Findings Of Fact Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract for approximately 15 years. He has a bachelor's degree and a master's degree in the area of education. During the 1988-89 school year Respondent was assigned as a teacher to Highland Oaks Middle School. Danielle Fisher was a student in Respondent's fifth period math class. On May 8, 1989, during math class, Dantelle Fisher became involved in a loud argument with one of her friends over which of the two girls was the owner of a "fucking lipstick." Fisher, who was also eating candy, kept proclaiming to the other girl, "Fuck you. It's mine." Fisher's argument disrupted Respondent's math class and the class next door. Respondent directed Fisher to be quiet, and Fisher refused. Respondent directed her again to be quiet, and again she refused. Respondent directed her to leave the room, and she refused. Respondent again directed her to leave the room, and she yelled at him "Fuck you. Screw you, asshole." Fisher continued yelling profanities, and Respondent went over to where she was sitting. He took her left arm to guide her out of her seat, and she resisted, refusing to move. He then exerted a small amount of force, pulling her up from her seat. Respondent gave her her books and her purse and led her by her left arm to the open classroom door, instructing her to report to the office. Respondent then closed the classroom boor. Fisher then opened the classroom door and screamed at Respondent, "Fuck you. I'm going to get you fired." She then yelled to her classmates, "Everybody, remember this." She then showed them her left arm which at that moment showed finger prints, i.e., the impression of where Respondent's fingers had been on her arm. She then left. By the time that Fisher reached the principal's office, she had red welts and scratches on her right arm. Respondent had not touched Fisher on her right arm. Fisher was not humiliated or embarrassed by the incident. She had been removed from Respondent's classroom on previous occasions for disruptive conduct and had been removed from her social studies class on a previous occasion for banging on the wall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered dismissing the Specific Notice of Charges filed against Respondent and reinstating Respondent to his position as a classroom teacher with full back pay from the date of his suspension to the date of hid reinstatement. DONE and ENTERED this 30th day of April, 1990, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1990. APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 89-6345 Petitioner's proposed findings of fact numbered 1 and 6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact lumbered 2 and 3 have been rejected as being irrelevant to the issues under consideration in this proceeding. Petitioner's proposed finding of fact numbered 4 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 5 and 7-12 have been rejected as not being supported by the weight of the credible evidence in this proceeding. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 5 and 6 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact: numbered 1-4 and both numbers 7 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. COPIES FURNISHED: William DuFresne, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Dr. Paul W. Bell, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent's conduct constitutes just cause for her dismissal from employment with Petitioner.
Findings Of Fact Petitioner ("Petitioner" or "School Board") is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Rosalinda Morales (Respondent) has been employed by the School Board for nine years and, concerning the matters at issue in this hearing, was a classroom teacher at Inwood Elementary School in Winter Haven, Florida. She was employed pursuant to terms of a collective bargaining agreement. Inwood Principal Amy Heiser-Meyers (the "Principal") issued a letter of concern to Respondent on September 28, 2011, in which she reminded Respondent of the importance of timely confirming her students' attendance each day. The Principal provided written confirmation of a verbal warning to Respondent by letter dated June 7, 2012, concerning Respondent's failure to advise the school she would be absent from work. The Principal provided written confirmation by letter dated November 27, 2012, of a second verbal warning for Respondent's failure to advise the school that she would not be present and for arriving late at work on another occasion. The Principal issued a written reprimand, following a conference with Respondent, by letter dated February 13, 2013. The written reprimand was the result of Respondent having failed to follow specific instructions and not properly handling student documentation. The Principal issued Respondent a second written reprimand by letter dated February 15, 2013, following a conference resulting from Respondent having submitted attendance records indicating that a student was present in class when, in fact, the student was absent. By letter dated February 28, 2013, the Principal requested that Superintendent John Stewart suspend Respondent without pay for several incidences of ongoing misconduct. These included Respondent's use of inappropriate and disparaging student behavior techniques; Respondent being unaware that two kindergarten students had walked out of her class without permission; and Respondent's repeated use of obscenities and disparaging comments regarding staff members while present at the school. Dennis F. Dunn, the Assistant Superintendent for Human Resources, issued a letter dated March 4, 2013, giving Respondent a three-day suspension without pay as a result of this ongoing misconduct. On July 10, 2013, the Principal wrote Superintendent Kathryn LeRoy again requesting a suspension without pay for Respondent as the result of Respondent's continued, ongoing misconduct in a number of incidences set forth in that letter involving failure to follow established school protocol, absence from work, and her lack of knowledge of the whereabouts of young students. Based upon that letter, the assistant superintendent for human resources issued a letter, dated July 18, 2013, suspending Respondent without pay for five days. Respondent never filed a grievance or any formal complaint contesting the above-described disciplinary actions taken as the result of her behavior. On May 8, 2013, Respondent was teaching her kindergarten class. She had 18 students in her classroom. She was being assisted in her classroom that day by Ms. Ellistine Smith, a retired principal. Near dismissal time, at approximately 2:30 p.m., D., a student in the classroom, became disruptive. D. had behavior problems throughout the school year. D. refused to stay in his assigned area and constantly disrupted lessons. D. is known as a "runner," meaning he would run away from teachers or the campus in general. Respondent regularly had to chase D. to try to catch him. She would never be able to catch him because whenever she got close, he would again run away. On that day, D. decided not to participate in class. He removed his shoes and threw them at other students, at the ground, and at Respondent. He took off his shirt and threw it at students. Respondent directed D. to go to time out, but he refused. Respondent asked Ms. Smith to keep an eye on the class while she removed D. from the classroom. Respondent looked outside the classroom for the paraeducator who normally sits in the hallway, but she was not present at that time. Respondent decided to take D. to the fifth grade building to have him stay with another paraeducator. D. voluntarily walked with Respondent down the hallway to the fifth grade building. She was holding him by the wrist. When they arrived at the fifth grade building, D. resisted going further and tried to pull away from Respondent. She maintained a stronger grip on his wrist to prevent him from running away. Respondent then opened the door to the fifth grade building, did not see anyone, but heard the copy machine running in the copy room. Respondent began to lead D. into the ESOL (English for Speakers of Other Languages) room outside the copy room, but he let his body go limp. Respondent lifted him to carry him into the building and towards the copy room, but could not go very far due to her petite stature. She dragged him a short distance to the copy room where Venise Stinfil, a third grade teacher was working. Respondent left D. with Ms. Stinfil, stating that "[she] can't handle or deal with this at this time, because I'm being observed." Respondent dropped the student's arm and returned to her classroom. Ms. Stinfil noticed scuff marks on D.'s shirt and that the shirt was very dirty and the student distraught. Fifth grade teacher Erin Rodgers was also present at the time Respondent brought D. to Ms. Stinfil's room. She saw Respondent holding D. by his arm and dragging him a short distance into Ms. Stinfil's room. Respondent did not intend to injure D., and he did not appear to have any physical injuries as a result of being brought to Ms. Stinfil's room. Ms. Stinfil testified that her training would have led her to handle the situation with D. differently. When he went limp and laid on the floor, she would have talked with him to try and get him to stand up to move on to their destination rather than taking him by the wrist and pulling/dragging him along. If the student refused to get up, she would have called someone from administration, who was trained in handling such situations, to help talk the student into compliance or appropriately help him up and move to their destination. She had been trained to never put her hands on students. Respondent acknowledged that the procedures she used in taking D. from her classroom might not have been the preferred method in which other teachers had been trained, but it was a choice of handling such matters she had used before. Respondent received a letter from Mr. Dunn dated July 29, 2013, advising her that Superintendent LeRoy would recommend her termination from employment at the next meeting of the School Board on August 13, 2013. When Respondent requested a hearing concerning the termination, she was suspended without pay pending the outcome of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 17th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 January, 2014. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19, North Clearwater, Florida 33761 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 Kathryn LeRoy, Superintendent Polk County School District Post Office Box 391 Bartow, Florida 33831
Findings Of Fact Davis began working with the Board on September 16, 1974, as a custodian in the maintenance department. In 1980 Davis was transferred to the Stewart Street Elementary School as a custodian. In 1988 Davis was transferred to the Carter-Parramore Middle School as a custodian. On March 23, 1992, Davis was suspended by the Superintendent with pay. On March 25, 1992, Davis was recommended for termination and was suspended without pay by the Board. The suspension and recommended termination were the result of accusations made by Tomeka Mitchell and Tiesha Parker that Davis had made sexually explicit comments to them and had inappropriately touched them. Tomeka and Tiesha both testified regarding their versions of what occurred on January 28, 1992. Two other students, Cheryl Denise Roberts and Lashea Alexander also testified. Based on the demeanor of these witnesses and on the pervasive conflicts in their versions of the events, it is determined that their testimony is not credible or worthy of belief. Tomeka testified that on January 22 or 23, 1992, she and "Sherry" were going to meet Tiesha near the gym and that Davis stopped them, put his arms around Tomeka and Tiesha and said "This is what he wanted" and opened her button. She said nothing else happened. However, she apparently reported to HRS that Davis had touched her breast and unbuttoned her blouse. HRS determined that there was no evidence to verify these allegations. [See Finding of Fact #14] Tiesha said she was going to meet Tomeka, who was already talking to Davis, and when she and Tomeka began to walk away, Davis asked where they were going, called them over to where he was standing, and told them he "wanted some." When they asked what he "wanted," she said Davis pulled their heads together, tried to open her blouse which was buttoned, and then he "did it to Tomeka and looked down her shirt." Tiesha said that Cheryl Roberts and Lashea Alexander were standing next to them and all four discussed what happened and decided to go to the office and report it. On cross-examination, Tiesha acknowledged that Tomeka's blouse was unbuttoned before Davis called them over. Cheryl testified that she saw Davis look down Tomeka's blouse and that she (not Tiesha) was with Tomeka when Davis said he "wanted some." However, when Cheryl talked to Mr. Pace, the principal, on January 28, 1992, she said she had not seen anything, but was reporting what she had been told by Tomeka and Tiesha. Additionally, the information given by Cheryl at the time of the incident, the testimony she gave in her deposition on May 14, 1992, and her testimony at the hearing were inconsistent. Finally, Cheryl never mentioned that Davis had allegedly tried to look into Tiesha's blouse. Lashea's testimony was also contrary to that of Tomeka and Tiesha. According to Lashea's version, Tomeka and Tiesha had told her that Tomeka was afraid to go to class because Davis might say something to her, so Tiesha walked Tomeka part way to class. Lashea was near the gym with Cheryl and she saw Davis try to look into Tomeka's blouse. Lashea and Cheryl discussed what they had seen and Tomeka and Tiesha came back to the gym. Lashea told Tomeka that Davis had tried to look into her blouse and Tomeka said "Yeah, he tried to, but I didn't let him." Lashea denied that Davis tried to look in Tiesha's blouse. However, Mr. Pace recorded that on January 28, 1992, Lashea had not seen anything and had only told him what she was told by Tomeka and Tiesha. The only conclusion that can be drawn from the demeanor of these girls and from the differences in their stories is that no sexually explicit statements were made by Davis and that he did not he touch them in an inappropriate manner. The version of the incident given by Davis is credible and worthy of belief. On January 28, 1992, Davis saw Tomeka and Tiesha in the open corridor near the gym after the final bell for sixth period had rung. They were heading away from the gym. Davis asked them what class they were supposed to be in, and by their responses he thought they were supposed to be in gym. Tomeka's blouse was open and the top few buttons were undone. Davis told her to button her shirt up and he said he was sure that her parents wouldn't want her going around campus "looking like a 10 whore." Davis then told them they should be in class and he put his hand on the upper arm of each girl to guide them in the direction of the class. When it appeared they were going in the correct direction, Davis left them. Davis is a credible witness and his statements at all times between January 28, 1992, and the hearing have been consistent and forthright. According to Mr. Pace, the principal, and Lt. Morris, the school resource officer, Davis is a man of his word who is known to be honest and trustworthy. Further, Davis' reputation in the community is one of honesty and truthfulness. John D. Mathers, a Child Protective Investigator for HRS, sent a letter to Bryant dated March 18, 1992, and therein stated "The victim's statements of language addressed them by Dr. Davis [sic] meets departmental guidelines to verify the allegation of sexual exploitation, i.e. indecent solicitation of a child or explicit verbal enticement, and closing of report with classification of proposed confirmed." While this sentence is so poorly written as to render it unintelligible, Bryant interpreted it as saying that HRS had found that Davis had made inappropriate and explicit sexual comments and that these allegations of sexual exploitation were verified. In fact, the letter from Mr. Mather doesn't quite say that. Additionally, Mather said in his letter that Tomeka Mitchell told him that Davis had touched her left breast and had unbuttoned her blouse, but that no other witness verified Tomeka's allegations, and that those allegations of sexual maltreatment were not classified as proposed confirmed. The letter to Davis from Bryant dated March 23, 1992, advised Davis that the reason for the suspension and recommended termination was Davis' violation of Gadsden County Board Rule 5.112 which provides in pertinent part: Any member of the non-instructional staff may be dismissed by the School Board during his term of appointment, when a recommendation for dismissal is made by the Superintendent, giving good and sufficient reason therefor. Good and sufficient reason shall include but not be limited to: * * * (h) Violation of law, State Board of Education Rules, or School Board Rules. Upon investigation, it has been determined that on January 22, 1992 and January 28, 1992, you made inappropriate and explicit sexual comments to several female students at Carter- Parramore Middle School. The Department of Health and Rehabilitative Services has also completed its investigation and has advised me that based on its investigation and interviews with the victims, their statements regarding your comments verify the allegations of sexual exploitation. Such behavior is violative of Gadsden County School Board rules. This determination by Bryant was based on the "information" he was given in the "final report" prepared by Pace and on the HRS letter. Bryant was unable to articulate the bases for his determination, but that is not surprising when the origin and nature of the "information" he considered is examined. The three men who gathered the information were Cecil Morris, the school resource officer employed by the Gadsden County Sheriff's Office; Rocky Pace, the principal at Carter-Parramore; and James W. Brown, Jr., the assistant superintendent for administrative services. According to Bryant, he was given a "final report" from Pace in a letter dated February 7, 1992, (Exhibit 4) with attachments: Pace's letter to Brown dated January 28, 1992, (Exhibit 5); a case report filed by Lt. Morris (Exhibits 9a and 9b); and a letter of reprimand to Davis from Pace (Exhibit 3). In that letter Pace advised that he had a tape of the interviews of Tomeka, Tiesha, a girl named Aquiana Delapierre, and Davis, however, Pace did not give Bryant the tape until sometime in March, 1992, when Bryant asked for it. Bryant never listened to the tape, but instead read written statements from the girls. No one was able to establish where these written statements came from or how they came to be in Bryant's possession. They first appeared in Lt. Morris' case file when he opened it to prepare for a deposition on July 2, 1992. He doesn't know where they came from or who took them. Pace knew nothing about the statements and did not give them to Bryant. Brown also had no knowledge of the statements. Ironically, there was no written statement from Davis. Bryant says he made his determination based on these written statements which he assumed contained the same information as the tape which he never heard. Bryant did not identify any information which he reviewed that set forth Davis' version of the event. The case report prepared by Lt. Morris contained a brief summary of the accusations made by Tomeka and Tiesha, but Morris apparently never even talked to Davis. In fact, from the testimony of Pace, Morris, and Brown, it cannot even be determined whether any investigation was ever done. Morris talked to Tomeka and Tiesha briefly and then took them to Pace. Pace taped statements from Tomeka and Tiesha and Davis. Morris was in and out of the room during the taping of statements from Tomeka and Tiesha, but he did not hear much of what they said. Brown then came to the school and again talked briefly to Cheryl Roberts because he knew her parents and to some other girls, but he doesn't remember their names. Morris had no investigatory responsibilities in the matter. Pace did no further investigation after he took the taped statements because Brown came to the school and Pace was informed that Bryant had put Brown in charge of the investigation. Brown says he was not in charge of the investigation, but had told Pace to do a thorough investigation and then report his findings to Bryant. The only conclusion that can be drawn is that none of these men did any investigation beyond the interviews conducted on January 28 and 29, 1992. The letter from Pace to Bryant (Exhibit 4), which Bryant calls the "final report," clearly states that Pace thought the investigation was still on going and that action beyond the letter of reprimand (Exhibit 3) may have been warranted at a later date. However the only continuing action involved that of HRS in its abuse investigation, which resulted in a letter which advised that no touching or unbuttoning had occurred. Bryant's accusations against Davis were limited to allegations of explicit and inappropriate sexual comments. These reasons given for the suspension and recommended termination must have been based almost entirely on the letter from Mather at HRS since there was so little competent and probative information considered by Bryant. However, the statements made by Mather in his letter are insufficient to show whether HRS actually took any action against Davis in this matter and no evidence was presented to show whether any such action was taken. Since Bryant never reviewed any statement by Davis regarding his version of the events, Bryant never knew that Davis' words and actions in trying to get the girls to go to their class and to get Tomeka to straighten and button her clothes were routine for Davis. From the time Davis was assigned to Carter-Parramore in 1988 until March 18, 1991, a Mr. White had been the principal at that school. White had asked Davis to assist in keeping order at the school and had authorized Davis to open the gym on cold mornings at around 7:15 a.m. so that early-arriving students could be warm. At times, Davis was the only Board employee on campus and he was to remain in the gym to keep order until other adults arrived. White also used Davis' assistance to break up fights and control campus access by non- students during the school day. With White's knowledge and consent, Davis also directed students to go to class when they were not where they were supposed to be, to straighten up their attire or behavior, and to stay in school and not skip class. Mr. White died unexpectedly in March, 1991, and Pace became the acting principal and ultimately the principal. Pace knew of all these activities by Davis and never told him to restrict himself to duties directly related to his job as head custodian. Pace acknowledges that Davis was friendly and interacted with students and pitched in wherever he was needed. It was entirely consistent with these acknowledged activities of Davis that he would stop two students who were outside after the sixth period bell had rung, would direct them to go to class and would insist that one of them straighten her clothing which was unbuttoned and allowed her breasts to be seen. Finally, the alleged matter involving Aquiana Delapierre must be examined. Aquiana made an allegation against Davis that he said he "wanted some" from her also. Aquiana was subpoenaed to testify at the hearing but she failed to appear. All other documentation of these allegations constitutes hearsay and absent her live testimony, that hearsay cannot form the basis for any findings of fact. Exhibit 9a is the report prepared by Lt. Morris regarding Aquiana's allegations. It is insufficient to support a finding about the alleged incident. Davis was employed pursuant to an annual contract. His contract had been renewed yearly for the preceding eighteen years. Davis had always received satisfactory job ratings. Because of the recommended termination and Davis' suspension in March, 1992, no recommendation or action was taken to renew his annual contract for the 1992-93 school year. Davis' contract for the 1991-92 school year expired on June 30, 1992. Davis has no statutory entitlement to renewal of his contract, but no evidence was presented to show any reason why his annual contract would not have been renewed but for this case. Further, Davis' position has not been filled by another employee. The clear fact is that Davis' contract would have been renewed but for these wrongful allegations and this action which followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Gadsden County enter a Final Order and therein: Award to Charlie C. Davis back pay for the period from March 25, 1992, until the expiration of his annual contract. Reinstate Charlie C. Davis to his position as head custodian at Carter- Parramore Middle School and renew his annual contract for that position for the entire 1992-1993 school year. Award to Davis back pay for the period covered by the annual contract for 1992-1993 during which has not been working or being paid. Deny the request for Davis' attorney's fees and costs necessitated for his defense against the suspension and termination on March 25, 1992. DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2375 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Gadsden County School Board 1. Proposed findings of fact 1-7, 10-14, 16, 17, 19, 21, 22, 24, 25, 27, 29-35, and 38-41 are subordinate to the facts actually found in this Recommended Order. 2. Proposed findings of fact 18, 20, 26 and 37 are irrelevant to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Charlie C. Davis Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5. Proposed findings of fact 6-18 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 9, 15, 23, 28, and 36 are unsupported by the credible, competent and substantive evidence. COPIES FURNISHED: Robert H. Bryant, Superintendent Gadsden County School Board Post Office Box 818 Quincy, FL 32351 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400 Deborah J. Stephens Attorney at Law The Ausley Law Firm 227 South Calhoun Street Tallahassee, FL 32302 David Brooks Kundin Attorney at Law Dobson & Kundin, P.A. Post Office Box 430 Tallahassee, FL 32302
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, 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. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of December, 2008.
