. His written comments included the following: "lesson plans are evident," "materials are arranged far in advance," "students orderly and attentive," and "has knowledge of background of each student to provide for individual's need." In a follow-up letter, however, Mr. Shatteen criticized respondent for not following her lesson plans and for her negative attitude toward constructive criticism. Several conferences were held between respondent and her supervisors in October and November, 1983. By letter dated November 17, 1983, Principal Oden expressed several concerns he had relating primarily to respondent's planning, teaching and classroom management skills, and made ten recommendations for improvement. Principal Oden formally observed respondent's classroom on December 8, 1983, and rated her acceptable in all categories except "preparation and planning," but gave her an overall rating of acceptable. His comments in the area of "preparation and planning" included "improvement may be achieved through better planning." A "conference for the record" was held on December 13, 1983, to discuss the recommendations made in the November 17th letter. Also discussed was the possibility that respondent would not be recommended for continued employment at Jan Mann should she fail to make the necessary improvements discussed in the November 17th letter. Another conference was arranged for a time between January 19, 1984, and January 25, 1984. The record is not clear as to whether that conference occurred. Respondent's lesson plans were submitted to and reviewed by her supervisors every week. While the January 4, 1984, review found that the plans were not organized to include certain items and that a conference was needed, the plans for the following five weeks were found to be "accepted" and, in one instance, "plans are excellent. No improvement is needed at this time." Just prior to the March 13, 1984, incident involving student James Woody, Principal Oden decided that he was going to recommend respondent for a continuing contract. He told her this and her name was included on the list submitted to the School Board containing those recommended for a continuing contract. While be felt that there were some modifications needed in her teaching behavior, he also felt that there was room for her to improve with the beginning of a new year. Had it not been for the Woody incident, Principal Oden would have recommended respondent for a continuing contract. Indeed, his decision of "not recommended for employment" contained on the 1983-84 annual evaluation contains the remark "pending S.I.U. ..." -- referring to the investigation of the Woody incident by the School Board's Special Investigative Unit. Had respondent been cleared of the Woody incident, she would have been recommended by Principal Oden for re-employment on a continuing contract basis. His annual evaluation for the 1983-84 school year, signed on March 21, 1984, rates respondent as unacceptable in the two categories of "preparation and planning" and "professional responsibility," and acceptable in the remaining six categories. Apparently in connection with the investigation of the Woody incident, a psychiatric evaluation of respondent was performed by Dr. Gail D. Wainger, a psychiatrist. After spending approximately one hour with the respondent on March 20, 1984 (the same day that respondent was informed that she would not be recommended for employment), Dr. Wainger concluded that respondent appears to be suffering from chronic paranoid schizophrenia, and that she experiences misperceptions and shows evidence of poor judgment. This diagnosis was based, in part, upon the respondent's expressions to the effect that the school administration was against her and was attempting to get rid of her and also her relating to Dr. Wainger incidents which occurred at an apartment complex in which she formerly resided. Dr. Wainger is of the opinion that respondent would be likely to decompensate during stressful situations. On June 20 and 22, 1984, another psychiatric examination of respondent was performed by Dr. Lloyd Richard Miller, a psychiatrist. Dr. Miller spent approximately three hours with the respondent over two different days, performed some psychological testing, and also reviewed Dr. Wainger's psychiatric report. It was his conclusion that respondent did not suffer from a mental illness, and he did "not view her as guarded, suspicious or paranoid in any way. It was Dr. Miller's opinion that respondent has the sufficient mental capacity to return to work as a teacher. An expert in the area of teaching personnel evaluation and personnel management employed with the Dade County School Board, Dr. Desmond Patrick Grey, reviewed respondent's personnel files, including her classroom performance and annual evaluations, the investigative reports of the Woody incident and Dr. Wainger's psychiatric report. Dr. Grey was of the opinion that respondent's performance evaluations indicate a serious problem that would limit her effectiveness as a teacher; that the Woody incident impaired the integrity of the profession and the respondent; and that respondent has an incapacity to perform the expected function of a teacher. Three employees at Jan Mann testified in respondent's behalf. A school psychologist believed that respondent's character and reputation at Jan Mann were outstanding. A graphic arts aide felt that respondent was excellent dealing with the children and was dedicated in her occupation. A workshop instructor felt that respondent had been a "pretty competent teacher."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Amended Specific Notice of Charges against respondent Dianne Tice be DISMISSED, and that she be awarded back salary for the remainder of the contract period following her suspension. Respectfully submitted and entered this 16th day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985. COPIES FURNISHED: Thomas Robertson, Esquire Merritt, Sikes and Craig, P.A. McCormick Building - 3rd floor 111 Southwest Third Street Miami, Fla. 33130 Carl DiBernardo, Esquire Commercial Bank of Kendall 8603 S. Dixie Highway - Suite 210 Miami, Fla. 33143 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Fla. 33132
The Issue Whether the respondent should be reassigned to the Opportunity School.
Findings Of Fact Mr. Aron Brumm, Assistant Principal at Cutler Ridge, handles about 95% of the disciplinary cases at Cutler Ridge. He was personally involved in investigating the incidents involving Charlotte and in the efforts to correct Charlotte's behavior. The following is an outline of Charlotte's disciplinary record at Cutler Ridge: DATE REASON FOR REFERRAL 9/17/84 Charlotte was disruptive in class, rude, and constantly tardy. 9/25/84 Charlotte was found in possession of pens stolen from the school store. She admitted that she had taken them. 10/4/84 Charlotte was rude, insulting, and disrespectful in class. Class disrupted. 10/31/84 Charlotte threatened another student. 11/1/84 Charlotte talked back to her teacher in class and was rude. She was putting on make-up during the class. 12/6/84 Charlotte constantly tardy to class and disruptive when she gets to class. 12/6/84 Charlotte was disruptive on the school bus. 12/19/84 Charlotte was disruptive in reading class. 1/18/85 Charlotte was found in possession of "Request for Student" blank forms that are used by school to get a student out of class. Charlotte forged the later signature of Mrs. King to get out of class and was found out near the band room; the forms were found in her purse. 1/22/85 Charlotte completely disrupted indoor suspension, which she was attending due to the prior incident. She was defiant and disrespectful. 1/23/85 Charlotte disrupted indoor suspension once again, despite warning given to her the day before. 1/25/85 A pre-opportunity school conference was held, at which time it is discovered that Charlotte had forged Mrs. Steele's name on Charlotte's progress reports. Every effort was made by school personnel to help Charlotte correct her disruptive behavior. From the time of the first incident, contact was made with Charlotte's guardian. By October 4, 1984, Charlotte had been referred to the school counselor. She was placed in an academic study group which met once a week for four weeks. She had special counseling sessions with some of her teachers. She received reprimands, indoor suspensions, and outdoor suspensions. All efforts were ineffective. Although Charlotte had some good days and would show improvement for a short period of time after certain counseling sessions, she ultimately would revert to her former behavior. Charlotte was not removed from the classes where she was having the most difficulty. However, none of the evidence indicates that a change in teachers would have brought about a change in Charlotte's behavior. Charlotte's disruptive behavior was not confined to one class or one teacher. Three different teachers had to refer Charlotte to the assistant principal for disciplinary action because of her intolerable behavior in the classroom. Further, Charlotte's disruptive behavior was not limited to the classroom. She was disruptive on the school bus, she threatened a fellow student, she stole pens from the school store, she forged her guardian's name on her progress reports, and she used a forged pass to get out of class. She was disruptive in indoor suspension. This is clearly not a case of a personality conflict between a student and teacher which can be resolved by transferring the student out of the teacher's class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of respondent to the opportunity school program at Youth Opportunity School South. DONE and ENTERED this 21th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1985. COPIES FURNISHED: Dr. Leonard Britton Superintendent of Schools Board Administrative Building Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary & Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida Mitchell A. Horwich, Esq. Education Advocacy Project Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, Florida 33147-4796 Phyllis O. Douglas, Esq. Assistant Board Attorney Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issues to be decided are: Whether Ms. Banfield should be terminated from her employment with the School Board of Palm Beach County effective July 22, 1987, for misconduct in office and gross insubordination based upon an alleged inability to work in a cooperative manner with her peers and supervisors after repeated counseling and warnings were given to her to adjust her attitude. Whether if there is no basis for discharge, the evidence supports some lesser penalty. Whether Ms. Banfield is entitled to back pay if she is not terminated. Whether an award of attorney's fees is appropriate.
Findings Of Fact Ms. Banfield is a non-instructional employee of the School Board of Palm Beach County. She was initially employed at Pahokee Jr.-Sr. High School as an Office Assistant II on an interim basis, effective September 21, 1981. She resigned from that position effected November 13, 1981. Ms. Banfield was re-employed by the School Board at Pahokee Jr.-Sr. High School an a Media Clerk I, effective August 17, 1982. She was transferred to the position of School Office Assistant II, effective August 4, 1983, and has served in that position since that time. Ms. Banfield received formal evaluations of her work performance on February 17, 1984; June 4, 1984; October 1, 1984; January 10, 1985; June 12, 1986; and June 16, 1987. Ms. Banfield received memoranda from two principals at Pahokee Jr.-Sr. High School (Jack Redding and Eugenia Jones) regarding her work performance. She received these on September 17, 1984, January 24, 1986, and August 29, 1987. On May 11, 1987, Ms. Banfield was involved in a discussion with a classroom teacher at Pahokee Jr.-Sr. High School, Kay Ventura. On June 19, 1987, Ms. Banfield received a notice of suspension with pay, recommendation for suspension without pay, and recommendation for termination of employment based upon the charge of misconduct in office and gross insubordination. The School Board of Palm Beach County suspended Ms. Banfield without pay effective July 8, 1987, pending final action on the superintendent's recommendation for termination. The following Findings of Fact are based on evidence adduced at the hearing. As an Office Assistant II, Ms. Banfield has been assigned to work as a receptionist and secretary in the guidance department of the school which is located in a trailer apart from the main school building. Ms. Banfield is employed under an annual contract of employment which had been renewed yearly. The Superintendent of Schools recommended that Ms. Banfield receive an annual contract of employment for the 1987-88 school year. Before the event which is the focus of this dismissal proceeding, Ms. Banfield had received prior notices that her work performance was inadequate due to the "nasty, harsh, abrupt" manner in which she dealt with persons she came in contact with (Petitioner's exhibit 4, dated September 17, 1984). Ms. Banfield was informed that "unless her performance was entirely satisfactory, her continued employment with the District School Board would be in jeopardy." (id.) On October 1, 1984, her employment evaluation contained the comment that I strongly recommend that you seek to improve the tone quality of your voice, however, improvement is noted. Further improvement is needed. (Plaintiff's exhibit 5) Ms. Banfield was recognized as "a very hard worker," however, (id.) in spite of these criticisms, Ms. Banfield's contract was renewed. By January 1985, the employment evaluation noted that the tone quality of her voice had improved tremendously (Petitioner's exhibit 7). By January 1986, however, the new principal of Pahokee Jr.-Sr. High School, Eugenia Jones, wrote Ms. Banfield about the unpleasant attitude and negative tone of voice Ms. Banfield used in the guidance office and on the telephone. Ms. Jones made it clear that such behavior to parents and visitors to the guidance office was unacceptable. (Petitioner's exhibit 8). The June 1986 employment evaluation of Ms. Banfield pointed out that when informed of deficiencies, Ms. Banfield was pleasant but soon reverted back to the same negative behaviors. It was also noted that Ms. Banfield displayed a negative attitude when given additional assignments, and needed to improve her tone of voice. She was also recognized for knowing her job and keeping accurate records. (Petitioner's exhibit 9). Near the opening of the 1986-1987 school year, Ms. Banfield was given a written reprimand by the school principal as the result of an incident which involved the assistant principal, Mr. Thompson. A parent with a child was at the school office trying to find out where to register. The school secretary asked Ms. Banfield where registration was taking place and Ms. Banfield responded, "In our [the guidance) office" and walked away. The assistant principal saw this, and called Ms. Banfield back to escort the parent to the guidance office. After she had been called the first time she did not respond, so the assistant principal called her again. She told the assistant principal in an arrogant voice, "I said in my office, good God." The assistant principal then told her that he only had called her back to escort the parent to the guidance office. Ms. Banfield replied, "Then send her on." Ms. Banfield later was informed by the assistant principal that a display of an attitude problem in front of parents would not be tolerated, and he made a memorandum of the incident which he sent to Ms. Jones, the principal. (Petitioner's exhibit 10). This resulted in a follow-up reprimand from Ms. Jones to Ms. Banfield pointing out that Ms. Banfield's working relationships, unpleasant attitude, and telephone manners had been discussed with her on numerous occasions and that it was expected that Ms. Banfield would provide a warm welcome to all parents and others visiting the school. (Petitioner's exhibits 11). She was also informed that further incidents would result in proceedings to terminate her employment. Ms. Banfield acknowledges she had received warnings from both her former principal (Mr. Redding) and current principal (Ms. Jones) about her attitude. A classroom teacher assigned to teach educable mentally handicapped students entered the guidance office to leave a note for one of the guidance counselors, Joy Gates, on May 11, 1987. At that time, Ms. Banfield's immediate supervisor, Gwendolyn Johnson, the guidance coordinator for the school, was in her own office which is in the trailer where Ms. Banfield serves as secretary and receptionist. Ms. Johnson was meeting with a classroom teacher, Kent Heitman. The door to Ms. Johnson's office was open. Also present in the office suite was a student assistant, Teresa Young. Ms. Ventura asked Ms. Banfield whether Ms. Banfield had an envelope or piece or paper in which she could cover the note she wished to leave for Ms. Gates. The note had to do with a student and Ms. Ventura wished to enclose it to keep the matter confidential. Ms. Banfield told Ms. Ventura she did not have an envelope or any paper to give her. Ms. Banfield was standing at the copy machine at the time. She was responsible for the operation of the copier. Ms. Ventura approached the copy machine and removed a piece of paper from the tray which was not being used at that moment by Ms. Banfield for copying to enclose the note. Ms. Banfield became very angry with Ms. Ventura and began shouting at her. Ms. Johnson and Mr. Heitman heard the shouting and came out of Ms. Johnson's office. Ms. Ventura then went into Ms. Gates' office and stated that she was not going to put up with Ms. Banfield's conduct. Ms. Ventura closed the door to Ms. Gates' office and respondent continued to shout at Ms. Ventura through that closed door. Ms. Ventura had closed herself in Ms. Gates' office because she was afraid of the respondent. Ms. Gates then entered the trailer and found Ms. Ventura in her office. While Ms. Gates discussed the incident with Ms. Ventura, they could hear Ms. Banfield outside the door talking loudly about what Ms. Banfield was going to do as a result of the incident. It is not clear, however, that there was anyone to whom Ms. Banfield was speaking. Ms. Banfield was obviously extremely upset by Ms. Ventura's self-help in obtaining a piece of paper from the copy machine at which Ms. Banfield had been standing, but which Ms. Banfield had not been using at the time. Ms. Ventura removed the sheet of paper from the feed mechanism. Ms. Banfield's expression of anger to Ms. Ventura, and her continued tirade after Ms. Gates returned to the office and was discussing the matter with Ms. Ventura in Ms. Gates' office, was wholly out of proportion to whatever offense Ms. Banfield believed she had suffered from Ms. Ventura. Ms. Banfield reported the incident to the principal, Eugenia Jones, at the suggestion of Gwen Johnson. When Ms. Banfield discussed the incident with Ms. Jones, she was still speaking loudly, shaking, and enraged. Ms. Jones thereafter requested that the assistant superintendent for personnel relations investigate the matter and recommended that disciplinary action be taken against Ms. Banfield. After the incident with Ms. Ventura, Ms. Gates discussed with Ms. Banfield concerns about Ms. Banfield's behavior. For example, on one occasion Ms. Gates was looking for a form usually kept on a file next to Ms. Banfield's desk. While standing along side Ms. Banfield's desk looking for the form, Ms. Banfield asked Ms. Gates what her problem was and made it clear that she did not want Ms. Gates looking for forms on Ms. Banfield's desk. The forms Ms. Gates was looking for are ones which Ms. Gates uses in the performance of her duties. Ms. Gates had also been told by school personnel that they did not like to come to the guidance office because of Ms. Banfield's behavior. On June 16, 1987, Ms. Jones gave Ms. Banfield a written performance evaluation which found that her conduct was unsatisfactory in dealing with fellow staff members, and on June 19, 1987, informed Ms. Banfield that charges of misconduct in office and gross insubordination were being brought due to Ms. Banfield's deficient record of performance in dealing with others. Ms. Banfield was suspended without pay from her position effective July 8, 1987, and this proceeding ensued.
Recommendation It is recommended that a final order be entered terminating the employment of Ms. Banfield as an annual contract employee with the School Board of Palm Beach County for misconduct and gross insubordination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1060 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2964 The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 129.59(2), Florida Statutes (1985). Rulings on Petitioner's proposed findings of fact are as follows: Covered in Conclusions of Law. Covered in finding of fact 1. Covered in finding of fact 2. Generally covered in finding of fact 3, otherwise rejected as cumulative. Covered in finding of fact 3, otherwise rejected as cumulative. Generally covered in finding of fact 3. Rejected as unnecessary. Covered in finding of fact 4. Covered in finding of fact 4. Generally covered in the final sentence of finding of fact 11. Covered in finding of fact 6. 12-15. Covered in finding of fact 5. 16-18. Covered in finding of fact 7. 19-20. Covered in finding of fact 8. 21-22. Covered in finding of fact 9 and 10. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. 26-29. Rejected as argument rather than a finding of fact. The Hearing Officer agrees that Ms. Young's version of the incident is not the more credible, and has accepted the version explained in the testimony of Gwendolyn Johnson, Kent Heitman, Joy Gates, and Kay Ventura. Rulings on Respondent's proposed finding of fact. Covered in finding of fact 5. Rejected as unnecessary and irrelevant. Covered in finding of fact 5. Covered in finding of fact 5. Rejected because of the incident recounted by Assistant Principal Thompson did occur as explained by Mr. Thompson in his testimony and his contemporaneous memoranda, and does constitute a behavior problem of Ms. Banfield. Covered in finding of fact 5. Covered in finding of fact 5. Rejected, the version of the event which is accepted is found in finding of fact 5. Covered in finding of fact 7. Covered in finding of fact 7. Rejected because whether Ms. Ventura may be aloof or unfriendly has nothing to do with the extreme reaction of Ms. Banfield, and aloofness would be an inadequate provocation for the reaction exhibited by Ms. Banfield. Rejected as unnecessary. Covered in finding of fact 7. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 7. 17-18. Rejected because the Hearing Officer finds that at the time Ms. Ventura removed the paper from the feed tray of the copy machine, Ms. Banfield was not operating the copy machine. Generally covered in findings of fact 7. Covered in finding of fact 7 but I do not find that Ms. Ventura slammed the door to Ms. Gates' office. Rejected because the Hearing Officer does not find that Ms. Ventura emerged from Ms. Gates' office and yelled at Ms. Banfield. Rejected because the Hearing Officer cannot accept the version of the incident portrayed in the testimony of Ms. Young. Without ascribing any motivation to Ms. Young, the Hearing Officer find that the more credible testimony was given by other witnesses. Generally covered in finding of fact 10. Covered in finding of fact 10. Covered in finding of fact 2. Covered in the prehearing stipulation. Covered in finding of fact 3. That Ms. Banfield was recognized for performing her job functions is covered in findings of fact 3 and 4. COPIES FURNISHED: Abbey G. Hairston, Esquire Palm Beach County School Board Post Office Box 24690 West Palm Beach, Florida 33416-4690 Mark A. Cullen, Esquire 1030 Lake Avenue Lake Worth, Florida 33460 Thomas J. Mills Superintendent of Schools Post Office Box 24690 West Palm Beach, Florida 33416-4690
