The Issue The issue to be determined is whether Respondent has violated section 1012.795(1)(c) and (j), Florida Statutes (2007), and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact Respondent is a teacher licensed by the State of Florida, and has been issued Florida Educator's Certificate 400054. Her certification covers the areas of history, physical education, social science, and middle grades, and is valid through June 30, 2014. Respondent was employed by the DCSD since 1981, and taught at several different schools during her employment. During the 2007-2008 school year, she was employed as a geography teacher at Jefferson Davis Middle School (Jefferson Davis). During the 2008-2009 school year, she taught geography at Southside Middle School (Southside). The allegations in this proceeding concern Respondent's behavior during and professional evaluations with respect to the 2007-2008 and 2008-2009 school years. During this period, the DCSD used the Teacher Assessment System (TAS) as the authorized method of evaluating teacher performance. The TAS measures teaching performance based on nine identified "competencies," which are as follows: Promotes student growth and performance; Evaluates instructional needs of students; Plans and delivers effective instruction; Shows knowledge of subject matter; Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; Shows sensitivity to student needs by maintaining a positive school environment; Communicates with parents; Pursues professional growth; and Demonstrates professional behaviors. A teacher's evaluation was based upon two formal classroom observations performed by a school administrator, which was usually the principal or an assistant principal. The teacher was afforded a pre-observation conference at which time the date for the observation was selected and the lesson plan to be taught during the observation was discussed. After the observation, there was a post-observation conference where the administrator's observations, which were recorded on a Teacher Assessment Instrument (TAI) were discussed. In addition to the formal evaluations, administrators also could use informal, unannounced observations of teachers in forming their opinions regarding performance. In the final evaluation conference with a teacher, a form entitled Evaluation of Professional Growth of a Teacher was used to document the instructor's final rating in each competency area and to record the teacher's overall performance rating for the school year. If a teacher demonstrated deficient performance in one or more competency areas, a "success plan" was developed for the teacher in an effort to assist the teacher in improving performance. The elements of the success plan were developed by a success team, typically composed of the teacher, school administrators, teachers with expertise in the relevant subject matter area, and resource teachers or "coaches." These elements, which were developed with input by the teacher being assisted, identified weaknesses by competency category, set out objectives to address these weaknesses, and provided timelines to meet the identified objectives. Addison Davis was the principal at Jefferson Davis from December 2005 through August 2009. He was the principal responsible for evaluating Respondent's performance during the 2007-2008 school year. On August 28, 2007, Mr. Davis conducted an informal "walk through" of Ms. Bowman's classroom. He observed that although the students had been instructed to read, 16 out of 23 of them did not have a book and were doing nothing. Ms. Bowman did nothing to provide these students with a book, and after 21, 31, and 37 minutes of class time respectively, Mr. Davis noted that no instruction had yet taken place. During the "mini- lesson," Ms. Bowman was asking questions and the students were yelling out unison responses, a practice which is not considered an effective teaching method. Mr. Davis's notes regarding the walk-through observation included the following observations: Instructor informed that "the quieter the class, the more hall passes were given out." Instructor asked questions and students were talking about unrelated topics . . . No evidence of learning taking place. No daily objectives were extended. Essential questions and vocabulary were not extended. Standards were not introduced. I asked the instructor for a lesson plan and one was not provide. [sic] Instructor said, "I don't have one." Student called Mrs. Bowman Ms. Bowwow. I had to address the class about gross respect. Mr. Davis observed no implementation of best practices and saw significant classroom management problems. Mr. Davis conducted a formal observation of Ms. Bowman on September 20, 2007, for which appropriate prior notice had been provided. The TAI completed for this observation indicated that all competencies were satisfactory with the exception of one area: plans and delivers effective instruction. Mr. Davis met with Ms. Bowman on September 26, 2007, to go over her TAI. He also spoke to her about calling him a dictator in the teacher's lounge at some point before the meeting. During this conversation, Mr. Davis spoke to Ms. Bowman about developing a success plan for her. Although Ms. Bowman signed her TAI, she informed Mr. Davis that she felt she was being targeted. A success plan meeting was scheduled for Wednesday, October 24, 3007. On October 22, 2007, Mr. Davis went to the cafeteria to remind Ms. Bowman, out of the hearing of students, of the meeting scheduled for later that week. Ms. Bowman stated that she did not have adequate time to arrange for a union representative, and while the two left the cafeteria, continued to express her feeling that she was being targeted. By the time Ms. Bowman and Mr. Davis reached the front office, she was yelling at Mr. Davis in the presence of students and staff, and accusing him of harassing her. When Mr. Davis advised her that she was acting unprofessionally, Ms. Bowman called him a liar. Approximately 30 minutes later, Mr. Davis called Ms. Bowman to his office to counsel her regarding her professional responsibilities. Ms. Bowman continued to claim she was being harassed, and Mr. Davis told her they needed to move forward. In response, Ms. Bowman told Mr. Davis she was not going to "kiss his ass" and walked out, still yelling at him. As a result of these incidents, Ms. Bowman received a written reprimand on October 23, 2007, considered step two discipline for the DCSD. Step one discipline had been imposed for a prior incident during the 2007-2008 school year. Ms. Bowman did not attend the success plan meeting scheduled for October 24, 2007. Despite her refusal to participate, Respondent was placed on a success plan which was implemented on or about November 3, 2007. Ms. Bowman made it clear that she would not participate in completing the success plan, despite repeated encouragement to do so. She refused to attend meetings and completed none of the identified objectives. A revised success plan dated January 18, 2011, was prepared, which reflected that none of the strategies were completed. Ms. Bowman refused to sign the revised success plan and continued to claim that she was being targeted. On December 10, 2007, Mr. Davis conducted an observation of Ms. Bowman, for which she had received notice November 27, 2007. As a result of this observation, Mr. Davis found that Ms. Bowman did not meet the competencies for promotes student growth and performance; plans and delivers effective instruction; and shows knowledge of subject matter. Mr. Davis was especially concerned that during his observation, two students were sleeping, and a third was wearing a hood on her head, which is prohibited. In addition, a significant portion of class time was focused on Sojourner Truth and the role she played in America's history. Teaching about Sojourner Truth, while relevant to geography in terms of cultural change, did not align with the pacing guide for teaching middle school geography at that point in the semester. On January 18, 2008, Ms. Bowman met with Mr. Davis regarding her December 10, 2007, observation, which they had discussed previously on January 2, 2008. A success team meeting was scheduled to occur after Ms. Bowman's meeting with Mr. Davis. During this initial meeting, Mr. Davis provided to Ms. Bowman a Notice of Potential Unsatisfactory Evaluation. Ms. Bowman became very upset during the meeting with Mr. Davis. She started yelling and could be heard by those staff members in the office area, calling Mr. Davis a liar and insisting that he was targeting her. Ms. Bowman refused to participate in the success plan meeting, continuing to insist that she was being targeted and harassed. Shortly after the meeting, Ms. Bowman returned to the office to say that she was leaving because she did not feel well. She called Mr. Davis a "son of a bitch" and said that "If I go down, then I am taking him with me." As a result of her behavior on January 18, 2008, on February 4, 2008, Ms. Bowman received another written reprimand as step three of the progressive discipline plan employed by the DCSD, and the Office of Professional Standards was notified. Ms. Bowman refused to sign the letter of reprimand.1/ An additional formal observation was conducted on January 30, 2008, by Tiffany Torrence, an assistant principal at Jefferson Davis. The TAI prepared for the observation indicated that competencies were not demonstrated for the following areas: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; and demonstrates professional behaviors. On March 3, 2008, Ms. Bowman received an unsatisfactory evaluation for the 2007-2008 school year. The evaluation reflected unsatisfactory ratings for the competencies of promoting student growth and performance; planning and delivering effective instruction; and demonstrating professional behaviors. She received a "needs improvement" for the competency of evaluating instructional needs of students. On May 7, 2008, John Williams, Director of Professional Standards for the DCSD, notified Ms. Bowman that, consistent with DCSD policy, in light of her unsatisfactory evaluation she had the right to elect to stay at Jefferson Davis or be reassigned to another school for the following school year. Failure to make an election by May 16, 2008, on the form provided would result in the automatic transfer to another school. Ms. Bowman did not submit the form and was transferred, consistent with DCSD policy, to Southside Middle School for the 2008-2009 school year. The principal for Southside during the 2008-2009 school year was LaTanya McNeal. In light of Ms. Bowman's unsatisfactory evaluation the previous year, and her own preliminary observations of Ms. Bowman, she initiated a professional development plan for Ms. Bowman on August 28, 2008. The plan identified four areas of focus: 1) to effectively create and maintain a standards-based bulletin board; 2) to effectively create and maintain a standards-based classroom environment; 3) to consistently develop plans based on student data; and 4) to effectively maintain student portfolios with work that meets the outlined standards according to the department checklist. The plan also provided certain goals and timelines for completing these goals, including the continued maintenance of daily lesson plans that reflect the workshop model. Ms. Bowman refused to sign the professional development plan. Ms. Bowman was informally observed on September 5, 2008, and September 24, 2008, with notice provided prior to the observations. Neither observation could be characterized as successful. The Teacher Observation Follow-up Form completed on September 25, 2008, included the following: -Teacher must have daily lesson plans and workshop model for social studies on her board. -Must have daily writing prompts -Portfolios (student) must be maintained consistently. -Per teacher has a problem with the support (amount) that is provided [Instructional coach, Department chair, Professional Development Facilitator and administrator]. On October 22, 2008, Ms. McNeal conducted a formal observation of Ms. Bowman, for which notice was provided. The TAI prepared as a result of the observation indicated in part that there was no evidence of student portfolios and that the students' folders were empty. There was no evidence of differentiated instruction or use of data to guide instruction; portfolios showed no evidence of work artifacts. The form also indicated that one student was sleeping, and Ms. Bowman yelled at him to wake up once someone came to retrieve him from class. In addition, the class was in disarray with Ms. Bowman engaging in shouting matches with the students. It was noted that Ms. Bowman had not initiated any parent/teacher conferences for academic or behavioral reasons. The TAI indicated deficiencies in the following competencies: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; shows sensitivity to student needs by maintaining positive school environment; communicates with parents; and demonstrates professional behaviors. Ms. Bowman did not accept the TAI, and wrote on it that "principal did not tell the truth and was unfair and misleading." On October 28, 2008, Ms. Bowman was provided a Notice of Potential Unsatisfactory Evaluation, with competencies A, B, C, E, F, G and I listed as needing improvement. The Notice notified her that a success plan would be developed with her input and collaboration, with a conference to be held on November 3, 2008. Ms. Bowman refused to sign the Notice. On November 3, 2008, the success team met with Ms. Bowman in attendance, and a success plan was developed. The success plan included the concerns outlined in the professional development plan and focused on data-driven instruction, use of student portfolios, assessment of student needs, measurement and explanation of student progress, and use of the CHAMPS program, which is a classroom management program used throughout DCSD. Consistent with DCSD policy, a success team was created that included Principal McNeal, other administrators, Ms. Bowman, a reading coach, and an instructional coach. In contrast to the experience at Jefferson Davis, Ms. Bowman at least attended the success plan meetings. Consistent with the objectives outlined in the success plan, Ms. Bowman was provided training and technical support for Compass Odyssey and FCAT Explorer, which are computer programs used to assess student needs and to track student progress. However, Ms. Bowman did not use the programs in her teaching and rejected the concept of individualized instruction based on student needs. She did not implement a portfolio system and declined to observe another teacher conducting a parent-teacher conference. As of January 30, 2009, Ms. Bowman had not submitted a five-day lesson plan, which is required of all teachers, despite that fact that the school year was over half-way completed. While Ms. Bowman claimed that she knew how to conduct parent-teacher conferences, Ms. McNeal had received numerous calls from parents upset about the grades received in Ms. Bowman's classes, and the lack of contact with Ms. Bowman. Ms. Bowman continued to complain that she was being singled out and that the success plan was merely a pretext to justify her termination. Although the success plan was deemed "completed" on February 25, 2009, Ms. Bowman did not incorporate the concepts identified in the success plan into her classroom instruction. To the contrary, it appears that Ms. Bowman's instructional methods did not change at all. Ms. McNeal conducted another formal observation of Ms. Bowman on March 11, 2009, in the afternoon. FCAT testing had taken place earlier in the day and Ms. Bowman thought it unfair to be observed on that day. However, she designated the date for observation during her pre-observation conference on March 6, 2011. The TAI indicates that competencies were not satisfactory for the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management techniques; shows sensitivity to student needs by maintaining positive school environment; and communicates with parents. Ms. McNeal noted on the TAI that a recent grade printout showed high levels of D's and F's for Ms. Bowman's students. For example, the printout dated March 5, 2009, indicated that out of 16 students in her first period class, five students had F's and two had D's. Of the 24 students in her second period class, 13 were failing and two had D's. Ms. Bowman was offered significant assistance to improve her performance. Ms. Bowman attended training opportunities on 14 school days where substitutes were arranged to handle her teaching duties. She was also offered the assistance of instructional and reading coaches, which she consistently rejected. On March 13, 2009, Ms. McNeal issued an Evaluation of Professional Growth of Teacher for Ms. Bowman. The overall evaluation resulted in an unsatisfactory rating, with unsatisfactory ratings in the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management; shows sensitivity to students by maintaining positive school environment; and communicates with parents. Ms. Bowman was rated as needing improvement in the areas of planning and delivering effective instruction and demonstrating professional behaviors. Ms. Bowman signed the evaluation but indicated that she did not accept it, noting that her observation was conducted on a day of FCAT testing. Ms. Bowman attacked the credibility of the principals at both Jefferson Davis and Southside, stating that they were targeting her and retaliating against her. However, no credible evidence was presented to show any basis for Mr. Davis or Ms. McNeal to retaliate against her. Moreover, as noted in the Recommended Order in Duval County School Board v. Bowman, Case No. 09-3004 (Fla. DOAH Jan. 12, 2010; DCSD Mar. 15, 2010), Respondent's work history indicates a pattern of blaming others for poor evaluations. On May 5, 2009, Respondent was notified by the Superintendant of Schools for DCSD, that based upon her two successive unsatisfactory evaluations, he was recommending that her employment be terminated. Ms. Bowman requested a hearing pursuant to chapter 120, and the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge. After completion of a hearing, on January 12, 2010, a Recommended Order was issued recommending termination of Ms. Bowman's employment in Duval County School Board v. Bowman, Case No. 09-3004. A Final Order adopting the Recommended Order and terminating Ms. Bowman's employment was entered by the Duval County School Board on March 12, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent has violated the section 1012.795(1)(c) and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), and revoking her educator's certificate. DONE AND ENTERED this 19th day of January, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2012.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue The issues in this case are whether Respondent, Peggy Addison ("Addison"), failed to correct certain performance deficiencies identified by Petitioner, Collier County School Board (the "School Board"); and whether such failure constitutes just cause for terminating Addison's professional service contract.
Findings Of Fact The School Board is the governing body of the Collier County Public School system. The School Board is responsible for hiring, monitoring, supervising and firing all employees of the school system, including all teachers. Addison has been a school teacher since her graduation from college in 1969, with the exception of a few years taken off to raise her family. She has been a teacher within the Collier County School System for 25 years. For 15 years, and for all times relevant to this matter, Addison was a teacher at the School. Addison taught various grades at the School, but primarily first and second grades. She taught first grade at the School for two years prior to the 2009-2010 school year. During the summer of 2008, the School was assigned a new principal, Nicole Stocking. The assignment was Stocking's first as the principal of a school. Previously, Stocking had experience as a school teacher and as an assistant principal. At the time of her appointment, the School had not been making progress for a number of years and was admittedly a "problem" school, meeting only about 60 percent of its goals. In education parlance, the school was not meeting its Annual Yearly Progress (AYP) goals. Stocking was directed by the superintendent of schools to take all measures necessary to make improvements at the School. Stocking immediately took aggressive actions to ensure improvement at the School. She let all staff and administrators know that there would be a concerted focus placed on reading programs. She advised all teachers that she expected drastic improvements at the School and expected each teacher to work hard toward that end. Stocking established a leadership team made up of her, Vice-Principal Edwards, Reading Coach Bryant, and Reading Coach/Learning Team Coordinator Campbell. The leadership team would conduct weekly walk-throughs of all classrooms and then meet to discuss any problems they had identified. The intent of the walk-throughs was to identify all problem areas needing attention in order to meet the AYP goals for that school year.1 Stocking was described as "all business" and "not a people person" by her subordinates. It is obvious that Stocking took a fairly hard-line approach to her supervisory responsibilities. At one point, ten classroom teachers filed a group grievance against Stocking due to the harshness of her management style. The grievance was deemed unfounded, but the fact that it was filed is some indication of how teachers perceived their new principal. Some of the teachers who joined in the grievance testified at final hearing, and it is clear there was a broad view of Stocking as a difficult person to work for. That is not to say that Stocking did anything improper, only that her actions could be perceived more harshly by some than by others. The 2008-2009 school year started with some significant changes. For example: A new literacy program (MacMillan) with a text called "Treasures" was implemented district-wide; focus was placed on "Guided Reading"--a process whereby students were divided into small groups where their reading skills and progress could be monitored closely; and teachers were told to expect "walk-throughs" by the principal and other administrators. It was clear that the new administration would be pressing everyone to make vast improvements at the School. Improvement in student reading was expected to be the catalyst for overall school improvements for the 2008-2009 school year. Specifically, the School was going to be focused on the Guided Reading process. Teachers would divide students into groups according to their needs, and then meet with each of the groups independently while other students busied themselves with other tasks. During the groups, the teacher would evaluate one student individually by doing a "running record," that is, a short checklist to see how many words the student read correctly from an assigned text. By doing running records for one student in each group and four groups per day, the teacher could assess every child every week. The running records could then be used to help prepare lesson plans for the upcoming weeks. The evidence at final hearing was somewhat contradictory as to how long it took to do a running record, but the consensus seemed to be that it takes about two to three minutes per student.2 During the 2008-2009 school year, Addison was a first-grade teacher. Addison had taught other grades during her career, but preferred and enjoyed first and second grades the most. She had developed a feel for first-grade curriculum and felt most comfortable in that setting. The first-grade team that year consisted of Arcand, the team leader; Laing; Chamness; Tyler; and Addison. Each of the first-grade classes had a mix of students, including some English language learners ("ELL"), i.e., those for whom English was a second language, and exceptional student education ("ESE") students, those with learning difficulties. Addison's class had some ELL and ESE students, but the overall makeup was not significantly different from the other first-grade classes. Almost immediately upon commencement of the 2008-2009 school year, Stocking began to perceive shortcomings in Addison's teaching skills. Some of the perceptions were based on Stocking's personal observation of Addison's classroom; some were based on reports from her leadership team. Stocking was concerned that Addison's students were not sufficiently engaged in some classroom activities. She felt that Addison was not appropriately implementing the Guided Reading program, and she had some concerns about safety issues for Addison's children. Stocking began to correspond with the first-grade team leader (Arcand) concerning Addison's teaching abilities. Arcand provided Stocking with somewhat negative information gleaned from her own observation of Addison. At the same time, first-grade team members Laing and Creighton expressed positive feelings about Addison's abilities. Stocking developed the following specific concerns about Addison's teaching skills: Classroom management--All of the children were not actively engaged in the classroom work at times; some children seemed not to know what their assignment was about. Group reading--Not all children were reading at their appropriate level, i.e., Addison had rated them at too high or low a level. One child appeared to Stocking to be struggling despite assurance from Addison that the child could read well. Some children were not being properly supervised or monitored during the transition from lunch back to the classroom. Addison had some difficulties with the new MacMillan reading program, but she continued to employ it as directed. Some of her peers attempted to guide Addison and provide instruction, but Addison continued to struggle. To her credit, as expressed by Stocking, Addison sought help from her co-workers to master the program. Despite Addison's best efforts, Stocking did not feel that Addison's students were being properly rated and assessed by way of running records. Addison, on the other hand, felt comfortable with her teaching. There were instances where Addison appeared not to be properly monitoring her students on their way from the lunch room back to the classroom. However, the first graders all transitioned from lunch to class at about the same time, and all first-grade teachers were involved in the transfer process. While it may be true that another teacher saw one of Addison's students misbehaving or going somewhere they were not supposed to go during this time, that fact does not necessarily indicate a failing on Addison's part. She may have been helping or guiding another teacher's student at the same time. There is no evidence, however, that Addison ignored her responsibilities, vis-à-vis, her students. As for students not being fully engaged during instruction, that determination cannot be made upon the evidence presented. While there were apparently children not actively engaged in the lesson being presented while Stocking or someone observed the classroom, Addison admits that first graders are not always on task. She provided several reasons that some of the children might have been unfocused on any given day. The fact that some child may have been disengaged on a particular day is not sufficient to make a finding that such behavior was rampant or a problem. During the second half of the 2008-2009 school year, Addison received numerous written disciplinary-type reports from Stocking, including: an "Observation" memorandum dated January 21, 2009, wherein Assistant Principal Edwards criticized Addison's teaching; a "Conference Summary" memorandum dated January 26, 2009, concerning Addison's interaction with a student who was out of control; a memorandum dated January 28, 2009, moving Addison to "Developing" status in five Educator Accomplished Practices (EAPs); a Warning of Unsatisfactory Performance memorandum dated February 5, 2009, in which Stocking chastised Addison for turning in lesson plans a day later than they were due; a memorandum warning about being placed on Developing status dated March 5, 2009; a letter of reprimand dated March 12, 2009, relating to Addison being absent without proper notification; another letter of reprimand one week later saying Addison failed to turn in lesson plans after an illness; another letter of reprimand dated April 3, 2009, addressing Addison's Guided Reading groups; a memorandum concerning an adverse classroom incident dated April 16, 2009; a letter of reprimand dated May 1, 2009, regarding gifts of water pistols Addison had given to two students at the end of the year; and a letter of discipline, with a one-day suspension, dated May 6, 2009. Addison had never received a letter of discipline prior to the 2008-2009 school year, but in that year she received them almost weekly during the second part of the school year. At the end of the 2008-2009 school year, Addison received an annual evaluation in accordance with School Board policies. The evaluation addressed the 12 areas of performance which form the basis of each teacher's assessment. Addison was placed in the "Developing" category for four of those areas. The Developing category indicates that the teacher has not sufficiently mastered the performance required in that particular area of teaching. By School Board policy, a teacher placed in the Developing category for three or more areas of performance is automatically placed on Strand III status. Addison was placed on Strand III commencing with the start of the 2009-2010 school year.3 Strand III is a probationary category under the School Board's Collier Teacher Assessment System ("CTAS") and is applicable to teachers with a Professional Service Contract. Strand III is covered under Article 5 of the Collective Bargaining Agreement between the School Board and Collier County Education Association. A teacher placed on Strand III has 90 days to demonstrate improvement in the Developing areas of performance in order to return to Strand II. Prior to being placed on Strand III for the 2009-2010 school year, Addison had never been placed on Strand III before. Her past five annual evaluations were as follows: 2007-2008--All twelve areas were at Professional. The evaluation was done by Ms. Grieco, whose position was not disclosed in the evidence. 2006-2007--Eleven areas were at Professional; one was at Developing. The evaluation was done by Ms. Psenicka, an assistant principal. 2005-2006--Ten areas were at Professional; two were at Developing. The evaluation was done by Assistant Principal Manley. 2004-2005--Seven of 12 areas were deemed Professional; five were deemed Accomplished. Principal Ferguson did the evaluation. 2003-2004--Seven of 12 areas were deemed Professional (the highest level of proficiency); five were deemed Accomplished (meaning that the teacher was not deficient in that area). The evaluation was done by Principal Ferguson. The Strand III process is quite involved. It requires the creation of a team of individuals whose purpose is to help guide the teacher toward improvement in the deficient areas. Stocking actually put three teachers on Strand III at the same time that Addison was designated, although she had never placed a teacher on Strand III before and was not experienced in administering the program. Knowing that the process was very time-consuming, Stocking decided to transfer the other two teachers to other schools, rather than try to run three Strand III processes at once. Each of the other teachers was removed from Strand III once they reached their new schools. Neither of those teachers had received as many disciplinary notices from Stocking as Addison had received, but Stocking testified that she saw the most potential for improvement in Addison versus the other two. There is some incongruity in that statement, but, nonetheless, it is a fact. The Strand III team for Addison was made up of a school administrator (Stocking), an administrative support person (Terry), Addison, and a person selected by Addison (Creighton). This team then developed a Professional Assistance Plan (the "Plan") which set forth the areas of performance that needed to be addressed and general goals to be accomplished. Addison's Plan contained four areas of concern corresponding with the four Developing areas in her 2008-2009 annual evaluation. However, six additional areas were added to the Plan, because Stocking said they "needed some attention." No authority for adding additional areas was provided by Stocking other than that the human resources department told her it was allowable. As a result of the added areas of concern, the Plan contained ten EAPs to be addressed by Addison and the team. Within each EAP, there were a number of "Indicators" which more specifically addressed a component within the general EAP. By way of example, the first EAP was "Assessment" with nine Indicators such as: diagnose the entry level and skill of students using diagnostic tests, observations, and student records; assess the instructional level of exceptional students; and, correctly administer required grade level and district assessments in identified assessment windows. The EAPs would be deemed to have been "observed" if Addison made significant progress on the individual Indicators. While 117 Indicators are a lot, many of them overlap and addressing one Indicator may also address several others at the same time. Nonetheless, when written in a Plan, that many EAPs and Indicators could appear quite daunting. At about the same time Addison was notified that she was being placed on Strand III, Stocking decided to move Addison from teaching first grade to a fifth-grade class. Addison had never taught fifth grade, although her certification was for grades one through five. Addison was opposed to the move, because she was more comfortable with first grade, and during the Strand process, she knew that more would be expected of her. She did not feel that a move to fifth grade would be the best scenario for dealing with Strand III. Stocking denied her request to remain in first grade and also denied Addison's request to be transferred to another school. School-to-school transfers are allowed whenever there are openings available at the target school, but it appears no openings were available. Once the new school year commenced, Addison, now in a new teaching environment with fifth grade, had 90 calendar days under the Plan to show improvement in the areas of concern. The Plan is dated August 24, 2009, and contains the following time line: Commence on August 24, 2009 (Date of formal notice to Addison); September 4, 2009 (Day 10)--Assign assistance team; September 14, 2009 (Day 15)--Hold professional assistance plan meeting; September 21, 2009 (Day 22)--Write professional assistance plan; September 22 through November 24, 2009--Plan, implement and collect data; November 24, 2009 (Day 92)--Assessment; December 16, 2009--Written recommendation from lead administrator to superintendent; January 15, 2010--Written recommendation from superintendent to Addison; If termination was recommended; then February 2, 2010--Written request for hearing. The amount of time from when the notice was given to Addison until the assessment was done was 92 calendar days, which is consistent with the times set forth by CTAS. While the schedule complied with CTAS guidelines, Addison obviously did not have 90 days to address the ten EAPs and 117 indicators. Nonetheless, the Strand III process was correctly implemented from a timeframe perspective. In order to effectuate the Plan, the team was to meet at least weekly to review Addison's progress, re-focus her efforts, and establish goals for the coming week. The weekly meetings were generally held at 7:40 a.m., 30 minutes prior to the start of class on Monday mornings. The meetings would sometime run a little long, and Addison would arrive late to her class. In such instances, she was expected to use her teaching skills to catch up with the timed lesson plans. All teachers were expected to teach in accordance with their lesson plans so that at any given time, anyone coming into their classroom would know exactly what lesson was being taught. Strict compliance with the lesson plan schedule was expected from all teachers. There were documented instances of Addison not teaching lessons in strict accordance with the lesson plan schedule. However, there were extenuating circumstances involved. For example, when the weekly team meeting lasted too long, it would adversely affect Addison's teaching schedule. At other times, Addison would teach one course to another teacher's students and vice-versa. As a result, the teachers may not be teaching in accordance with the lesson plan schedule. There was insufficient evidence to find that Addison was in serious violation of the lesson plan schedule requirements. The weekly team meetings were codified in minutes taken by Vice-Principal Monoki. Sometimes two people took minutes of the meetings in an effort to assure correctness. The minutes were ostensibly meant to be a general overview of what the meeting was about, but, in actuality, they were quite detailed concerning some issues. Addison often took exception to the minutes as printed, and would attempt to submit amendments or changes. Those amendments were generally not accepted by the team. At one point Addison requested the right to tape record the meetings, but that request was denied. The form of the minutes was altered in October 2009, into a sort of chart, rather than regular minute format. The purpose of that change was to allow for better comparison between prior weeks, the current week and the upcoming week. The minutes were provided to each team member at the beginning of the subsequent meeting. All of the team members, except for Addison, would sign the minutes to confirm that they were correct and accurate. Addison did not ever agree that the minutes were correct and accurate. Addison's designated representative on the team, Creighton, did sign the minutes each week. During the approximately 45 school days that Addison was assessed under the Plan, she made progress in some areas, but according to the team, her progress was followed by further shortcomings. However, measurement of Addison's progress was extremely subjective. For example, Addison was found to be deficient in the use of "targets" for her class. Targets are written focus points placed on the bulletin board so that students can remember what topics are currently being taught. Addison was chastised for having inappropriate targets. However, when compared to other fifth-grade teachers' targets, Addison's were virtually identical. For example, on September 4, 2009, Addison took pictures of the targets posted in her classroom and two other classrooms. The targets are compared below: Addison Classroom 2 Classroom 3 Reading: Tall tales, plot development (setting influences plot), reading words with long vowels and many syllables Tall tales, plot development, setting, subject & predicate, long vowel sounds, dialect Compound words, setting-> where-> when, words with long vowels, chronological order, building fluency Science: Make observations, explain how science tools are used, describe the steps of the scientific method . . . Tools scientist use, scientific method, mass=amount of matter in an object, Inquiry=observe, measure, gather and record data . . . Tell what causes weather . . . make observations, take measurements, explain how science tools are used, steps of the scientific method. . . Language Arts: Six traits: Idea, Compound subjects, simple and compound voice, organization, compound predicates, subjects and word choice, commas in a series predicates, six sentence fluency traits of writing: idea, voice, organization, word choice, sentence fluency, conventions, Commas used in a series Math: place value Place value through Sums and differences through millions, billions, compare of whole numbers and compare and order and order numbers, decimals, strategies decimals, place place value for solving word value patterns, sums patterns, rounding, problems, place and differences of estimating, adding value patterns, whole number, adding and subtracting and subtracting whole numbers and problem solving decimals decimals There appears to be only minimal differences between the three teachers' targets set forth above. There was no competent testimony at final hearing as to why Addison's wording of her targets was somehow inferior to that of the other teachers. As another example of subjective measuring, Addison was cited for allowing some children to be disengaged while she was teaching other children. At least one outside observer noted that some children were not on task and others were seen leaving the classroom. But Addison explained that children had the right (and need) to leave the class to go the reading center or restroom; other children were supposed to be busy individually at an assigned center, etc. That is, in a fifth-grade classroom, all children were not always doing the same thing at the same time. During the time period that Addison was undergoing the Strand III process, she received a number of disciplinary notices. On September 1, 2009, Stocking sent Addison a memorandum entitled "Conference Summary," which was a criticism of Addison's teaching during a class on August 31, 2009 (one week into the new school year). This memorandum was followed by a number of other letters and memoranda. The first such letter was on September 9, 2009, just 16 days into the Strand III process. The "Warning of Unsatisfactory Performance" memorandum issued by Stocking on that date said Addison had failed to post targets and had been teaching outside the stated lesson plans. Thus, rather than assisting Addison, under the Plan, with this perceived shortcoming, a disciplinary action was taken. Six days later, on September 15, 2009, a letter of reprimand was issued by Stocking. Again, Addison was accused of not posting appropriate targets on her board for use by her students. Then on October 30, 2009, another letter of reprimand was issued, this time for not conducting daily running records for her students. Addison was doing the running records, but the records sometimes failed to include a statement by Addison as to the child's reading status. This was a shortcoming that could have been addressed as part of the Plan and discussed in team meetings. Instead, it was handled as a disciplinary matter. The letter also addressed a concern that one student was missing a number of grades in the grade book. Addison suggests there are reasons for that discrepancy, i.e., the student only recently transferred in to her class. These disciplinary letters were followed on December 3, 2009, with a memorandum from Stocking addressed to Addison (although it refers to Addison in the third person) indicating that Addison had not met "district expectations." No one explained at final hearing as to the necessity of on-going disciplinary reports while Strand III was progressing. Addison was meeting weekly with Stocking and other team members to address all issues, including those addressed in the separate disciplinary charges. One of the discipline letters initially recommended a three-day suspension for Addison. A suspension would be totally inappropriate for someone under Strand III. The recommendation was changed once this fact was brought to Stocking's attention by the union representative. Interspersed with these disciplinary actions were a fairly constant exchange of emails between Addison and Stocking, Monoki, Terry and others. The emails contained concerns about Addison's teaching and responses from Addison. It is clear from the correspondence between Addison and others that there was complete disagreement between them as to Addison's teaching skills. The team meetings to address the Plan attempted to cover some of the 117 EAPs each week. Commencing with the October 5, 2009, meeting, a chart was utilized to compare the team's focus from the previous meeting to the focus for the coming week. The chart also included feedback from persons who had personally observed Addison the prior week and a statement of the specific support to be provided in weeks to come. During the first several weeks, the "focus from prior week" section of the chart was fairly brief, while the "feedback from formal observations" section was quite long. During the last few team meetings, this trend reversed. It appears that more feedback and support was being provided in the earliest stages of the Strand III process than in the later stages. According to the findings set forth in the team meeting minutes, Addison made progress in some areas and struggled in others. For the most part, the minutes reflected a "Not Achieved" status for many of the EAPs which were addressed. Addison made some attempts to amend the minutes of team meetings, but inasmuch as the minutes were not meant to be verbatim transcripts, her requests were generally denied. It is telling that Addison's selection to the team, Creighton, signed off on each of the minutes despite Addison's refusal to do so. However, Creighton maintains that Addison was doing a fine job teaching, notwithstanding comments in the minutes. Under the Plan, Addison was supposed to receive guidance, training, and support by administrative and other designated professionals. There is evidence in the record that Addison's class was visited on a number of occasions by other teachers and trainers. However, the preponderance of the evidence is that the classroom visits more often resulted in negative reactions to Addison's teaching than assistance and guidance. The amount of actual assistance received by Addison during the Strand III process is not consistent with the ideals set forth in the Plan. Nor were there any observations made by administrative personnel from the School or from the district office, although the Plan called for such observations. Under the Plan, Addison was supposed to be provided additional planning periods to work on the issues set forth in the Plan. The additional planning periods were never provided, but Petitioner could not explain why. Based upon the size and breadth of the Plan, it would seem that some extra planning time would have been absolutely essential. It is clear Addison and Stocking did not particularly like each other.4 Their differences could have been based on differences in teaching methods, age, years of experience, or any other factor. Whatever the reason, it is clear from the record that the two individuals viewed the same facts with very different interpretations. It is no wonder the Strand III process was deemed unsuccessful. On December 15, 2009, Stocking sent a recommendation to the superintendent of Collier County Schools that Addison be terminated for failing to make significant improvement in the four original areas of concern. By letter dated January 15, 2010, the superintendent notified Addison that a recommendation would be going to the School Board that Addison's teaching contract be terminated. The decision to terminate Addison's teaching contract was made based on the assessment performed during the Strand III process. Lost in the focus on Addison's abilities or lack thereof was the issue of her students' performance. At the conclusion of the 2008-2009 school year, 17 of Addison's 19 students were credited with having achieved a year's worth of growth. The other two students were deemed unable to achieve a year's worth of growth for reasons outside of Addison's teaching abilities. There were more students in the team leader, Arcand's, class deemed deficient at the end of that year than in Addison's class. Addison did not complete the 2009-2010 school year, so that particular measurement cannot be used to assess her abilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Collier County School Board, finding that although there was ample evidence to support placing Respondent, Peggy Addison, on Strand III, the process was flawed and cannot be used to justify termination of Addison's employment contract. DONE AND ENTERED this 17th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2010.
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132
The Issue Should Respondent be discharged or otherwise disciplined for violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (11941), as amended.
Findings Of Fact Respondent Sydria Carter holds Florida Educator's Certificate number 403413, valid through June 30, 2002, which authorizes her to teach early childhood education and elementary education. She holds a bachelor's degree and a master's degree from Jacksonville University. Ms. Carter was employed by the Duval County School Board as a tenured teacher during all times pertinent. She has been a teacher for about 24 years. Since the 1997-98 school year, she has taught pre-kindergarten at Wesconnett Elementary School. Her pre-kindergarten class for the 2000-01 school year was populated by 20 students. Michael Fleck (Michael), on August 15, 2000, was a four-year-old-boy. August 15, 2000, was Michael's first day in school. He was assigned to Ms. Carter's class at Wesconnett. Michael is the son of Teresa Fleck. On August 15, 2000, she and Michael went together to orientation in the school cafeteria. When orientation was completed, Michael and the other children in his class departed the cafeteria with Ms. Carter and Ms. Fleck. At the end of the school day when Ms. Fleck retrieved Michael, she believed that he was stressed, but after conversations with him, she concluded that he seemed fine. The second day of school, August 16, 2000, Ms. Fleck again took Michael to the Wesconnett cafeteria. Michael expressed a desire to return home, but Ms. Fleck left him there and he proceeded to his class with Ms. Carter. Ms. Carter's class is conducted in a portable classroom. Entrance to the portable classroom is obtained via a ramp. During the lunch period of the second day of school, around 12:30 p.m., Michael was present at the midpoint of the ramp and screaming, "I want my Mommy." He was attempting to flee. Ms. Carter was struggling with Michael in an effort to prevent him from running away. The struggle continued for about one minute. She managed at one point to get her arms under his arms in a manner that Ms. Carter described as the "Heimlich Maneuver," and dragged him toward the door of the portable classroom. As she approached the door she slapped Michael on the back of the head. This was observed by Nickie Gunnoe, a first grade teacher with eight years of experience. Ms. Gunnoe had a clear view of the events which occurred on the ramp leading to the door of Ms. Carter's classroom. Ms. Gunnoe believed that excessive force was used by Ms. Carter with regard to Michael. Because of this she reported the incident to the principal of Wesconnett, Michael Akers. This report was made on the following day, August 17, 2000. When Ms. Fleck arrived at Wesconnett on August 16, 2000, to pick up Michael, she observed the children exit the classroom with Ms. Carter and saw that Michael was in the rear. He was crying. Michael said he wanted to take his candy home. He continued crying as Ms. Fleck escorted him toward her vehicle. Michael said that Ms. Carter had been mad at him three times. En route to her vehicle Ms. Fleck approached Ms. Carter and a brief discussion ensued with regard to Michael. Ms. Carter told Ms. Fleck that Michael was going to have to "adjust." When Ms. Fleck arrived at her vehicle she attempted to secure Michael into the seat. He continued to cry hysterically. Ms. Fleck discovered red marks under his arm and then proceeded with Michael directly to the Principal's office. At the Principal's office Ms. Fleck had a discussion with Principal Akers. Law enforcement officers were called and joined in the discussion. Ms. Carter also entered the office. Photographs of Michael's underarms were taken by police officers. The photographs depict a bright red mark under the left armpit. Ms. Fleck observed indentations consistent with fingernail impressions in the reddened area. These indentations could not be detected in the photographs. However, the angle from which the photographs were taken were not conducive to depicting the type of indentations which were described. At the principal's office, when Ms. Carter appeared on the scene, Michael asserted that she was the person who had perpetrated the injuries which resulted in his acquisition of the red marks. Ms. Carter, at that time, as well as at the time of the hearing, had long fingernails. The actions of Ms. Carter in forcefully grabbing Michael were entirely consistent with her duty to protect the child from running away from school and exposing himself to serious harm from traffic or other hazards. To the extent Michael suffered abrasions, they were the natural and probable consequences of his escape attempt. The slap administered to Michael's head, however, was in excess of the action necessary to protect Michael, and was a battery. The next day, August 18, 2001, Michael told his mother that Ms. Carter had grabbed his hair and, "throwed him on the nappy mat," because he didn't have a blanket. As a result of this statement Ms. Fleck called the Principal which precipitated the arrival of a police evidence technician at her house. Photographs were taken of Michael's head by the police evidence technician. The photographs were entirely consistent with the thesis that his scalp had been pierced by long fingernails when his head had been grasped. The wounds appeared in the photograph to be recently incurred. Ms. Fleck had not observed any marks on Michael's body prior to August 16, 2001. It is apparent that the marks resulted from Ms. Carter's forcefully, and inexcusably, grabbing Michael's head. Subsequent to the events of August 16, 2000, Michael did not attend school because he was traumatized by his experience with his first teacher, Ms. Carter. During the 1996-97 school year, and again the following year, the Principal of Wesconnett, Mr. Akers, counseled Ms. Carter concerning the excessive use of force with children. In 1996 he specifically counseled her to avoid putting her hands on a child except in an emergency situation, when the child was in danger, or when the child was endangering others. Ms. Carter's personnel record reflects a satisfactory performance while employed at Wesconnett. Ms. Carter's explanations of the events giving rise to Michael's injuries, to a substantial extent, did not comport with the other evidence adduced at the hearing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Ms. Carter violated Article 1, Section 4 of the Duval County Teacher Tenure Act by refusing to obey the laws of the State of Florida or regulations adopted by authority of law, specifically, Rule 6B-1.006(3)(f), Florida Administrative Code, by intentionally denying a student's right to be free from being battered by his teacher. Suspending Ms. Carter without pay for a period of one school year beginning on August 15, 2000, in lieu of discharge, and requiring as a condition of reinstatement, the completion of such anger management training as the Duval County Public Schools may deem appropriate, prior to the beginning of the 2001-02 school year. DONE AND ENTERED this 15th day of May, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of May, 2001. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 John C. Freyer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-2115 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the offenses alleged in the Amended Notice of Specific Charges and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. The Petitioner has rule making authority and the authority to enter into collective bargaining agreements. At all times pertinent to this proceeding, the parties were bound by the provisions of the collective bargaining agreement between the United Teachers of Dade and the School Board. Pursuant to Section 1 of Article V, Petitioner has the exclusive right to suspend, dismiss, or terminate an employee for "just cause." The term "just cause" as defined by Section 3(D) of Article XXI of the contract: . . . includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009 (Florida Administrative Code). Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4A-1.21, which sets forth the expected conduct of employees as follows: All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4C-1.02, which sets forth the expected conduct of non-instructional personnel as follows: The Board recognizes and appreciates the important supporting role played by non- instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons of the highest quality to fill vacancies as they occur. One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms the wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state. Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community. Pursuant to its rule making authority, Petitioner has adopted Rule 6Gx13-4-1.08, which prohibits violence in the workplace as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public School employees have a right to work in a safe environment. Violence or threats of violence by or against students and employees will not be tolerated. Article VIII of the collective bargaining agreement addresses the subject of a “Safe Learning Environment.” Section 1(A) of Article VIII provides, in pertinent part, as follows: “A safe and orderly learning environment is a major priority of the parties. ” At all times pertinent to this proceeding, Respondent was employed by Petitioner as a school security monitor. The job description of a school security monitor provides the following basic objectives and responsibilities: BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures the appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school administration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the presence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gatherings (before, during, and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Respondent was initially employed by Petitioner as a temporary custodian in February 1988, and assigned to Madison Middle School (Madison). In June 1988, Respondent was employed as a school security monitor at Madison, where he remained until December 1993. At all times pertinent to this proceeding, Thelma Davis was the principal of Madison. In December 1993, Respondent's assigned post was near a gate in close proximity to the chorus room. J. B. and K. A. were female students at Madison during the school year 1993-94. J. B. was born March 8, 1981. In December 1993, J. B. was a twelve year-old seventh grader and a member of the chorus class taught by Edward G. Robinson. In early December 1993, Respondent made a series of inappropriate comments and gestures of a sexual nature to J. B. when she passed his assigned post. Respondent winked at J. B. as she passed his post and blew her kisses. On one occasion, he asked if she was a virgin. On another occasion he asked her the color of her underwear. On another occasion, he made a statement as to how warm they would be under covers together. K. A. overheard Respondent say to J. B. that he and she would be warm under the covers together. J. B. became visibly upset the day Respondent asked her the color of her underwear. Mr. Robinson observed J. B. crying. J. B. thereafter told Mr. Robinson about Respondent's comments and behavior. Mr. Robinson reported the information to the principal. A day or two later, J. B., accompanied by K. A., again complained to Mr. Robinson about Respondent's comments and behavior. Mr. Robinson again reported the information to the principal, and an investigation was instigated. The investigation was conducted under the supervision of Captain Arnie Weatherington, an experienced law enforcement officer employed by the Dade County School Police. In December 1993, Respondent was removed from the school campus and reassigned to the Region III office. The investigation was closed in May 1994 as being substantiated. In light of the substantiated findings, Ms. Davis recommended that Respondent's employment with the Petitioner be terminated. Louise Harms of the Petitioner' Office of Professional Standards conducted a Conference for the Record (CFR) with Respondent on May 3, 1994. During the CFR, Ms. Harms advised Respondent as to the findings of the investigation. Respondent remained assigned to the Region III office until February 1995, when he was involuntarily transferred to Westview Middle School. The investigation into this incident was closed by Respondent’s reassignment to Westview. There was no formal recommendation at that time by the Superintendent or by the Office of Professional Standards that Respondent’s employment be terminated for his misconduct at Madison. At Westview, Respondent had the responsibility to patrol the outdoor areas of the campus. He was given a walkie- talkie and a golf cart to assist him in performing his duties. Respondent’s instructions as to the cautious and safe use of the golf carts included the explicit instructions that children were not permitted to ride in a golf cart or to sit in a parked golf cart. During the school year 1996-97, Respondent's assigned responsibilities included patrolling the physical education area. During the 1996-97 school year, John McHale was a physical education teacher at Westview. His responsibilities included taking attendance, maintaining control of the class, and following the district curriculum. In November 1996, Mr. McHale's physical education class and three other classes that were taught by a Ms. Roque, Patricia NewKirk, and Nathaniel Stephens were held on an outdoor basketball court. On November 13, 1996, Mr. McHale was in charge of his own class and, in her absence, Ms. Roque's class. Mr. McHale's class and Ms. Roque's class were assembled on the basketball court so Mr. McHale could take roll. In addition, Mr. Stephens' class was assembled on the basketball court so Mr. Stephens could take roll. While Mr. McHale was in the process of taking roll, Respondent began joy riding in his golf cart. He rode onto the basketball court around and between the two classes under Mr. McHale's supervision. Students jumped on the golf cart. Respondent talked to students. Mr. McHale approached Respondent, told Respondent that he needed to get the classes under control, and asked Respondent to get the golf cart off the basketball court so he could do his job. In response, Respondent stated: "Take your ass back to your class. No bald-headed white man telling me what to do."2 Tempers flared, Respondent got off the golf cart, and the two men approached one another. Mr. Stephens, who is larger than either Respondent or Mr. McHale, stepped between the two men with his back facing Respondent. Respondent struck out at Mr. McHale with a closed fist, making contact with Mr. McHale’s shoulder. Mr. Stephens separated the two men and took Mr. McHale to the locker room. Respondent did not have any justification for driving the golf cart onto the basketball courts while the physical education classes were using the courts. That conduct disrupted the classes that were using the courts. Mr. McHale reported the incident to Darrel Berteaux, the school principal. Mr. Berteaux requested that the DCSP conduct an investigation. The investigation into this incident was conducted by Lieutenant Oryntha Crumity, an experienced law enforcement officer employed by the Dade County School Police. During the course of the investigation, Respondent contacted several of the student witnesses and asked each student whether the student was on his side. By making such contact, Respondent attempted to intimidate these student witnesses. Approximately a month after the incident, Mr. Berteaux received reports that Respondent had approached several student witnesses. He immediately requested that Respondent be transferred from Westview. Respondent was thereafter transferred from Westview. Proceedings to terminate his employment were initiated following a review of these matters by the Petitioner's legal staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order terminate Respondent's employment. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Petitioner employed Respondent as a secretary at Lindsey Hopkins Prior to 2010, school administrators at Lindsey Hopkins had received numerous complaints from school employees that Respondent had verbally harassed them. On February 8, 2010, Esteban Sardon was working as Assistant Principal of Lindsey Hopkins. On that date he was in one of the school's administrative offices and Respondent was also present. Mr. Sardon coughed while in the office. Almost immediately, Respondent accused Mr. Sardon of having spit on her. Respondent sent Dr. Rosa Borgen, the principal of Lindsey Hopkins, a letter on February 10, 2010, that alleged that Mr. Sardon had deliberately twice spit and coughed in her face. In her letter, Respondent described "[t]wo big huge cough breath [sic] rate were [sic] about 70 to 80 wind speed with a [sic] some saliva." Respondent also sent Mr. Sardon a memorandum calling his behavior "unprofessional" and alleging that she was going to contact "CRC" (the Civil Rights Compliance Office). Mr. Sardon denied, credibly, that he spat on Respondent. The more credible evidence established that he did cough twice in Respondent's presence, but the coughs were dry coughs and not in the direction of Respondent. Respondent fabricated the allegation that Mr. Sardon had purposefully spat on her. In an attempt to resolve the issues related to Respondent's allegations that Mr. Sardon had spat on her, Mr. Gornto, a district administrator, decided that the school administrators should meet with Mr. Sardon and Respondent. On March 9, 2010, Pamela Johnson, an instructional supervisor, from Mr. Gornto's office, met with Mr. Sardon, Respondent, Dr. Borgen, and another assistant principal of Lindsey Hopkins. At the meeting, Respondent presented a document entitled "What Would Make Me Happy" and asked Mr. Sardon to sign it. The "demands" were as follows: I will never ever to [sic] use you're [sic] inside waste on me [sic]. Meaning neither your breath, nor your saliva. I am not a toilet. I am Human [sic]. A Human Being [sic]. Not to try to embarrass me in front of my co-workers. Not to retaliate against me after this incident. Big apology. Mr. Sardon offered an apology to put the matter at rest, but he refused to sign the document. Shortly after the "spitting" accusation, Respondent had conflicts with Drusilla Sears and Donna Wallace, both of whom worked closely with Mr. Sardon. On March 2, 2010, Ms. Sears, a school account clerk, asked Respondent if she was finished using a copy machine. Respondent told her that she had asked a "stupid question," thereby starting a verbal altercation that included finger- pointing by Respondent and by Ms. Sears. The greater weight of the credible evidence established that Ms. Sears did not threaten physical harm to Respondent. This run-in upset Ms. Sears. On March 3, 2010, Respondent sent another letter to Dr. Borgen claiming that Ms. Sears had tried to beat her up. In the letter Respondent also stated, in all capital letters, the following: "I AM NO FOOL. I KNOW SOMEONE TOLD DRUSILLA TO DO THIS TO ME." There was no credible evidence that anyone had instructed Ms. Sears to do anything to Respondent. To the contrary, the greater weight of the credible evidence established that Respondent provoked the incident with Ms. Sears. On March 5, 2010, Respondent wrote another letter to Dr. Borgen. That letter referenced the incidents with Mr Sardon and Ms. Sears and also asserted that someone had placed child pornography on her school computer. There was no credible evidence that anyone had placed pornography on Respondent's computer.1 On March 16, 2010, Mr. Gornto sent Respondent a memorandum related to an earlier correspondence he had received from Respondent. In the letter Mr. Gornto told Respondent that any future complaints regarding employees should be made to Dr. Borgen, to the CRC, or to the school police department. Despite this directive from Mr. Gornto, Respondent continued to contact Mr. Gornto. These contacts (Petitioner's Exhibits 9, 12, and 17-21) were in the form of emails that contained false (and often nonsensical) allegations of employee wrongdoing against her. Each of these emails constituted separate and distinct acts that contradicted Mr. Gornto's directives to Respondent. A recurring theme in those emails was that Dr. Borgen and other school employees were trying to "destroy" her or make her "miserable." In one email, Respondent alleged that one of Mr. Gornto's subordinates had been impersonating Mr. Gornto. In April 2010, Respondent approached school clerk Donna Wallace and accused her of saying something about Respondent to a school counselor. Ms. Wallace denied, credibly, that there was a factual basis for the allegation. Respondent told Ms. Wallace to "watch her back" and threatened to sue her for slander. The incident made Ms. Wallace feel uncomfortable and embarrassed. On April 13, 2010, Respondent engaged in a verbal altercation with Shundra Hardy, a data input specialist. Ms. Hardy worked in the student registration department. When Mr. Sardon was made aware of this incident, Mr. Sardon told Respondent that she was only to visit the registration area as long she did not disturb other employees. This directive caused Respondent to yell and confront Mr. Sardon in his office, As a result of that confrontation, Mr. Sardon called school security. On May 18, 2010, a conference for the record (CFR) was held with Respondent. Dr. Borgen, Mr. Gornto, and Dr. Anna Rasco (Administrative Director of Petitioner's Office of Professional Standards) represented Petitioner. The recent conflicts involving Respondent prompted a decision that she would have to undergo a fitness for duty evaluation. During the time the evaluation was to be completed, Respondent was placed on alternate assignment at her home. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for the evaluation, and she was directed not to contact the school (other than through the principal's office to report her attendance) while on alternate assignment. By letter dated August 10, 2010, Stephen Kahn, M.D., advised Dr. Rasco that Respondent was not fit for duty due to her mental status.2 By letter to Dr. Rasco dated September 4, 2010, Richard S. Greenbaum, Ph.D., a psychologist, opined that Respondent could return to work if she continued to see a psychotherapist.3 On October 4, 2010, Respondent called Lindsey Hopkins and spoke with two employees. These contacts were in direct violation of the directives that had been issued to her.4 On October 14, 2010, a CFR was held with Respondent. Ms. Nyce Daniel (who had replaced the retired Dr. Borgen as Principal of Lindsey Hopkins), Mr. Gornto, and Dr. Brasco represented Petitioner. This CFR was held to address Respondent's non-compliance with the terms and directives given to her while on alternate assignment. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for a fitness evaluation. Respondent was also advised that she would not be permitted to return to work because of the conflicting opinions between Drs. Kahn and Greenbaum. Respondent selected Joseph W. Poitier, Jr., M.D., to conduct her third evaluation. By letter to Dr. Rasco dated March 14, 2011, Dr. Poitier opined that within a reasonable medical certainty Respondent was able to return to work without restriction.5 On March 30, 2011, a CFR was held with Respondent. Ms. Daniel, Mr. Gornto, and Dr. Brasco represented Petitioner. Based on Dr. Poitier's opinion, Respondent was advised that she could return to work on April 4. Respondent was again given directives that included explicit directives to refrain from the behaviors that had caused the need for her fitness for duty evaluations. Specifically, Respondent was instructed to avoid altercations with school staff. On April 5, 2011, with people present in the office, Respondent, using vulgar language, told Cassandra Johnson (a teacher at Lindsey Hopkins) that her husband, Charles Johnson (the head custodian) had engaged in a sexual affair with Dr. Borgen and that Dr. Borgen had been "doing all the guys in school." Ms. Johnson attempted to distance herself from Respondent, but Respondent pursued Ms. Johnson down the hall and continued her verbal tirade. Ms. Johnson was humiliated and upset by the incident. Respondent's actions disrupted Ms. Johnson's ability to perform her duties that day. Mr. Johnson was very upset by Respondent's accusation and denied, credibly, that he had ever had a sexual relationship with Ms. Borgen. Mr. Johnson was concerned that the accusations could hurt his marriage, and he was concerned because his wife was very upset. On April 7, 2011, Respondent confronted Thomas Nunn (an automotive instructor at Lindsey Hopkins) and implied that he had been in an intimate relationship with Dr. Borgen. Mr. Nunn was not offended by Respondent's comments. However, Ms. Daniel learned of Respondent's comments to Mr. Nunn. On April 8 Ms. Daniel directed Respondent to refrain from such conduct. At the time Ms. Daniel gave those directions to Respondent, Ms. Daniel did not know about the incident involving Mr. and Ms. Johnson. On April 8, 2011, Respondent called Mr. Gornto's office to ask permission to take half-day leave. This call was in violation of the directives Mr. Gornto had given to her as to how she was to communicate with her supervisors. On April 11, 2001, Ms. Daniel learned of the incident involving Mr. and Mrs. Johnson. On or about April 28, 2011, Respondent complained to the CRC that Erinn Gobert (the ESOL chairperson at Lindsey Hopkins) and Sophia Hall (an assistant principal at Lindsey Hopkins) had been harassing her. She stated that they were mumbling things about her, taunting her, and teasing her. She further reported that Ms. Gobert and Ms. Hall made gestures that they wanted to fight with Respondent. Respondent's accusations of harassment triggered an investigation. Respondent's accusations were complete fabrications. Neither Ms. Gobert nor Ms. Hall had any meaningful contact with Respondent. On May 18, 2011, a CFR was held with Respondent to address her gross insubordination and violation of other school board rules. Ms. Daniel, Mr. Gornto, and Dr. Rasco represented Petitioner. As a result of her behaviors, Ms. Daniel had to constantly give Respondent specific tasks to minimize Respondent's interaction with other employees. Despite Ms. Daniel's efforts, Respondent's run-ins with co-workers were throughout the school and reached outside of Respondent's assigned work area. Many of her co-workers were not comfortable working with or near Respondent. The efforts to shield co- workers from Respondent created extra work for Ms. Daniel. Respondent's repeated contacts with Mr. Gornto and her baseless accusations towards co-workers disrupted his work and consumed an inordinate amount of his time. Respondent's behavior negatively impacted employee morale at Lindsey Hopkins and disrupted its operations. Respondent repeatedly refused to obey administrative directives that were reasonable in nature and given with proper authority.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2011.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 21st day of November, 2017.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following facts are found: Respondent Kenneth Neil Watts has been employed by the Levy County School Board for ten years. He has continuously been assigned to Yankeetown School where he has taught seventh and eighth grade math, science and physical education. He has been on continuing contract status since 1975. Prior to coming to Yankeetown, he had an additional three years of teaching experience. On August 20, 1981, the first day of school for students, respondent came to school a little late. Harvey Markham, the Principal of Yankeetown School, believed that he smelled alcohol on respondent's breath. He had a conference with respondent and the building representative for the Levy County Educational Association, Barbara Delores Gaitanis, was present at this conference. Mr. Markham accused respondent of being inebriated and respondent denied that he had been drinking any alcoholic beverage: Respondent became very upset from his conversation with Mr. Markham, did not feel that he could go into his classroom in that upset condition and asked if he could be relieved from his duties on that day. Respondent then drove himself home. Nothing was placed in respondent's personnel file concerning this incident. Ms. Gaitanis did not notice any smell of alcohol from the respondent, and did not notice anything unusual about respondent's physical appearance. Mr. Markham believed he smelled alcohol and noted that respondent's face was flushed and his eyes were bloodshot. Respondent was not slurring his speech or staggering. On December 9, 1981, respondent did not report for work. This was the first occasion when respondent had not given prior adequate notice of his absence. The school called respondent's residence, respondent answered the phone and said that he had overslept and would be in later. Respondent's words during that conversation were somewhat slurred. Respondent's wife later called in and reported that respondent would not be in that day. Mr. Markham asked respondent to go to a doctor that day and to bring him a note from the doctor. Respondent did go to a doctor and brought Mr. Markham a paid receipt for the visit. Two students believed they smelled alcohol on respondent's breath on or about December 18, 1981, the last day of school before the Christmas holidays. These students did not notice any change in respondent's physical appearance or behavior on that occasion. Three other students believed they smelled alcohol on respondent's breath on several occasions. They could not recall the dates. On such occasions, respondent showed no difference in behavior or physical appearance. Two teachers who had worked with respondent for ten years and saw him on a daily basis, sometimes in the morning, at lunchtime and again at the end of the school day, never smelled alcohol on respondent's breath. One of these teachers specifically remembered seeing respondent on the last day before the Christmas holidays. Three teachers' aides employed at Yankeetown School for 6, 4 and 2 1/2 years respectively, observed respondent on a daily basis--sometimes three times a day--and never smelled alcohol on respondent's breath. Twelve students who had respondent as a teacher for two or three periods a day on a daily basis during the 1981-82 school year never noticed the odor of alcohol from the respondent. Many of these students had respondent as a teacher during the first and second periods of the day and would have been present both on the day preceding the Christmas holidays and on April 19th, the day of his suspension. On April 19, 1982, Principal Markham's secretary noticed the smell of alcohol on respondent's breath as he was taking roll in his classroom. Mr. Markham called respondent to his office and building representative Gaitanis was again present. Markham accused respondent of being intoxicated, respondent denied that he had been drinking, and Markham then gave respondent the option to take a breathalizer examination. Respondent replied that he would do so if he could do it locally and did not have to travel to Bronson. Bronson is some thirty-five miles from Yankeetown and respondent did not have a car on April 19th. Mr. Markham did not order respondent to take the breathalizer exam. Mr. Markham sent respondent to the teachers' lounge and then asked his secretary to drive respondent home. Ms. Gaitanis noticed no odor of alcohol during the conference between respondent and Mr. Markham. A teacher's aide who saw respondent in the teachers' lounge at about 10:00 a.m. on April 19th and sat three to four feet away from him noticed no odor of alcohol. Mr. Markham admitted that respondent did not slur his speech, stagger or otherwise appear intoxicated in his behavior. He did observe that respondent's eyes were bloodshot and his face was flushed. Mr. Markham's secretary smelled the odor of alcohol while driving respondent home, but did not notice anything peculiar in respondent's behavior or appearance. Respondent does not like and does not drink hard liquor. He sometimes drinks a beer or two on the weekends or in the afternoon or evening after school. Respondent does not drink beer or alcohol at school or in the mornings before school. His eyes are often bloodshot and he occasionally has trouble sleeping at night. On Sunday, April 18th, respondent had been at the beach in the sun all day. Yankeetown is a small town with a population of approximately 500. If a resident had a drinking problem, it is probable that it would be common knowledge throughout the community. There was no testimony from parents, teachers or other community members that they had heard that respondent came to school intoxicated or with alcohol on his breath, or otherwise had a drinking problem. Principal Markham's "Instructional Evaluation" of respondent for the 1981-82 school year was prepared on March 18, 1982. As was true for the previous years' evaluations, respondent received a "Currently Satisfactory," the highest rating available, in all areas under the headings of "Teaching Competencies" and "Personnel and Professional Qualities." The subareas in which respondent was rated included "planning," "teaching techniques," "classroom management," "accurate and punctual in routine duties, records and reports" and "complies with school, county and state policies." Respondent took eleven full days and five half days of sick and personal leave during the 1981-82 school year. Other than the one December 9th occasion, respondent gave adequate notice of his absences. His leave days were always approved and he was paid for each of them. Mr. Markham felt that respondent's absences were a "minor" problem and he would not have recommended termination on this basis alone. He discussed respondent's absences with him on one occasion, but did not place anything in writing in respondent's personnel file. Respondent prepared lesson plans for substitutes to use during his absences and these plans were submitted to Principal Markham. Markham recalled discussing inadequate lesson plans with respondent on one or two occasions, but admitted that he had not previously placed much emphasis on lesson plans. No memoranda were placed in respondent's personnel file concerning lesson plans, and respondent could not recall any discussion with Mr. Markham regarding the adequacy of his lesson plans.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges contained in the April 30, 1982, "Recommendation of Dismissal" be DISMISSED, and that respondent be immediately reinstated with back pay from May 7, 1982, the date of his suspension without pay. Respectfully submitted and entered this 30th day of August, 1982, 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 30th day of August, 1982. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 C. Anthony Cleveland General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Francis E. Rowell Superintendent School Board of Levy County, Florida Post Office Box 128 Bronson, Florida 32621-0128
