The Issue The issue in this case is whether just cause exists to terminate Respondent, Kathleen P. Cole's ("Cole"), employment with Petitioner, Pinellas County School Board (the "Board"), based on Cole's repeated and chronic tardiness, or conversely, whether Cole's tardiness is excused by a medical condition.
Findings Of Fact The Board is the governing body responsible for hiring, firing, and overseeing all employees in the Pinellas County school district. Specifically, the Board has responsibility for administrative duties of the School. At all times relevant hereto, Cole was an ESE teacher at the School. Before beginning work at the School in the 2005-2006 school year, Cole had taught school in North Carolina for eight years. Cole was granted a Professional Service Contract by the Board on June 10, 2008. Cole's classroom at the School was a self-contained classroom located apart from the main buildings of the School during 2007-2008 school year, the first year at issue in this proceeding. She had one paraprofessional assistant, referred to as an "associate" by the Board, during that school year. During the 2009-1010 school year, Cole's classroom was located in a pod, i.e., within the main buildings of the School. She had one associate that year. In the 2010-2011 school year, Cole was again located in a pod; she had one full-time associate and one part-time associate. The part-time associate was assigned to one particular special needs student. There were no significant problems with Cole's attendance or punctuality during her first two years of employment at the School. During the 2007-2008 school year, Hill, the assistant principal at that time, began to get word that Cole was missing meetings and coming to work late. Hill began to keep an eye on Cole so as to confirm or refute the allegations she had heard about Cole. Pursuant to her investigation, Hill determined that Cole was coming in to work late frequently. Further, Hill found that Cole was either not attending meetings or leaving meetings early without providing any excuse. Hill met with Cole, and Cole frankly admitted that she was having difficulty arriving at school on time each day. Cole said the reason for her tardiness was a medical condition, but the particular condition was not made known to Hill at that time. The school day for students in the 2008-2009 school year began at 8:50 a.m. Students were allowed to come onto the School campus 30 minutes prior to the start of the school day, i.e., at 8:20 a.m. All teachers were expected to be at school by 8:20 a.m., each day so that they could supervise the children. Supervision was especially important for ESE students. In Cole's own words, it is important that a classroom teacher be with her students from the time they arrive at school. She said that was "[f]or safety, for consistency, for the continuance of instruction. [Students] need to see the routine and that every day is predictable." See Transcript, page 192. In the 2009-2010 school year, the start time for classes was changed to 8:35 a.m., with students being allowed to come on campus at 8:05 a.m. Teachers were, therefore, required to be on campus beginning at 8:05 a.m. in order to supervise the students. At the beginning of the 2008-2009 school year, the principal met with Cole to discuss the tardiness and attendance issues. Cole apologized for her lack of improvement in this area, but said that she had some medical issues, including anxiety, that she was working on. Principal Hughes provided Cole with a copy of a brochure for a program offered to all school employees. The program provided assistance to teachers in the realm of time management. Cole said she was already familiar with the program and had made an appointment to attend a program meeting the following week. An informal "success plan" was developed by Cole and Hughes to assist Cole with her problem. The plan included a requirement that Cole sign in at the front office each day when she arrived so that her punctuality could be recorded. The plan also required Cole to be at school at a specific time each day. Cole's tardiness did not improve, so Hughes scheduled a formal conference with Cole on January 8, 2009. Hill, as assistant principal, also attended the conference. According to the written summary of the conference, Cole had stopped signing in regularly at the front office in October, even though the process had worked well up until that time. After December 5, 2009, Cole had not signed in at all. After some discussion, another success plan was created. The new success plan again set forth the requirements for Cole's attendance at meetings and timely arrival at school.1/ The plan addressed the areas of concern and provided steps that would be taken to rectify the problem areas. The plan was signed by Cole, Hughes, and Hill on January 12, 2009. The conference summary clearly advised Cole of the seriousness of the situation and the need to closely follow the success plan. The 2008-2009 school year ended without any further formal action taken by the School concerning Cole's tardiness. However, the associate in Cole's room said that Cole was constantly tardy even after the January 12, 2009, meeting. She did not, however, report the tardiness to School administration. Hill became the principal at the School commencing with the 2009-2010 school year. Hill soon realized that Cole's tardiness had not gotten any better and determined that something more had to be done to remedy the situation. Hill set up sign-in sheets for all teachers in an effort to make it more comfortable for Cole to sign in each day. Hill gave Cole her (Hill's) personal cell phone numbers so that Cole could contact Hill when Cole was going to be late. No other teachers were provided with Hills's phone numbers, but Hill was trying to find a way to make sure that Cole's students would have proper supervision if Cole was going to be late. Hill then began to document Cole's arrival time so that she could determine whether there was any improvement. She used other teachers and employees to help her keep track of Cole's arrival time. By December, Hill decided that Cole's tardiness had to be addressed more formally. She convened a meeting including herself, Cole, a union representative, and the assistant principal. During the meeting she reiterated the need for Cole to arrive on time and to find a way to remedy her problem. Hill reviewed Cole's conduct over the past several weeks and, for the first time, expressed an understanding of Cole's medical claim, i.e., that she had Attention Deficit Disorder ("ADD"). Cole advised Hill that she had a note from a physician indicating she had the condition, and Hill advised Cole to submit the note to the Office of Equal Opportunity ("EEO") so that they could investigate possible accommodations. At the meeting, the participants discussed Cole's seeming inability to comply with strict requirements for teachers' attendance at school. Two days after the meeting, Hill issued a Letter of Caution to Cole, recapping some of the discussion from the meeting. The letter constituted a formal demand that Cole begin to comply with the normal work day requirements for all teachers. The letter was signed and acknowledged by Cole on December 4, 2009. By that date, Hill had begun to document Cole's tardiness on a school calendar. It is clear that Cole was late almost 50 percent of the school days in the 2009-2010 school year. Conversely, Cole worked late quite frequently during that school year. Her husband said he often had to call her at night to remind her to come home. Cole eventually asked the School for some accommodations to help her with her ADD condition. She asked to be moved from an interior room in the pod formation to an exterior room so that she would have fewer distractions. Hill granted the request, even though she believed the real purpose of the move was to allow Cole to slip into an exterior door when she was late, rather than pass through another teacher's area. Cole also asked that furniture be rearranged, desks and bookshelves replaced, and other classroom changes. For some reason, Cole frequently rearranged her classroom furniture. Hill did not know exactly how these actions constituted an "accommodation," but was willing to try anything to get Cole to arrive at school timely. Cole also asked for some flexibility as to her arrival time. Hill granted her some "flex time" in that regard, but it appears to be the same flex time afforded all teachers. That is, students would start arriving on campus at 7:35 a.m., but some teachers who requested it were afforded the opportunity not to show up until 8:05 a.m., under the flex time policy. Meanwhile, Cole asked the EEO to allow her other accommodations, including: 1) Altering the start time for her students to report to school; 2) Guaranteeing that Cole would always be in a self-contained classroom, i.e., a portable; and Granting flex time that would allow Cole to report to work late at times. The EEO acknowledged that Cole had a "medical condition that limits one or more major life activities under [the Americans with Disabilities Act]." Cole's physician also said that Cole was "limited in major life activities of working and learning" and also that she would "experience difficulty in the working environment when interrupted." EEO recommended that Cole follow the directions of her physician, participate in psychotherapy, and take the appropriate medication to treat her condition. Cole seemed to have good rapport with her students or, at least, with their parents. A parent testified at final hearing that her child would not have progressed as well as he did without Cole's diligence and attention to her son's needs. Hill and others observed Cole interacting well with her students on many occasions and deemed Cole a good classroom teacher. Cole's associates, however, thought that Cole did not seem to be as connected to her students as other teachers were to their students. For example, Cole did not take the students to the lunchroom, gym class, or other activities outside the classroom. Rather, she left that task to the associate. Also, Cole did not provide her associates with written lesson plans or a schedule of activities. When Cole was absent--or tardy--the associates would simply find ways to keep the students occupied. One of her associates, Moschberger, asked for a transfer out of Cole's room during the 2010-2011 school year, but Cole was dismissed in October 2010, making the request moot. At the end of the 2009-2010 school year, Hill became more concerned about Cole's repeated and chronic tardiness, so she asked James Lott, the administrator of the Office of Professional Standards, to get involved. Lott attempted to schedule a meeting with Cole, but a conflict arose on the proposed date. Lott rescheduled the meeting, but issues with Cole's union representatives caused the meeting to be cancelled. Lott made an assumption that Cole was attempting to avoid the meeting, so he placed Cole on paid administrative leave until such time as the meeting could be held. The dates of the paid administrative leave were the final four days of the 2009-2010 school year, meaning that Cole missed the "moving on" ceremony for her students. A meeting was ultimately held, resulting in Cole's being issued a Letter of Reprimand dated July 12, 2010. The letter advised Cole that failure to comply with the school schedule might result in disciplinary action including, but not limited to, suspension without pay or a recommendation for termination of employment. Almost immediately upon the start of the 2010-2011 school year, Cole came to school late. On the second day of that school year, Hill emailed Lott to vent her frustration that Cole was already tardy. Further, Hill complained that Cole left the faculty meeting and other training sessions without any explanation. Cole also failed to attend important committee meetings and mandatory ESE meetings, which were used to discuss important issues for the new school year. A couple of weeks into the new school year, Cole allegedly cancelled her Open House, a "meet and greet" event to allow parents to meet their children's new teachers. Each teacher was expected to host such an event on a specified night. Cole says she was at the Open House for her classroom, even though she had laryngitis and a fever. Hill, however, had seen Cole on a video camera as she was leaving the School prior to commencement of the event. There was no completely persuasive evidence presented at final hearing to establish whether the Open House occurred or not, but that fact is not dispositive of the recommendation made herein. As the 2010-2011 school year progressed, Hill continued to keep a calendar of Cole's attendance. Cole was late 23 of 44 days before the School decided to take action. On October 21, 2010, the School placed Cole on paid administrative leave pending further action by the Board. Cole was then offered the opportunity to return to a classroom by taking a position at Sexton Elementary School. However, inasmuch as Sexton Elementary was some 45 minutes drive time from Cole's home and knowing that she was already having a problem getting to work on time, Cole refused the offer. She considered it a recipe for failure, not an opportunity to start anew. The Board met on December 7, 2010, and considered a recommendation from the superintendent that Cole's employment with the School be terminated. Cole was asked directly by the School how it might accommodate her or help her to be successful at the School. Cole said that she wanted the following: A little flexibility; To be treated like the rest of the teachers at the School; Some acknowledgement of her positive changes; and Not to be punished for being late. It appears from the record that the School has given Cole some flexibility--it allowed her to arrive later than other teachers were required to arrive. The School treated Cole like other similarly situated teachers. At one point, the School had all teachers signing in each morning as an accommodation to Cole, even though others were not having tardiness problems. Cole's annual performance appraisals, along with comments from her principal, indicate that Cole's accomplishments are recognized. As to not punishing her for being late, there is no reasonable rationale for that request. Even Cole admits that it is important for teachers to be in the classroom the entire school day, every day. No testimony was provided by Cole or her medical professional as to whether Cole would be any more apt to be on time should her schedule be altered. That is, if she was allowed to come to school a half-hour later than other teachers, there is no reason to believe she would meet that requirement. According to Cole's own testimony, she has always had an issue with timeliness, and admitted, "the harder I try, the worse I get." According to Cole's medical professional, Cole would not be likely to meet the attendance requirement of her job, an essential function for teachers. She would be "unable to report to work" in a substantive way, i.e., by being late at times. The medical professional further appraised Cole's prognosis as only "fair to good." However, she believes that Cole may be able to function in a teaching environment if certain accommodations were made. There was no persuasive testimony at final hearing as to what time could be established for Cole's arrival at school that would work as an accommodation for her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pinellas County School Board, upholding the termination of Respondent, Kathleen P. Cole's, employment for the reasons set forth above. DONE AND ENTERED this 15th day of June, 2011, in Tallahassee, Leon County, Florida. 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 15th day of June, 2011.
The Issue The issue for determination is whether Respondent should be suspended, without pay, and terminated from all employment with Petitioner for the offenses set forth in the Notice of Specific Charges.
Findings Of Fact No dispute exists that, at all times material hereto, Ms. Hankerson was an instructional employee with the School Board. Ms. Hankerson has been a teacher with the School Board for 11 years, beginning as a teacher with the School Board in 2000. She was first assigned to Renick Education Center. Subsequently, Ms. Hankerson was transferred to Barbara Goleman High School (Goleman) in Miami Lakes, Florida. During the 2009-2010 school year, she taught science to exceptional student education (ESE) students at Goleman. At the beginning of the 2010-2011 school year, Ms. Hankerson was advised that her department was being eliminated and that she needed to find another school at which to work if she desired to continue her employment with the School Board. She sought other schools and received an email from Howard McMillan Middle School (McMillan) to come for an interview. She accepted a teaching position at McMillan, effective September 20, 2010. While working at Goleman in Miami Lakes, Florida, Ms. Hankerson resided in Miami Shores, Florida. Her residence was in close proximity to Goleman. She had three children and was able to get her children to school and report to Goleman in a timely manner throughout her tenure at Goleman. Ms. Hankerson's travel time to McMillan was significantly greater than to Goleman due to McMillan being located further south than Goleman.2 During the 2010-2011 school year, all teachers at McMillan were required to report to work at 8:30 a.m. Professional meetings, which consisted of team meetings and department meetings, were held from 8:30 a.m. until 9:00 a.m. Team meetings were held three days a week. Department meetings were held two days a week, where teachers meet by department to discuss curricular activities and requirements. Faculty meetings were held every other Tuesdays, and, when faculty meetings occurred, no professional meetings were held because the faculty meetings replaced the professional meetings. At 9:00 a.m., teachers went to their respective classroom to meet their students, who began arriving at 9:00 a.m. Instruction began at 9:10 a.m., with homeroom followed by advisement, where the Comprehensive Research Reading Plan was implemented, and ended at 9:46 a.m. First period began at 9:56 a.m. School ended at 3:50 p.m. Ms. Hankerson was assigned a homeroom class. The students in her classroom consisted of eighth grade students, who were not performing at grade level in reading and were FCAT Level 1 students in reading. Ms. Hankerson's first period (Period 1) was a seventh grade civics class. Her students consisted of ESE students, with varying exceptionalities. She was the sole teacher. Ms. Hankerson was a co-teacher for four periods of the remaining school day, teaching science. The students for the four periods consisted of general education students and ESE students. Ms. Hankerson was the ESE teacher, and the other teacher was the general education teacher, who generally took the lead in the classroom. The second period (Period 2) was a seventh grade science class; the third period (Period 3) was an eighth grade science class; the fourth period (Period 4) was a sixth grade science class; and the sixth period (Period 6) was a seventh grade science class. Her fifth period (Period 5) was a planning period. No dispute exists that Ms. Hankerson's employment with the School Board is subject to, among other things, a professional service contract, a collective bargaining agreement (Agreement) between the School Board and the United Teachers of Dade (UTD), and policies and procedures of the School Board. School Board Policy and the Agreement provide teachers with one sick day of leave every month. At the beginning of each school year, each teacher is given, up front, four days of sick leave that the teacher can use. However, the accrual of sick leave is one sick leave day per month for the ten-month period that a teacher is employed with the School Board, totaling ten sick days of leave. During the ten-month period, if a teacher takes leave exceeding the ten days and does not have leave that is "banked," which is leave that is carried over from one school year to the next, it results in leave without pay, unauthorized. In a medical situation, if a teacher knows that he or she will be absent for an extended period of time, the teacher would apply for leave. If the absence will be over 30 days, the teacher would apply for medical leave and can use leave that is banked. However, if no leave is banked, it results in leave without pay, unauthorized. If a teacher is going to be absent from work, the teacher is required to call into a dedicated-absence telephone line at least one hour before the start of the workday. On the day that the teacher is absent, the teacher is also required to call his or her school 30 minutes prior to the scheduled student dismissal time, indicating whether he or she will report to work on the next workday in order for the school to make arrangements for a substitute teacher. A teacher, who is absent without prior approval, is deemed to have been willfully absent without leave, except in a situation of sudden illness or an emergency situation. Immediately upon beginning at McMillan, Ms. Hankerson began arriving late and using her sick days. Eight days after beginning at McMillan, on September 28, 2010, she took a sick leave day; on October 1, 2010, she took one day of leave without pay, unauthorized; and on October 13 and 19, 2010, she took one sick leave day and one-half sick leave day, respectively. On October 21, 2010, while she was at McMillan, allegations, unrelated to the instant case, involving inappropriate conduct and remarks were made against Ms. Hankerson. Effective October 22, 2010, she was removed from McMillan and placed at the School Board's Region office, pending an investigation. A substitute teacher was hired to take over Ms. Hankerson's classes. The allegations were referred for investigation to the School Board's Civilian Investigative Unit. Ms. Hankerson was assigned to the Region office from October 22, 2010, through February 22, 2011. While at the Region office, Ms. Hankerson continued her pattern of absences. Between October 22, 2010, and February 22, 2011, she accumulated an additional 18 days of absences: five and one-half days of leave without pay, unauthorized; seven days of leave without pay, authorized; and five and one-half days of sick leave. The investigation into the allegations was concluded. At a Conference-For-The-Record (CFR) held by the School Board's Office of Professional Standards (OPS) on November 29, 2010, memorialized in a Summary of CFR dated December 3, 2010, Ms. Handerson was advised that probable cause existed for violations of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4A-1.213, Code of Ethics. At the CFR, the OPS provided her with a copy of the School Board rules; The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; and a document titled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." Additionally, the OPS issued her directives, including adhere to all the School Board's rules and regulations; and comport, both at the workplace and in the community, in a manner that reflects credit upon herself and the School Board. By letter dated February 10, 2011, Ms. Hankerson was notified that the School Board had taken action, at its meeting on February 9, 2011, to suspend her without pay for five workdays from February 10, 2011, through February 16, 2011. Further, the letter notified her to report to work at McMillan on February 17, 2011. However, Ms. Hankerson did not serve the suspension from February 10, 2011, through February 16, 2011. The suspension was rescheduled to February 22 through 28, 2011, with her return to McMillan on March 1, 2011. Having served her suspension on February 22 through 28, 2011, Ms. Hankerson failed to return to McMillan on March 1, 2011. Moreover, she failed to call the dedicated absence telephone line at McMillan, the Absence Reporting System (ARS), one hour prior to the workday on March 1, 2011, to state that she would not report to work that day; and failed to call 30 minutes before the scheduled student dismissal on March 1, 2011, to state whether she would report to work on March 2, 2011. On March 2, 2011, Ms. Hankerson reported to McMillan for work and, also, reported ten minutes late, at 8:40 a.m. That same morning, McMillan's principal, Hilca Thomas, met with Ms. Hankerson and advised her that she (Ms. Hankerson) was required to report to work on March 1, 2011, not March 2, 2011; and that March 1, 2011, would be reported as leave without pay, unauthorized. Ms. Hankerson blamed the arrival on March 2, 2011, instead of March 1, 2011, on a miscommunication between her and the UTD representative. Further, Ms. Thomas reminded Ms. Hankerson of the hours of work and the attendance procedures, including communicating absences using the ARS. Ms. Hankerson stated that she would "not make it in at 8:30"; that she would "be late almost every morning because of [her] children and [she] live[s] far [away]"; and that being late was "unavoidable." Additionally, Ms. Thomas advised Ms. Hankerson that her (Ms. Hankerson's) undergarment was exposed and that she was not wearing appropriate attire. Ms. Hankerson abruptly left Ms. Thomas' office stating that she was going to UTD's office downtown. Shortly thereafter, around 9:15 a.m., Ms. Henderson returned to Ms. Thomas' office, but a substitute teacher was already deployed to Ms. Hankerson's classroom. As a result, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) could leave for the day and directed Ms. Hankerson to report back to McMillan for work on March 3, 2011. The events on March 2, 2011, were memorialized in a memorandum from Ms. Thomas to Ms. Hankerson on that same date. Ms. Hankerson acknowledged receiving a copy of the memorandum. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas to report to work at 8:30 a.m. and to follow the procedures for absences were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson failed to report to work at McMillan on March 3, 2011. Also, she failed to report to work on March 4, 2011. Both days were reported as leave without pay, unauthorized. Ms. Hankerson reported to work at McMillan on March 7, 2011, the next school day, at which time she was issued an Absence from Worksite Directive by Ms. Thomas. The Absence from Worksite Directive advised Ms. Hankerson, among other things, that attendance and punctuality were essential functions of her job and that, since September 20, 2010, she had accumulated 25.5 absences.3 The absences were reflected as four absences within her first month at McMillan (September 20 through October 22, 2010); 17.5 absences when she was assigned to the Region office during the investigation; and four absences when she was to report back to McMillan between March 1 and 4, 2011. Additionally, the Absence from Worksite Directive instructed Ms. Hankerson on the proper procedures to obtain authorized leave of absence. She had failed to avail herself of the proper procedures to obtain authorized leave of absence. Further, the Absence from Worksite Directive advised Ms. Hankerson that her noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. On March 7, 2011, Ms. Hankerson acknowledged receiving the Absence from Worksite Directive by signing the document. The evidence demonstrates that the directives issued to Ms. Hankerson by Ms. Thomas in the Absence from Worksite Directive were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to issue the directives. Ms. Hankerson failed to abide by and comply with the directives. On March 10, 2011, three days after receiving the Absence from Worksite Directive, Ms. Hankerson arrived at McMillan late, 9:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and reminded her (Ms. Hankerson) of the directives. Additionally, Ms. Thomas advised Ms. Hankerson that she (Ms. Hankerson) was inappropriately dressed. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On March 11, 2011, Ms. Hankerson arrived at McMillan late, 8:50 a.m. Ms. Thomas met with Ms. Hankerson on the same day of the tardiness and advised her (Ms. Hankerson) that, because she (Ms. Hankerson) had failed to call-in to the ARS, a substitute had been hired for the day. Ms. Thompson reported the absence as one day leave without pay, unauthorized. On March 21, 2011, Ms. Hankerson failed to report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on March 22, 2011, and, as a result, Ms. Thomas hired a substitute for March 22, 2011. Ms. Thomas met with Ms. Hankerson on March 22, 2011, and reviewed the absence with her (Ms. Hankerson); reported Ms. Hankerson's absence as unauthorized; and advised Ms. Hankerson that a substitute was hired for the day. Ms. Thompson reported each absence as one-day leave without pay, unauthorized. On March 29, 2011, Ms. Hankerson left McMillan approximately an hour early, at 2:45 p.m., without prior approval and without signing-out. Also, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, March 30, 2011, Ms. Hankerson did not report to McMillan. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, March 31, 2011, Ms. Hankerson left McMillan approximately 30 minutes early, at 3:20 p.m., without prior approval and without signing-out. Additionally, she failed to attend her class at Period 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. The next day, April 1, 2011, Ms. Hankerson left McMillan at 12:30 p.m., without prior approval and without signing-out. Also, she failed to attend her classes at Periods 4 and 6. Ms. Thompson reported the absence as a half-day leave without pay, unauthorized. On April 4, 2011, Ms. Hankerson left McMillan at 10:47 a.m., without prior approval and without signing-out. Ms. Thompson reported the absence as one day leave without pay, unauthorized. The following day, April 5, 2011, Ms. Hankerson arrived at McMillan a little over one-half hour late, at 9:03 a.m. Ms. Thomas met with Ms. Hankerson, regarding the attendance, and informed her (Ms. Hankerson's) that the early departures from McMillan would be reported as leave without pay, unauthorized. Further, Ms. Thomas provided Ms. Hankerson with notification of a CFR to be held on April 8, 2011. The next day, April 6, 2011, Ms. Hankerson did not report to McMillan. Additionally, she failed to call-in to the ARS to state whether she would be reporting to work on April 7, 2011, and, as a result, Ms. Thomas hired a substitute for April 7, 2011. The CFR on April 8, 2011, was scheduled for 3:00 p.m. Even though Ms. Hankerson had reported to McMillan for the workday, she did not appear at the CFR at the scheduled time. When an "all call" was made over the public address system for her at 3:20 p.m., Ms. Hankerson responded and was informed that should report to the CFR. However, she did not arrive at the CFR until 3:49 p.m. and informed Ms. Thomas, among other things, that the CFR should proceed without her (Ms. Hankerson) because her (Ms. Hankerson's) children were home alone and she (Ms. Hankerson) was leaving at 3:50 p.m., the end of the workday. Ms. Hankerson left, and the CFR proceeded without her. The attendees at the CFR included Ms. Thomas; the assistant principal; and the UTD Representative. The purpose of the CFR was to address Ms. Hankerson's insubordination regarding previously issued attendance directives, and her noncompliance to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13- 4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; and to review her record and future employment status with the School Board. A Summary of the CFR was prepared by Ms. Thomas on April 18, 2011. The Summary for the CFR included a delineation of Ms. Hankerson's absences, reflecting that, since the issuance of the Absence of Worksite Directive on March 7, 2011, through April 15, 2011, Ms. Hankerson had accumulated one-half day absence of leave without pay, authorized; 10.5 days absence of leave without pay, unauthorized; one temporary duty day; and one personal day.4 Furthermore, the Summary for the CFR reflected that, as of April 15, 2011, for the 2010-2011 school year, Ms. Hankerson had accumulated a total of 46 absences.5 The Summary for the CFR contained directives to Ms. Hankerson. The directives included: adherence to School Board rules 6Gx13-4E-1.01, Absences and Leaves, 6Gx13-4A-1.213, Code of Ethics, 6Gx13-4A-1.21, Responsibilities and Duties; to report to work and depart from work daily at the scheduled hours; be in regular attendance at the worksite and on time; adhere to attendance directives previously issued; communicate any intent to be absent directly to the principal and by calling the ARS; the reporting of future absences will be leave without pay, unauthorized, unless documentation showing qualification under the Family Medical Leave Act (FMLA) or other leave of absence is provided; and for imminent absences, leave must be requested and procedures for School Board approved leave implemented, and the FMLA or Americans with Disabilities Act (ADA) requirements, if applicable, must be complied with. Ms. Hankerson was advised that failure to comply with the directives would lead to further review for disciplinary action and would be considered gross insubordination. Further, the Summary for the CFR advised Ms. Hankerson that she would be issued a letter of reprimand. Ms. Hankerson acknowledged receipt of the Summary for the CFR on April 18, 2011, by signing the Summary for the CFR. The evidence demonstrates that the directives to Ms. Hankerson from Ms. Thomas at the CFR and the Summary for the CFR were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. On April 18, 2011, Ms. Thomas issued Ms. Hankerson a Reprimand. The Reprimand was based on Ms. Hankerson's failure to comply with the previous directive issued to Ms. Hankerson regarding attendance and professional responsibilities. Additionally, the Reprimand advised Ms. Hankerson that any recurrence of the noncompliance might lead to disciplinary action and would be considered gross insubordination. Ms. Hankerson acknowledged receipt of the Reprimand on April 18, 2011, by signing the Reprimand. Ms. Hankerson failed to comply with the directives issued in the Summary for the CFR. On the same day of the Reprimand, April 18, 2011, Ms. Hankerson was absent one-half day, reported as leave without pay, unauthorized. Two days thereafter, she was absent for three consecutive days, April 20 through 22, 2011, each day being reported as leave without pay, unauthorized. Having worked the next school day, April 25, 2011, Ms. Hankerson was absent one-half day on April 26, 2011, reported as leave without pay, unauthorized; absent one-half day on April 27, 2011, reported as leave without pay, unauthorized; and absent one day on April 28, 2011, reported as leave without pay, unauthorized. Additionally, she was tardy for work on April 27, 2011. From April 18 through 28, 2011, she had a total of five and one-half absences. Due to these recent absences and tardiness, on April 28, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences and tardiness were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be absent, tardy, and insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on April 18, 2011, by signing it. The evidence demonstrates that the re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. Ms. Hankerson's absences, tardiness, and early departures continued. On May 2 through 4, 2011, she was absent one day each date; May 5, 6, and 13, 2011, she was absent one- half day each date; and May 16, 2011, she was absent one day; totaling five and one-half days of absences, which were reported as leave without pay, unauthorized. Also, Ms. Hankerson was tardy seven times, on May 5, 6, 10 through 13, and 17, 2011, which were unauthorized. Additionally, she departed McMillan early two times, on May 6 and 13, 2011, which were unauthorized. Due to these recent absences, tardiness, and early departures, on May 17, 2011, Ms. Thomas issued Ms. Hankerson a Continued Failure to Comply with Re-Issued Directives memorandum. The absences, tardiness, and early departures were listed in the memorandum, and Ms. Hankerson was advised that the absences were reported as leave without pay, unauthorized. Further, Ms. Hankerson was advised that she had continued to be insubordinate; that her continued failure to comply with the reissued directives resulted in gross insubordination; and that, therefore, the memorandum would be forwarded to OPS for gross insubordination and further disciplinary action. She acknowledged receipt of the Continued Failure to Comply with Re- Issued Directives memorandum on May 17, 2011, by signing it. The evidence demonstrates that the second re-issued directives to Ms. Hankerson from Ms. Thomas were reasonable. Further, the evidence demonstrates that Ms. Thomas had the authority to give the directives. At the time of the Continued Failure to Comply with Re-Issued Directives memorandum on May 17, 2011, Ms. Hankerson had accumulated 57 absences. Additionally, she had multiple instances of tardiness and early departures. A CFR was held by OPS. Persons in attendance included the Director of OPS; Ms. Thomas; and Ms. Hankerson and her UTD Representative. At the CFR, Ms. Hankerson was provided an opportunity to respond. OPS recommended termination of Ms. Hankerson's employment for gross insubordination and violation of School Board's rules concerning Responsibilities and Duties, Code of Ethics, and Absences and Leaves. After the CFR at OPS, Ms. Hankerson reported for work at McMillan only on June 7, 2011, and June 9, 2011, which was the last day of the 2010-2011 school year. On June 9, 2011, she arrived late, signed-in, and left McMillan shortly thereafter, not remaining at work the entire time set-aside for the last day. From the time that she began at McMillan until the time of the recommendation by OPS, Ms. Hankerson had accumulated 57 absences during the 2010-2011 school year. Of the 57 absences, 18.5 absences occurred during the time that she was assigned to the Region office, not in the classroom. Ms. Hankerson's absences and tardiness negatively impacted the role of Ms. Thomas as the principal and leader of McMillan. Often times, due to Ms. Hankerson's tardiness, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until Ms. Hankerson arrived. Additionally, when Ms. Thomas had no notice that Ms. Hankerson would be absent, Ms. Thomas had no choice but to take over Ms. Hankerson's homeroom class until a substitute, who had to contacted at the last minute because of no prior notice, arrived; and when she (Ms. Thomas) was unable to do so, she (Ms. Thomas) had to find another teacher to cover the homeroom class until the substitute arrived. As a result of the recommendation of OPS, the Superintendent recommended to the School Board the suspension, without pay, and termination of the employment of Ms. Hankerson. At its regularly scheduled meeting held on June 15, 2011, the School Board took action to suspend, without pay, Ms. Hankerson and initiate dismissal proceedings against her from all employment for just cause, including, but not limited to: misconduct in office; gross insubordination; attendance-to-date; and violation of School Board rules 6Gx13-4A-1.21, Responsibilities and Duties, 6Gx13-4A-1.213, Code of Ethics, and 6Gx13-4E-1.01, Absences and Leaves. Ms. Hankerson does not refute the absences, the tardiness, or the early departures. For the instances of tardiness, Ms. Hankerson testified at hearing that she would call-in before 8:30 a.m. and state that she was en-route and would be late. The School Board did not refute her assertion. Despite her calling-in, Ms. Hankerson admitted that Ms. Thomas did not tolerate her (Ms. Hankerson's) tardiness and took the action previously mentioned. Ms. Hankerson's testimony is found to be credible. On March 2, 2011, Ms. Hankerson informed Ms. Thomas that arriving late for work at McMillan was unavoidable because she (Ms. Hankerson) took her (Ms. Hankerson's) children to school and she (Ms. Hankerson) lived so far away from McMillan. Additionally, around April 2011, Ms. Hankerson informed Ms. Thomas that she (Ms. Hankerson) was going through a divorce. At hearing, Ms. Hankerson testified that, during March, April, May, and June 2011, she was having marital problems and living sometimes at home and sometimes with her mother in Fort Lauderdale, Florida, which was approximately 28 miles from McMillan. Ms. Hankerson took her children to school, but, when she lived with her mother, she would not leave them at their school in the mornings alone if it was dark. She testified further that she was being investigated by the Department of Children and Families regarding allegations of neglect and being an unfit mother. Additionally, she testified that she was having financial problems. Ms. Hankerson's testimony is found to be credible. However, she did not provide these details to Ms. Thomas. Further, Ms. Hankerson testified that, for April, May, and June 2011, she considered taking leave using the FMLA and contacted her UTD Representative. Ms. Hankerson decided not to take leave using the FMLA. The UTD Representative did not testify at the hearing. Ms. Hankerson's testimony is found to be credible. Again, Ms. Hankerson did not provide this detail to Ms. Thomas. Ms. Hankerson testified that the circumstances that she indicated caused her absences, tardiness, and early departures have been resolved. Her testimony is found to be credible. Before working at McMillan on September 20, 2010, Ms. Hankerson had no prior disciplinary action taken against her by the School Board.
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 suspending Lavonda Hankerson, without pay, for the 2011-2012 school term and under other terms and conditions deemed appropriate by the Miami-Dade County School Board. DONE AND ENTERED this 7th day of November, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 2011.
The Issue The issue is whether the termination of Respondent, Barbara Paul, by Petitioner, "for cause," was justified.
Findings Of Fact Respondent Barbara Paul is a teacher covered under the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and DCSB for 2006-2009. Respondent is a tenured or experienced contract teacher, who can only be terminated for "just cause" as defined in the Tenure Act and the CBA. Respondent has used the word "boy" on more than one occasion to address male students. Respondent has told a female student to "shut her mouth" or "shut her face." Respondent worked for DCSB as a full-time "tenured" teacher during the 2006-2007, 2007-2008, and 2008-2009 school years. Respondent, originally born in Jamaica, moved to the United States in March 1989, where she has remained since that time and, with the exception of one year in 1998, has been employed as an English/Language Arts ("E/LA") teacher for DCSB. E/LA consists of primarily literacy, English, grammar, some writing skills, and aspects of reading. During the 2008-2009 school year, Respondent, a "tenured/professional contract" teacher, was certified by the Florida Department of Education (FDOE) to teach language arts and was assigned to teach creative writing to 12 and 13-year-old students (sixth grade) at Paxon. DCSB is a duly-constituted school board charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida, pursuant to Section 1001.31, Florida Statutes. Pursuant to her contract with DCSB, and consequent to holding a professional teaching certificate issued by FDOE, Respondent was, at all times material, subject to DCSB's rules and regulations as well as all applicable Florida laws and regulations, including Sections 1012.23 and 1012.33, Florida Statutes, and FDOE Rules 6B-1.001 and 6B-1.006. Teachers employed by DCSB are bound by a "Progressive Discipline" Policy, which generally prohibits adverse employment action based on misconduct unless the following steps are taken: (a) a verbal reprimand, (b) a written reprimand, (c) a suspension without pay, and (d) termination. The policy may be disregarded for "some more severe acts of misconduct." Respondent does not dispute that the following steps in the Progressive Discipline Policy were taken, although she disputes the factual particulars of such disciplinary actions: September 2006, Step I Verbal Reprimand, DuPont Middle School, based on inappropriate comments made during a parent conference; October 2006, Step II Written Reprimand, DuPont Middle School, based on inappropriate, racial comments to students; May 2007, Step III Five-Day Suspension, DuPont Middle School, for battery upon a student; February 2008, Step II Written Reprimand, Paxon Middle School, for threatening to shove a broom down a student's throat. If the instant charges are supported, Respondent's misconduct during school year 2007-2008 would constitute "Step Three," the final step of the Progressive Discipline Policy, which justifies termination of her employment. The instant charges are based on an incident that occurred on March 19, 2009, at Paxon. During the fourth period (toward the end of the school day), six students reported to the sixth-grade administrative office at Paxon and reported that their creative writing teacher, Respondent, would not allow them into her classroom. Ronnie Williams was the assistant principal and the sixth-grade house administrator at that time. Mr. Williams instructed the school's security officer, J.R. Johnson, to escort the students back to the classroom to find out what was going on, because they had no passes or referrals from the teacher, as required by school policy. Mr. Johnson returned about 15 or 20 minutes later with the students and reported that, contrary to school policy, Respondent still refused to allow them back into her class, and that she stated she would be writing them referrals. Two of the students, K.W. (female) and D.P. (male), told Mr. Williams that Respondent had pushed K.W. and also stepped on K.W.'s foot. D.P. stated that Respondent had hit him in the face with a book. After that, because of the seriousness of the allegations, Mr. Williams asked each student to complete a written statement of what they observed in the classroom. The students were kept separated from one another while they wrote their statements, so that Mr. Williams could observe them. Mr. Williams testified that the children did not have an opportunity to speak with one another or to compare statements, and did not collaborate in any manner when the written statements were done. Mr. Williams then individually interviewed each student. Each of the student's statements was consistent with one another and with K.W.'s and D.P.'s accounts. According to the students' written statements (all of which were entered into evidence without any objection from Respondent) and interviews, D.P. and K.W. had entered Respondent's classroom before the final bell had rung. After she entered the class, K.W. realized she had left her purse with another student and stepped out of the class to retrieve it. D.P. reported that he asked Respondent for permission to go the restroom, which she granted. Both children had put their book bags and books down in the classroom. D.P. reported that when he returned, there was a line of students about four or five deep waiting outside the classroom trying to get in. Respondent was standing in the doorway blocking their entrance and trying to close the door against the students. D.P. went around the line to try to get back in the classroom, reminding Respondent that she had given him permission to go the restroom. Nonetheless, she would not let him back in. Instead, she twisted D.P.'s arm to remove his hand from the classroom door handle, pushed him back and back-handed him with a book across the bridge of his nose and his face. When K.W. tried to enter the classroom to retrieve her book bag, Respondent yelled at her and pushed her back with her forearm and elbowed her two or three times in the chest and in the course of doing so, Respondent also stepped on K.W.'s foot and scratched her. After striking K.W. and D.P., Respondent pushed them out of the classroom door and sent them and four other children to Mr. Williams, the sixth-grade house administrator, without passes or referrals. The following morning, Mr. Williams sent an e-mail to the principal, Dr. Darrell Perry, summarizing the incident. Mr. Williams described a telephone conversation he had with Ms. W. (mother of K.W.), in which Ms. W. told Mr. Williams that her daughter reported to her that Respondent had made several derogatory racial comments to students in class, including using the phrase "negro power," which Ms. W. found to be offensive. The mothers of both K.W. and D.P. came to the school to complete statements. Ms. P. also filed a formal complaint against Respondent to the DCSB police officer on duty at Paxon, Officer Green. Mr. Williams received a referral from Respondent concerning K.W. on the date of the incident, Thursday, March 19, 2009, but did not receive a referral concerning D.P. until Monday, March 23, 2009. Mr. Williams concluded from this delay that "the reason the referral [for D.P.] was written was because there were allegations made against Respondent from D.P." Mr. Williams also observed on the date of the incident a recent scratch on K.W.'s arm that K.W. told him was caused by Respondent. Respondent called Ms. P. (mother of D.P.) on March 19, 2009, telling her that Respondent was writing her son up for skipping class. When Ms. P. tried to ask her about the details, Respondent proceeded to talk about other students in her class. When Ms. P. asked Respondent to tell her what happened with her son, Respondent got short with her and hung up. About five or ten minutes later, her son, D.P., called her and told her that when he got to the classroom, he asked Respondent for permission to go to the restroom, which Respondent granted. When he returned to the classroom, there was a line of children at the door of the classroom trying to get in, and Respondent was in the middle of an altercation with another female student, K.W. Respondent and K.W. were "going back and forth," and D.P. said that he saw Respondent push K.W. and then step on K.W.'s foot. When he tried to enter the classroom, Respondent pushed him and hit him in the face with a book. When Ms. P. returned home, she received a call from Ms. W., the mother of K.W. Prior to the telephone conversation, Ms. P. had never spoken to Ms. W. They did not know each other because they lived in different parts of town. D.P. and K.W. did not have a chance to speak with each other after the incident, because it was the end of the day and Ms. P picked up her son from the office when he telephoned her. The story K.W. told her mother concerning the incident with Respondent was the "same exact thing that my son had just told me when I picked him up from school and when he had called me." Prior to this incident, D.P. had received only one referral at any time in his school history for an altercation with another student. Ms. P.'s testimony was consistent with the written statement that she made on March 20, 2009, the day after the incident. At the hearing, D.P. testified that after the warning bell had rung, but prior to the late bell ringing, he asked Respondent if he could leave the classroom and go to the restroom. Respondent said yes. When he was trying to get back into the classroom, another student was also trying to get into the class to get her things. Respondent was pushing her and stepped on her foot. When D.P. tried to go in, Respondent pushed him and then she hit him in the face with a book. D.P., a small-framed, 11-year-old male of only about five feet tall at the time of the incident, demonstrated how Respondent had hit him, and described the book she used as an oversized literature book with a hard cover. He demonstrated and testified that Respondent hit him with the book across the face, striking him in the nose, that it hurt him when she struck him and that it looked like it was intentional on her part and not an accident. D.P.'s testimony was consistent with the written statement he made to Mr. Williams on the day of the incident. Upon receipt of the incident report, DCSB's Office of Professional Standards (OPS) initiated an investigation. The investigation was primarily handled by OPS Investigator John G. McCallum, an experienced former detective with the Jacksonville Sheriff's Department and investigator with the State Attorney's Office, now serving DCSB. While the principals generally handle Step I and Step II disciplinary actions, OPS normally investigates more serious cases, such as the instant case, alleging a battery on a student. Within days of the incident, on Monday, March 23, 2009, Mr. McCallum went to the school and interviewed Assistant Principal Ivey Howard, who was in charge of curriculum; Mr. Williams, the sixth-grade house administrator; student- victim K.W.; student-victim D.P.; Security Officer Johnson; and Christina Price, a reading resource teacher assigned to Respondent's classroom that day. Mr. McCallum also attempted to interview Respondent, but she elected to provide her statement through her counsel. Mr. McCallum also reviewed all the statements that Mr. Williams had received from the students and Ms. P., the mother of D.P. When he individually interviewed students D.P. and K.W., Mr. McCallum asked them also to demonstrate with him what happened, putting Mr. McCallum in the positions that they were in relative to Respondent and the other students. This helps him evaluate witness credibility, in that sometimes a child witness will demonstrate details in the "role play" that he or she may not have put down in the written statement. Similarly, D.P. demonstrated to Mr. McCallum that Respondent "back-handed him" with a workbook across the bridge of his nose and across his face and yanked, twisted, and pulled his arm. Mr. McCallum reported that K.W.'s and D.P.'s verbal statements from his interviews were consistent with their and the other students' written statements. Respondent's version of the events of March 19, 2009, differs dramatically from those of the seven student and two adult witnesses. Respondent asserted that six students were seven minutes late to class, yet she allowed them in the class and wrote their names on the tardy log. She then stated that two students, C.B. and B.P. were "skipping class" and that she saw them at the end of the hallway. Although this detail was not mentioned in her written statement (and is completely contradictory to the testimony of Paxon Principal Darrell Perry), Respondent testified at the hearing that the teachers at Paxon were required to keep their classroom doors locked because "this is the inner city where guns were rampant in our classrooms and outside." She stated that someone knocked on the classroom door, and when she opened it, three students, K.W., D.P., and V.C. (a male student), ran out of her classroom. She then said that the three students stopped "at my door," and K.W. tried to come back in to get her "stuff" from the room and in doing so "slammed" her body into her and cursed at Respondent, demanding her "stuff." Respondent claims to have received an injury from that contact which was treated at an emergency walk- in medical clinic later that evening. She further testified that V.C. and D.P. "forcefully kept the door ajar" as she attempted to close it "to diffuse the situation." Further, contrary to all of the students' statements, Respondent denies pushing or striking any student, although she admits she may have "accidentally" stepped on K.W.'s foot. In her written statement, she asserted that she "wrote referrals on all students who were outside, except A.W." In fact, the only referrals she wrote were for K.W. and D.P. Mr. McCallum found the interviews with the two student victims to be credible and consistent. Conversely, he found Respondent's statement to be markedly distinct from the other statements. Respondent's claim that she was injured and sought medical treatment is doubtful when she failed to report any such claim to the school's administration nor produce at any time any records or medical reports to support this claim. Prior Discipline: A Pattern of Similar Misconduct Paxon Middle School – February 2008 (Step II Written Reprimand) Respondent was hired by Dr. Darrell Perry, principal of Paxon, to teach English and Language Arts to sixth-grade Paxon students beginning with the 2007-2008 school year, which was also Dr. Perry's first year at Paxon. Dr. Perry selected Respondent from the "voluntary surplus list" and interviewed her for the position. Based on her experience as a "seasoned English language arts teacher," he hired Respondent. Dr. Perry was aware of Respondent's prior disciplinary history when he brought her to Paxon, partly because Respondent had to serve out a suspension she received while at DuPont the prior school year for a Step III disciplinary action charging battery upon students. Notwithstanding her prior disciplinary history, Dr. Perry testified that he believed Respondent possessed the right skills and was willing to give her an opportunity to grow in a different setting. Nonetheless, on May 24, 2008, Dr. Perry issued to Respondent a Step II Written Reprimand for Respondent's "inappropriate and offensive" remarks made and actions taken with female student, A.H., on February 14, 2008, in which A.H. alleged that Respondent placed a broom handle in A.H.'s face and stated, "I will shove this broom down your throat." Before issuing the discipline, however, Dr. Perry referred the matter to the OPS (Director John Williams and Investigator Leroy Starling) to investigate. Based on their investigation, interview of Respondent, and review of witness statements, Investigator Starling issued his report sustaining the allegations. Allen Moore, who was, at the time of the A.H. incident, assistant principal at Paxon and eighth-grade house administrator, performed the initial investigation of the alleged misconduct, which was part of his responsibilities as house administrator. Mr. Moore recalled that A.H. came to his office, directly from Respondent's class, and told him that after a verbal exchange between the two, Respondent held a broom handle in A.H.'s face and threatened to shove the broom handle down her throat. Mr. Moore then selected at random five other students from Respondent's class, those whom he knew to be credible and good students, and separately interviewed them and asked them to prepare statements. He also asked A.H. to prepare a written statement. Each student confirmed A.H.'s statement that Respondent threatened to put the broom handle down A.H.'s throat. Mr. Moore concluded that the incident took place as A.H. had stated. In direct contrast to this set of facts, according to Respondent, one of the other female students in the class picked up the broom and asked if she could sweep the floor. Respondent testified that she thought the student was going to hit A.H. or sweep her feet, because A.H. had tripped her. She asked the student to put the broom away. Respondent took the broom from her and was on her way to put it away, stating that she was walking away from A.H., when A.H. began cursing at her, telling Respondent to move or she would "beat" her "a - - " with the broom. Respondent stated that she responded: "and what should I do, stick [the broom] in your mouth?" With respect to the level of discipline he gave to Respondent for the incident, a Step II Written Reprimand, Dr. Perry testified that while he could have given her a Step III termination based on the allegations of the A.H. incident and Respondent's previous Step III discipline issued at Dupont for similar behavior, he decided to give her a Step II. Dr. Perry believed Respondent had some strengths that she could contribute at Paxon. He hoped to rehabilitate her. Shortly before the end of the 2006-2007 school year and before requesting a voluntary transfer to Paxon, Respondent received a five-day suspension for battery upon two DuPont students and for physically blocking another student from leaving her classroom in three separate incidents that took place within days of one another, on April 24, May 2, and May 3, 2007. April 24, 2007 - Alleged Battery of Female Student P.C. In the first occurrence on April 24, 2007, a female seventh-grade student, P.C., was trying to leave Respondent's classroom. P.C. reported that in an attempt to keep her from leaving the classroom, Respondent grabbed P.C.'s ID lanyard, which was around P.C.'s neck, as P.C. walked by Respondent and Respondent yanked her back, leaving her with a rope burn mark on her neck. P.C. reported the incident right away to Assistant Principal Shannon Judge, who testified at the hearing and, shortly after the occurrence, had prepared a written statement to then-school Principal Gary Finger summarizing the incident and her investigation. P.C. stopped Ms. Judge in the hallway, coming straight from the classroom moments after the incident with Respondent, and was visibly upset. P.C. told Ms. Judge that Respondent had stopped her from leaving the room and had grabbed her by her badge as she attempted to leave, which she wore on a lanyard around her neck. P.C. said to Ms. Judge, "look at this," and P.C. turned around and held up her hair in the back. Ms. Judge could see "one dark red line and a smaller red line" on the back of P.C.'s neck, which was not a cut, but which looked like a "burn" where the lanyard had been pulled. P.C. told her that some students had been told by Respondent to stay after class, but that P.C. was not one of them. When P.C. tried to leave the classroom, Respondent blocked the doorway. As she attempted to go around Respondent, Respondent grabbed her ID lanyard. Ms. Judge, who was on her way to another assignment in the lunch room, instructed P.C. to go to Ms. Judge's office and fill out an incident form. When Ms. Judge returned to her office approximately 45 minutes later, she reviewed P.C.'s statement, interviewed her, and took a photograph of the marks on the child's neck, which by then had somewhat faded. P.C. had listed some witnesses in the classroom to the event, whom Ms. Judge interviewed and asked to complete written statements. Ms. Judge also "pulled some random kids from the class" who were not listed on P.C.'s list, each of whom also individually gave written statements and were separately interviewed by Ms. Judge. Ms. Judge also called Respondent and took a verbal statement from her over the telephone. Respondent relied upon her written statement made through her attorney, delivered to DCSB nearly three months later on July 16, 2007, concerning the incident with P.C. Respondent admitted she did have "words" with P.C., and that P.C. was trying to leave her class when she was not supposed to, but that she had not grabbed P.C. by her lanyard. Perhaps, she stated, her lanyard "got caught" on Respondent's arm as P.C. tried to push past her. In her written statement, Respondent also speculated that the marks on P.C.'s neck may have been "self-inflicted or occurred at another time and place." When further questioned about that statement at the hearing, Respondent replied: "She did yank on her lanyard, but I don't know if that was sufficient to leave a mark." When questioned whether Ms. Judge would have any reason to lie about what P.C. told her and the marks on P.C.'s neck that Ms. Judge observed, Respondent replied: "I don't know of any reason." Respondent's statement and testimony, with no evidence to support it, does not support her version of the events. Based on Ms. Judge's investigation, the consistency among all the student witness statements with P.C.'s account, the fact that P.C. was a good student who rarely, if ever, received any referrals or got into trouble, and Ms. Judge's observation of the red marks on P.C.'s neck within moments after the altercation, Ms. Judge concluded that the P.C.'s allegations were substantiated and recommended to Mr. Finger that Respondent should be disciplined for her actions. May 2, 2007 – Alleged Battery of Male Student D.W. On May 2, 2007, within days of the P.C. incident, Respondent had taken her class out into the hallway so that some of the children could use the restroom. One of the male students, D.W., came out of the restroom, and, according to Respondent, she thought he had not washed his hands and was attempting to wipe his hands on Respondent. Carmen Polenco, a science and math teacher for seven years at DuPont and a former director of a program in New York treating women dually diagnosed with psychiatric problems and drug additions and their infant children, was coming out of the administrative office on May 2, 2007, and walking down the main hallway where Respondent and her students were located. As Ms. Polenco approached, she heard students yelling "let him go, let him go" and saw that Respondent had grabbed a male student, D.W., by the collar of his shirt held up around his throat and was pushing him backwards down the hallway toward Ms. Polanco, saying something like "Oh, no you won't" to the student. Ms. Polanco demonstrated at the hearing how Respondent was holding D.W. with one hand around his shirt collar and her other hand in the air. Ms. Polanco told Respondent to stop, and she let D.W. go. D.W. yelled to her, "she grabbed me and she wouldn't let me go and I was scared she was going to hit me." After Respondent let D.W. go, Ms. Polanco noticed that Respondent had scratched the student's neck and broken his necklace. Respondent told Ms. Polanco that the student had placed his hands, open palm on the top of her shoulder. Respondent was "very angry" by this and proceeded to grab him, because, as she stated to Ms. Polanco at the time, "I did not want his dirty hands on me." Ms. Polanco also made a written statement to Assistant Principal Steele the day after the incident. Mr. Steele had also observed some of the incident, and had also memorialized his observations in a memorandum to Mr. Finger one day later. Respondent's version of events again differs dramatically from all the other witnesses' testimony. Again, Respondent relied on her written statement of July 16, 2007, which she affirmed at the hearing. Respondent admitted that she held D.W. by his lapel (not his collar), but stated that she was walking with him "side by side," and not walking him backwards down the hallway as Ms. Polanco observed. At the hearing, Respondent did not have any explanation for Ms. Polanco's contradictory testimony other than that she "was not within close proximity enough to see what happened." In light of Ms. Polanco's testimony that she had a clear view of exactly what Respondent was doing, and the other witness testimony, Respondent's testimony is not credible. May 3, 2007 – Blocking Student's Exit One day later, while he was still in the process of writing up Respondent for the previous two incidents, Mr. Finger received a phone call in his office from Respondent telling him that one of her students would not leave her classroom. When he got there, Mr. Finger took the student out in the hallway and asked him why he did not leave the room. The student responded that it was because Respondent was blocking the door and would not let him out. Mr. Finger then selected some other students at random from the class to find out if the student was telling the truth, and the other student statements were consistent – that Respondent had blocked the door. Respondent's statement summary as to these three incidents is typical of her response of outright and blatant denial to all of the allegations of misconduct that have been lodged against her over a period of years and across two schools and administrations. Despite credible evidence to the contrary, Respondent has repeatedly placed the blame on the very students that she victimized. As a result of the three incidents, on May 23, 2007, Mr. Finger recommended that Respondent receive a Step III five- day suspension, which was approved by DCSB, and which Respondent served out after she voluntarily transferred to Paxon. DuPont Middle School – October 2006 (Step II Written Reprimand) Respondent received a Step II Written Reprimand for comments that she made in class and during a parent-teacher conference in October 2006, in which Mr. Finger and then- Assistant Principal Loretta Hines were also present. The meeting was initiated by the female parent when her son came home and told her that Respondent exhibited prejudicial behavior toward the African-American children as compared to the white children, and made racist comments in the classroom. For example, the child told his mother that Respondent would let the white children go to the bathroom, but not the African-American children, and that she told a white student that she had to send him to a "time-out" because she didn't want the others to think she was a racist. She also referred to African-Americans as "negroes" and called male black students "boy." During the conference, Respondent told the parent that she had no problem referring to African-American male students as "boy" because in her country of origin, Jamaica, this was not an offensive salutation. Respondent made other comments in the conference that angered the parent, and "embarrassed" and "disgusted" Ms. Hines and Mr. Finger. At that time, Respondent had been in the United States for approximately 16 years. Respondent stipulated that she used the term "boy" to address male students, but denies she used it specifically with African-American male students. At the hearing, rather than testify concerning the specific allegations of her misconduct, Respondent "reaffirmed" the written statement she made to Principal Finger on October 18, 2006, in which she denied being a racist, although she admitted that "sixteen years should be long enough to be able to use the proper terminology. However, habits do not just disappear overnight." DuPont Middle School – September 2006 (Step I Verbal Reprimand) Respondent received a Step I verbal warning for telling students to "shut their mouths" or "shut their faces." In her written statement, Respondent stated that she told a female student on at least one occasion to "shut her face because her face was in mine." She also stipulated to this fact in her pretrial stipulation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order terminating the employment of Barbara Paul as a teacher. DONE AND ENTERED this 6th day of May, 2010, 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 6th day of May, 2010. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Carol Mirando, Esquire City Hall St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ed Pratt-Dannals, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
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 The issue is whether Respondent should be dismissed from his employment as a school teacher for just cause pursuant to Section 231.36(1)(a), Florida Statutes.
Findings Of Fact Background Petitioner is the duly appointed Superintendent for HCSB. He is responsible for the administration and management of the Hernando County School District. HCSB is the governing body of the Hernando County School District. It is charged with the responsibility to operate, control, and supervise all free public schools in Hernando County, Florida. At all times material here, Respondent was, and continues to be, an employee of the HCSB as a member of the instructional staff pursuant to a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with minor students. Apart from the allegations raised in this case, Respondent has been a satisfactory employee. No employee, agent, or representative of the HCSB was aware of any allegations of inappropriate sexual conduct between Respondent and any student until law enforcement officials notified school officials about an investigation a few days before Respondent's arrest. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher. He eventually became the technology resource coordinator at Powell Middle School. Respondent served as director of an after school program (ASP) at Powell Middle School beginning in January 1995. HCSB and the local YMCA sponsored and funded the ASP until sometime in the spring of 1996. Respondent was in large part responsible for the successful creation, organization, and operation of the ASP. The ASP began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after school activities, like swimming lessons, took place on the premises of the YMCA. The ASP participants rode a school bus from the school to activities in remote locations. Respondent directed the ASP initially from his classroom in the science building of Powell Middle School and subsequently from a room used as a computer lab, which was adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the ASP were stored there. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to the cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp, in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. C.B. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. At that time, C.B. was not one of Respondent's regular students. He was a participant in the ASP. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the ASP. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. However, with help from his counselors, and encouragement from Respondent, C.B. stayed at camp for eight weeks. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the ASP. Respondent regularly drove C.B. home following the close of the ASP. Respondent worked one-on-one with C.B. to improve his grades. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B.'s grades improved markedly. Respondent encouraged C.B. to set high school graduation as a goal. C.B. testified that, during the after school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. They traveled in Respondent's pick-up truck and shared the expenses of the trip. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Respondent and C.B. paid their entrance fee and entered the theme park as soon as it opened for business. With so many people around, there was no expectation of privacy in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Families. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. C.B. attended camp at a reduced rate again in the summer of 1996. He went to Vermont early so that he could earn money working at camp before it opened. During the summer, Respondent bought C.B. a portable C.D. player, C.D.'s, and some articles of clothing with the understanding that C.B. would repay Respondent later. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996 for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead High School. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons, as he had for those of other young people. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent that weekend because he was on restrictions at home. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. After a confrontation with his parents, C.B. ran away from home. On September 21, 1996, Respondent went to C.B.'s home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor, and their son and daughter, were close friends of Respondent. The son, Sean O'Connor, was away at college. The daughter, Jennifer, still lived at home. C.B.'s parents agreed to let C.B. live with the O'Connors on a trial basis, provided that C.B. remain on restrictions within the O'Connor home for a period of time. The O'Connors did not live within the Springstead High School district. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Respondent purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his step-brother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996 was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connor residence, then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connor home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On Thursday, October 24, 1996, C.B.'s father decided that he wanted C.B. to move back home. When the father arrived at the O'Connor's home, C.B. attempted to have a heart-to-heart talk with his father. When the father insisted that C.B. return home, C.B. ran out into the yard of the O'Connor home. The father caught up with C.B. and, during the ensuing struggle, repeatedly punched C.B. in the face. The O'Connors called the police. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with the O'Connors' daughter. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with her. Because he would not go home with his stepmother, C.B. was taken to a youth shelter. He ran away from the shelter that night. C.B. continued to attend school while on run away status. On October 29, 1996 and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Families each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father's made his first court appearance, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.3 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct, involving masturbation of Respondent's penis, in Respondent's science classroom or the computer room at Powell Middle School during after school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. A.P. Respondent met A.P., a sixth grade student at Powell Middle School in 1995 as a participant in the ASP. A.P. was a very out-going person, who demanded attention. At times, Respondent, as director of ASP, had to discipline A.P. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during ASP. Respondent frequently gave A.P. a ride home after ASP. Respondent offered A.P. a scholarship to attend Camp Sangamon in the summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the ASP. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley, interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That the Hernando County School Board enter a Final Order finding Respondent not quilty of improper sexual conduct with C.B. and A.P., and reinstating Respondent to his teaching position, with back pay, less interim earnings, benefits, and no break in seniority of years of continuous service. DONE AND ENTERED this 10th day of September, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of September, 1998.
The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
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 sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
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.
The Issue Whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact For approximately seven years, William Mitchell (Respondent) was employed as a custodian with the Monroe County School Board (Petitioner). Until 1997, Respondent worked at night at Horace Bryant Middle School, coming to work around 2:00 p.m. Respondent had very little contact with students during the school day at Horace Bryant Middle School. In or about 1997, Respondent voluntarily transferred to Key West High School and worked during the school day where he had contact with students on a regular basis. As a custodian, Respondent had no responsibility for student discipline at either school. At the time of the hearing Respondent was 53 years of age. He was described by his supervisor at Key West High School as a good employee. Respondent was considered hardworking and gentlemanly. Respondent was not known to be a violent man and had not exhibited any violent or aggressive behavior. Respondent's duties, as custodian at Key West High School, included replenishing the soda can machine and removing the money from the machine in the mornings. In the early part of March 1998, while Respondent was replenishing the machine with sodas, a student, Jerome Simmons,1 took one of the sodas from the machine. Respondent approached Simmons and questioned him regarding the soda, but Simmons denied taking the soda. Respondent believed that Simmons was not telling the truth. The soda was not in Simmons' possession and could not be found. Respondent was aware that it was appropriate for him to report misconduct by a student to the assistant principal or the school resource officer. Respondent reported the incident to the assistant principal, Robert Fletcher. Mr. Fletcher questioned Simmons who again denied taking the soda. Mr. Fletcher determined that nothing could be done because Simmons denied taking the soda and the soda was not in Simmons' possession. Simmons was an eighteen-year-old senior at Key West High School. He was stocky, well built, and muscular, having the appearance of someone who lifts weights. Simmons' tenure at Key West High School had not been without incident. He had been disruptive and been disciplined, which included suspension. John Welsh, an assistant principal, whose responsibilities included discipline of students, was very familiar with Simmons. Mr. Welsh observed, among other things, that Simmons was the kind of person who was likely to get the last word in an argument. A few weeks after the soda incident, on March 23, 1998, Simmons was returning from a meeting with his probation officer at the administrative office of Key West High School when he encountered Respondent who was going to the administrative office to obtain the key for the soda can machine. They were passing one another in a narrow hallway, and Simmons deliberately bumped Respondent; Simmons had sufficient room on his side of the hall to pass Respondent without bumping him. Respondent reacted to the deliberate bump by telling Simmons to look where he was going. Simmons mumbled something unintelligible to Respondent, who continued walking to the administrative office and obtained the key for the soda machine. Even though the assistant principal was located in the administrative office, Respondent did not report the incident. Based upon the last encounter with Simmons, Respondent believed that he needed more than an intentional bump and something mumbled unintelligible by Simmons to demonstrate misconduct by Simmons. After obtaining the key for the soda machine, Respondent proceeded to the soda machine to replenish it with sodas. While Respondent was filling the soda machine, Simmons approached Respondent from the side, staying approximately ten to fifteen feet away from Respondent, and again mumbled something unintelligible. Respondent did not want to stop his work and stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Even though Respondent used the term play, Respondent did not believe that Simmons was playing. Respondent did not report this second encounter to the assistant principal or the school resource officer. Respondent again believed that he needed more than what had happened based upon the previous soda incident involving Simmons that he (Respondent) had reported. Simmons walked away from Respondent toward the gym and again mumbled something unintelligible. However, Simmons did clearly say to Respondent, "come on." Respondent followed Simmons in hopes of being able to decipher what Simmons was mumbling in order to report Simmons if Simmons was saying anything inappropriate, as Respondent believed. It was not inappropriate for Respondent to follow Simmons. When Simmons entered the gym, he approached a physical education teacher, Nancy Thiel, and informed her that a janitor wanted to fight him. Very shortly thereafter, Ms. Thiel saw Respondent at the doorway to the gym. Simmons knew that Ms. Thiel was conducting class in the gym because, approximately twenty minutes earlier, she had directed Simmons to leave the gym since he was not in her class. A finding of fact is made that Simmons' remark that a janitor wanted to fight him is untrustworthy and not made under the stress of excitement. Simmons was calm, not appearing excited, and was relaxed when he made the remark. A finding of fact is further made that Simmons made the remark to shield himself from any wrongdoing and to make it appear that Respondent was the aggressor. Ms. Thiel was standing next to Simmons when Respondent came to the doorway to the gym. Respondent appeared calm and relaxed, not angry. Respondent again stated to Simmons that, if Simmons wanted somebody to play with, he'd better go home and play because he (Respondent) had children older than Simmons. Simmons removed his shirt and remarked to Respondent, "You want some of this," and proceeded out of the gym to the walkway where Respondent was standing. Respondent knew when Simmons removed his shirt that he (Simmons) was serious and wanted to fight. Respondent remarked, "Let's go."2 When Respondent realized that Simmons was serious and wanted to fight, Respondent was presented with an opportunity, although of short duration, to remove himself from the confrontation. Respondent failed to leave the immediate area of the confrontation and report the incident to an assistant principal or to a school resource officer. Respondent and Simmons confronted one another. They glared at one another and, almost simultaneously, lunged at one another.3 Simmons grabbed Respondent at the bottom of both Respondent's legs; Respondent lowered his weight so as not to allow Simmons to pick him up and throw him to the ground on the concrete. They wrestled and both of them fell to the ground on the dirt and sand area, avoiding the concrete area, with Simmons landing on top of Respondent and being in control. The struggle was over very quickly. No punches were thrown by either Simmons or Respondent. No criminal charges were filed by either Simmons or Respondent against one another. Petitioner has a policy prohibiting fighting at the workplace. Petitioner's policy does not prevent an employee from acting in self-defense. Moreover, if an employee is defending himself or herself and fighting ensues, the employee would not be terminated for fighting. An employee is considered to have acted in self-defense if a student lunged at the employee and the employee held the student and, while holding the student, both the employee and the student wrestle to the ground. Respondent was not acting in self-defense. When Simmons removed his shirt and remarked whether Respondent wanted some of him, Respondent had an opportunity to remove himself from the confrontation and report the situation to an assistant principal or school resource officer. Instead, Respondent chose to continue with the confrontation which led to physical contact between Simmons and Respondent. According to the principal of Key West High School at the time of the incident, teachers receive training related to student behavior/relations as part of their professional training; and educators must adhere to the Florida Code of Ethics, which, among other things, governs their interaction with students. However, no such training and no information is disseminated to support personnel, such as Respondent, regarding standards of behavior between employees and students. Even though custodians are not licensed or trained educators, custodians, according to the principal, are held to the same level of behavior as educators. Furthermore, according to Petitioner's Director of Support Services, Robert Menendez, all school employees, including custodians, are held to a higher standard. Mr. Menendez also indicated that there is an implied code, which is a common sense approach, that employees do not confront students on school campus and create problems. This higher standard and implied code were not communicated to the custodians, including Respondent, and the custodians did not receive training regarding handling conflicts with students or aggressive students. If an employee is being held to a standard, the employee should be informed of the standard and, if required, receive appropriate training regarding the standard. Where there is an absence of communication or information or an absence of appropriate training regarding the standard, the employee cannot be held to the standard since the employee has no knowledge of the standard or has not received the appropriate training for the standard. However, in the instant case, although the higher standard and implied code were not communicated to Respondent and he did not receive training regarding handling conflicts with students or aggressive students, Respondent knew that he could report misconduct by a student to the assistant principal or school resource officer. Respondent failed to make such a report and, instead, chose to confront Simmons. Consequently, the absence of knowledge of a standard or the absence of training on the standard is of no consequence in the instant case. After an investigation, Mr. Menendez determined that Respondent had violated Petitioner's policy prohibiting fighting at the workplace and recommended to the Superintendent of Monroe County schools that Respondent be terminated from employment with Petitioner. Subsequent to Mr. Menendez's recommendation, a review of the incident was conducted by Petitioner's Director of Human Resources, Michael Wheeler, whose role was that of a hearing officer. Mr. Wheeler reviewed the allegations of misconduct against Respondent. Mr. Wheeler determined, based upon his review, that Respondent had violated Petitioner's policy against fighting at the workplace and recommended Respondent's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Monroe County School Board enter a final order sustaining the dismissal of William Mitchell and terminating his employment. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1999.
Findings Of Fact During the 1985-86 school year Respondent Gregory Hunter Stephens was a student in the tenth grade at Miami Sunset Senior High School. On April 18, 1986, during the lunch period Respondent drove into the faculty parking lot in his Corvette with the police following closely behind. It was determined that during his lunch break Respondent had been driving his Corvette in a nearby condominium development threatening residents and throwing beer cans on the lawns. The residents had summoned the police. An Assistant Principal held a conference with Respondent's father whose response was that the police should have better things to do than to bother his son for drinking beer and driving around during his lunch break. Respondent was given a three-day suspension. On May 22, 1986, Respondent got into a fight in class, a Group III violation of the Code of Student Conduct. A conference was held with Respondent's father, and Respondent was given a ten-day suspension. Although other informal discussions were held with Respondent's father during that school year, by the end of the third grading period Respondent's grades were one "C," one "D," and 4 "Fs." His absences from his classes during the third grading period alone ranged between 2 and 13. He received only a "3" for his effort in each and every class. During the 1985-86 school year, Respondent was absent 95 days out of the 180-day school year. On March 3, 1987, an Assistant Principal observed Respondent leaving the campus during Respondent's second-period class. He stopped Respondent and gave him a warning. A few minutes later he caught Respondent again attempting to leave. Respondent's mother was contacted, and Respondent was given a "work detail detention." On April 2, 1987, a fight broke out off campus between a group of Latin students and a group of Anglo students. On the following day Respondent admitted to an Assistant Principal that he was one of the participants. All of the students involved (including Respondent) were suspended for three days for that Group III Code violation. On October 19, 1987, Respondent was nearly involved in a collision in the parking lot. Respondent got out of his car and started pushing the other driver. A fight ensued. Respondent's parents were contacted, and he was given a ten-day suspension. By the time of the October 19th incident, Respondent had already been absent 6 days that school year. Further, although the Assistant Principal had two conferences with Respondent's father during the month of October, Respondent was receiving one "C," one "D," and five "Fs" in his classes. A Child Study Team was convened, and a meeting was held on November 3, 1987. Respondent and his parents refused to attend. The Team recommended that Respondent be transferred to Douglas MacArthur Senior High School-South, based upon the October 19, 1987, incident, his failing grades during the most-recent two years, and Respondent's chronic aggressive behavior which constituted a threat to the welfare of the other students. It was determined that Respondent required assistance a normal school could not provide and that a structured environment would be more appropriate since the educators at Miami Sunset Senior High School had unsuccessfully attempted to modify Respondent's behavior by conferences between Respondent and a counselor, meetings between Respondent's parents and assistant principals, indoor suspensions, outdoor suspensions, and work detail suspensions
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered assigning Respondent Gregory Hunter Stephens to the opportunity school program at Douglas MacArthur Senior High School-South until such time as his performance reveals that he can be returned to the regular school program. DONE and RECOMMENDED this 29th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1988. COPIES FURNISHED: JOSEPH A. FERNANDEZ, SUPERINTENDENT SCHOOL BOARD OF DADE COUNTY 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 FRANK R. HARDER, ESQUIRE 175 FONTAINEBLEAU BOULEVARD SUITE 2A-3 MIAMI, FLORIDA 33172 LANA STEPHENS 15490 S.W. 85TH LANE MIAMI, FLORIDA 33183 MADELYN P. SCHERE, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132 PHYLLIS O. DOUGLAS, ESQUIRE ASSISTANT BOARD ATTORNEY DADE COUNTY PUBLIC SCHOOLS 1410 NORTHEAST SECOND AVENUE MIAMI, FLORIDA 33132
