The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981, covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008. At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District"). Ms. Kalich began her teaching career in Texas in 1981. She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher. Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse. Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten. After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress." Ms. Mitchell retired after the 1999-2000 school year. She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance." Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall, Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it. Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up." Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious. Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom. Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint. Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich. Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about. At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms. D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms. Ms. Rosario witnessed Ms. Kalich carrying or pulling D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions. Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by Ms. Kalich ever reported abuse by Ms. Kalich. Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom. On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W. On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W. Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich. D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down. Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands. As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building. Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound. Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly." Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class. Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom. Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up. Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but Ms. Kalich said she did not. Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'" Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety. D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident. Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W. Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm. Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school. Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom. Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you." Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman. Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students. Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich. In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect. The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children. Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge. Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management. DONE AND ENTERED this 9th day of January, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 9th day of January, 2004.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of an unlawful employment discrimination on the basis of her religion or age and whether the Petitioner was the subject of unlawful retaliation. If that should be the case, then the remaining issue concerns the type and amount of lost wages and other benefits as a remedy.
Findings Of Fact The Petitioner was a substitute teacher during most of 1990 with the Board and, as pertinent hereto, frequently substituted at Cordova. On or about November 6, 1990, she filed a complaint with the Commission charging discrimination against the Board and Cordova in hiring on the basis of religion and age. The Petitioner is of the Jewish faith and at the time of filing the complaint, was over the age of 40 years. The matter was investigated by the Commission which concluded that there had been no violation of Chapter 760, Florida Statutes. A notice of determination of no cause was issued by the Commission on November 8, 1991, and a notice of redetermination of no cause was issued on or about January 27, 1992. On approximately June 26, 1992, the Commission transferred the Petitioner's Petition for Relief to the Division of Administrative Hearings for formal proceedings. In that Petition, the Petitioner alleges discrimination on the basis of age, religion, and retaliation. The most recent date of discrimination alleged in that Petition is August, 1990. The Petitioner alleges that she was not hired as a teacher at Cordova because of reasons related to her Jewish faith and her age of over 40 years. The only act of "retaliation" alleged in the Petition related to Mr. Thomas not having selected her for a full-time position "in retaliation for the complaints expressed by the parents regarding the termination of my appointment." The "appointment", according to the Petitioner in the Petition, concerned the Petitioner being hired on a temporary basis to teach a kindergarten class with that appointment to be terminated when another teacher was transferred to the staff at Cordova. No testimony was presented at hearing by the Petitioner or any witness called on her behalf concerning any of the allegations set forth in the original complaint of discrimination filed with the Commission or contained in the Petition transferred to the Division of Administrative Hearings. The first witness called by the Petitioner was Mrs. Genie Nobles, a secretary at Cordova. Mrs. Nobles testified that at Cordova, when regular teachers need substitutes because of anticipated absences, those teachers generally contact the substitutes themselves and communicate with them themselves regarding the need for the substitute, as well as other necessary information concerning the requirements for the substitute teaching duties. On some occasions, teachers will ask administrative staff in the school office, whether it be Mrs. Nobles or another staff member, to call a specific person to substitute for that teacher. On a minority of occasions, the teachers may ask someone in the office to call a substitute without requesting a specific person as a substitute. On those occasions, the person making the calls will generally refer to an approved substitute teacher list and simply call someone on the list. Mrs. Nobles was aware that the Petitioner had filed a complaint of discrimination when a question was raised by a teacher during a staff meeting; and Mr. Thomas, on being asked whether such a complaint had been filed, confirmed that it had. Mr. Thomas made no editorial comment, however, regarding the nature or merits of the complaint nor expressed any opinion or admonition either for or against the hiring of the Petitioner as a substitute teacher. Mrs. Nobles could not recall calling the Petitioner as a substitute teacher at any period of time after the filing of the complaint in November, 1990. Mrs. Nobles also testified that Mr. Thomas did not ever direct request, intimate, infer, or advise her or any other administrative staff or teacher that the Petitioner should not be called as a substitute teacher either before or after the complaint of discrimination was filed with the Commission. Mrs. Nobles was aware that one or more regular teachers at Cordova had expressed reservations about the Petitioner's reliability as a substitute relative to her meeting the required schedule for substitute teaching. Ms. Marie Nelson is the librarian at Cordova. She acknowledged that a misunderstanding had occurred regarding scheduling of the Petitioner as a substitute teacher involving her schedule and that of another teacher, Ms. Holman. The Petitioner had made a commitment to Ms. Holman to substitute on specific days; however, Ms. Nelson needed the Petitioner for a longer period of time and requested Ms. Holman to release the Petitioner from her obligation to Ms. Holman so that the Petitioner could substitute for Ms. Nelson. Ms. Nelson recalls that Ms. Holman agreed to this. Due to some misunderstanding, however, Ms. Holman concluded at some point in time that the Petitioner had not fulfilled her commitment to her and became unhappy with the Petitioner as a substitute because she had not substituted as previously committed, at least in the view of Ms. Holman. Ms. Nelson testified that Mr. Thomas had never instructed her not to call the Petitioner as a substitute. She established that Mr. Thomas had never directed, inferred, intimated, advised, or otherwise communicated any intention that she should not call the Petitioner as a substitute, even after the filing of the complaint with the Commission in November, 1990. Ms. Nelson had not called the Petitioner after the filing of the complaint because, for a period of time, funds were not available for substitutes. After that period when funds were not available had elapsed, Ms. Nelson's daughter had become qualified to be a substitute teacher and was thereafter called by Ms. Nelson when the need for a substitute arose. Ms. Judy Meyer is a teacher at Cordova who testified on behalf of the Petitioner. Ms. Meyer testified that during the summer of 1992, she had asked the Petitioner if she would be available to teach on a substitute basis for a gifted class during that summer. Ms. Meyer later advised the Petitioner that she would not call her to substitute after all because she was seeking a teacher who was certified in gifted teaching, believing at that point that such certification was required. Ms. Meyer subsequently learned that gifted certification was not required for such a substitute teacher but, in the meantime, had already scheduled another person to be a substitute teacher. That person was not certified in certified teaching either since, in the meantime, Ms. Meyer had learned that such certification was not required. Ms. Meyer had asked Mr. Thomas, after initially inquiring as to the petitioner's availability to teach the gifted class, as to whether he had any objections to her calling the Petitioner as a substitute. Mr. Thomas told her that he would leave that decision up to her. Mr. Thomas never directed, instructed, inferred, advised or otherwise showed intent to or otherwise tried to influence Ms. Meyer against calling the Petitioner as a substitute teacher. Ms. Meyer did testify that she felt somewhat uncomfortable about calling the Petitioner once she knew that she had filed the complaint of discrimination. Ms. Meyer made a personal decision not to call the Petitioner to substitute during the summer session on the occasion described above. It is not shown that that decision was influenced in any way by Mr. Thomas or other supervisory personnel. The Petitioner called no other witnesses other than the three witnesses referenced in the above Findings of Fact. No testimony was elicited by the Petitioner from these witnesses in her case-in-chief concerning any discrimination in hiring on the basis of religion or age. Mr. Charles Thomas testified on behalf of the Respondent. He was the Principal at Cordova during times material to the subject complaint and is now Principal at Pleasant Grove Elementary School in Escambia County. Sometime after the Petitioner filed the complaint in November, 1990, a teacher inquired of him at a staff meeting concerning a rumor she had reportedly heard that such a complaint had been filed. Mr. Thomas did not elicit that inquiry and did not previously disclose to any staff members the fact of the existence and filing of the complaint. Upon being questioned directly by that teacher, however, he did truthfully acknowledge that a complaint had been filed; but he made no further comment regarding the complaint as to its merits, accuracy, or any other editorial comment concerning it. Mr. Thomas, as did the teachers and other staff members who testified in the Petitioner's case-in-chief, testified and established that he had never instructed, directed, inferred, intimated, admonished, or advised any teacher or staff member against calling the Petitioner as a substitute teacher. Mr. Thomas was aware that some members of the staff, specifically Ms. Holman and Ms. Vinson, were unhappy with the Petitioner concerning her reliability and availability as a substitute when scheduled. He understood that Ms. Holman's unhappiness stemmed from an incident involving the Petitioner committing to Ms. Holman for a period of time as a substitute and thereafter agreeing instead to substitute for Ms. Nelson, the instance referenced in the above Findings of Fact. He was unaware of the basis for Ms. Vinson's concern about the Petitioner's reliability as a substitute teacher. He simply could not recall the details of the reasons she had reservations concerning the Petitioner's substituting. The Respondent also called the Petitioner as a witness. The Petitioner testified that prior to filing the complaint of discrimination in November, 1990, she had substituted on several occasions at Cordova and that after filing the complaint, she was not called again to serve as a substitute. She acknowledged the truth of the statement in her deposition of August 3, 1993; that after the filing of the complaint, approximately one year prior to that deposition, Ms. Hall, a teacher at Cordova, had inquired as to her availability to substitute and the Petitioner had turned down the offer because she was unavailable, since she was performing a job concerning civil service testing at the time Ms. Hall required her services. The Petitioner acknowledged that a dispute had occurred with Ms. Holman concerning her availability and that Ms. Holman was upset because she had a perception that the Petitioner had not fulfilled her commitment. She also acknowledged a scheduling commitment to another teacher, Ms. Hall, and that she had changed her schedule and agreed instead to substitute for Ms. Nelson rather than Ms. Hall. The Petitioner testified that Ms. Hall was not upset but that Ms. Nobles was somewhat upset at having to make an additional call to locate another substitute for that occasion. The Petitioner also acknowledged that Ms. Vinson did have concerns regarding her availability as a substitute but simply believed that Ms. Vinson did not have a factual basis justifying that concern. Thus, by the Petitioner's own acknowledgment, Ms. Vinson did have a concern militating against her calling the Petitioner as a substitute teacher regardless of whether that concern was factually justified. The Petitioner acknowledged that subsequent to the filing of the complaint in November of 1990, she had been called on other occasions to be a substitute teacher at several other elementary schools operated by the Board. She was not aware of any perception in those other schools of any concern among faculty members regarding her availability or reliability as a substitute teacher. The Petitioner has established that she is a member of a protected class, being over the age of 40 years and being of a particular religious faith (Jewish). She has not established, however, that she was either not hired as a substitute teacher or teacher or that she was terminated and that available teaching or substitute teaching positions were instead given to non-Jewish teachers or to teachers under the age of 40 years.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of January, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3911 Petitioner's Proposed Findings of Fact The petitioner's proposed findings of fact are not all amenable to specific rulings since they are intertwined with legal argument and discussions and recitations of testimony. The paragraphs are not numbered and, therefore, to the extent the proposed findings of fact can be ruled upon, the paragraphs are referenced in this Appendix with a number which corresponds to the serial order of the paragraphs as they appear in the Petitioner's post-hearing pleading. Accepted. Accepted, to the extent that it establishes the rationale for the charge of discrimination and retaliation. Accepted. Rejected, as constituting legal argument and not a proposed finding of fact. Rejected, as constituting legal argument and not a proposed finding of fact, and as being a misstatement of the law. Rejected, as not in accord with the preponderant weight of the evidence and as constituting legal argument and not a proposed finding of fact. Accepted. Rejected, as constituting legal argument and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as argument concerning the weight and reliability of testimony and evidence and not a proposed finding of fact. Rejected, as argument concerning the weight and reliability of evidence and not a proposed finding of fact. Rejected, as constituting legal argument and not a proposed finding of fact. Rejected, as constituting legal argument over the weight, quantity and quality of evidence and not a proposed finding of fact. Rejected, as constituting legal argument over the weight, quantity and quality of evidence and not a proposed finding of fact. Accepted, as to the first three sentences but not as to the purported material import of the remainder of the paragraph. Accepted, but not itself a materially dispositive finding of fact. Rejected, as constituting legal argument and argument concerning the quantity and quality of the evidence and as not supported by the preponderant weight of the evidence. Respondent's proposed Findings of Fact 1-24. Accepted. COPIES FURNISHED: Roger Goldberg 675 Tambridge Circle Pensacola, Florida 32503 Joseph L. Hammons, Esquire HAMMONS & WHITTAKER, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Dr. William Maloy Superintendent Escambia County School Board P.O. Box 1470 Pensacola, FL 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact Respondent holds Florida teaching certificate number 600100 which certifies Respondent in the area of elementary education. This certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed as a teacher at North County Elementary School (NCES), one of the schools in the Dade County School District. At the time of the formal hearing, respondent was employed as a classroom teacher at Liberty City Elementary, another of the schools in the Dade County School District. Respondent is an experienced school teacher who was, at the times pertinent to this proceeding, assigned to teach a sixth grade alternative education class at NCES. Wanda McMillon is a Paraprofessional I and was assigned to assist in Respondent's classroom on a full-time basis during the 1990-91 school year. There were approximately 15 students assigned to Respondent's class at NCES. Alternate education deals with children who are behavior problems, have attendance problems, or who are recommended by their counselors to attend alternate education for other reasons. Many of these students come from broken families. Students in Respondent's class frequently engaged in inappropriate and unruly behavior. Examples of this misbehavior included students throwing objects, hitting the Respondent, taking the Respondent's property, and running out of the classroom. As the teacher, Respondent is responsible for maintaining discipline in the classroom. The record is clear that discipline was a serious problem in Respondent's classroom. On November 2, 1990, an incident occurred in Respondent's classroom at NCES involving Respondent and Arthur Brown, a student who had been assigned to Respondent's alternative education class because he was a behavioral problem. Arthur was out of his seat without permission. Arthur did not obey the Respondent's instructions to sit down. Respondent thereafter touched Arthur Brown's shoulder in an attempt to get him to take his seat. Arthur pulled away from Respondent and picked up a plastic chair with metal legs. Arthur held this chair above his head and attempted to hit Respondent with the chair. Respondent grabbed the legs of the chair and a brief struggle for the chair ensued. Respondent took the chair away from Arthur Brown. During the struggle for the chair, Arthur was struck in the forehead by the plastic portion of the chair, but he suffered no meaningful injury. Respondent did not use excessive force in dealing with Arthur. Respondent's defensive reaction to this situation was reasonable and necessary to protect himself and possibly others from this student. 1/ On a date during the 1990-91 school year prior to November 2, 1990 2/, an incident occurred in Respondent's classroom involving Respondent and Vincent Bennett, a disruptive student who had been assigned to Respondent's alternative education class. Vincent was playing near the classroom door when Respondent told him to sit down. When Vincent failed to sit down, Respondent seized Vincent's arm and tried to redirect the student. Vincent began to struggle with Respondent and broke free of his grasp. Vincent began to run around Respondent flailing his arms and hitting Respondent. Respondent reacted by striking Vincent in the upper chest with the back of his hand. Vincent fell to the ground and began to cry. Although Vincent became mad as a result of that incident, there was no evidence that Vincent was injured by Respondent. It is concluded that Respondent's reaction to the attack by Vincent was reasonable and that Respondent did not use excessive force in responding to that situation. 3/ There was testimony that Respondent grabbed Vincent and Arthur by the arm on other occasions. There was, however, no showing that Respondent used excessive force in dealing with Vincent or Arthur on these other occasions or that he engaged in unacceptable conduct. There was testimony that Respondent grabbed or pushed other students in the class, including Lasavo Darkins, Marcus Hollis, Elijah Wadley, and Latraveus Dardy. The evidence established that Respondent's contact with these students occurred while the students were misbehaving and was an attempt to redirect the students. The testimony pertaining to these incidents otherwise lacks factual detail and does not establish that excessive force was used by Respondent. This vague testimony is insufficient to base a finding of wrongdoing on the part of Respondent. There was no evidence that Respondent's method of dealing with these students constituted professional misconduct. There was conflicting testimony as to whether Respondent improperly used profanity in front of the students in his classroom. Based on the greater weight of the evidence, it is found that Respondent did not address his students in profane terms and that he did not otherwise improperly use profanity in front of the students in his classroom. On February 20, 1991, Respondent received a written reprimand from Ruthann Marleaux, the principal of NCES, which provided, in part, as follows: You are hereby officially reprimanded for the following violations of your professional contract responsibilities: Failure to: "Maintain a safe and orderly learning environment...that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Respondent received an annual evaluation of "unacceptable" from his principal for the 1990-91 school year. Respondent testified that this evaluation was subsequently changed to acceptable. Although the subsequent evaluation was not introduced into evidence, the testimony of Respondent is accepted since his testimony is consistent with his continued employment as a teacher in the public schools of Dade County, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1992.
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his age and gender in violation of Section 760.10, Florida Statutes; and (b) whether Respondent retaliated against Petitioner for filing a grievance.
Findings Of Fact Respondent is a public taxing district responsible for educating Bay County's children from pre-kindergarten through high school. Respondent employs roughly 6000 instructional, support, and administrative personnel. Respondent's instructional employees are covered by Respondent's anti-discrimination policy and a collective bargaining agreement (CBA) between Respondent and the local bargaining unit, the Association of Bay County Educators (ABCE). The CBA governs many aspects of the employment relationship between the District and its teachers, including procedures for involuntary transfers and lay offs due to funding issues. Respondent's schools are divided as follows: (a) high school includes ninth grade through twelfth grade; (b) middle school includes sixth grade through eighth grade; and (c) elementary school includes kindergarten ages through fifth grade. Petitioner is a 51-year-old male. He began working for Respondent as a teacher in 1990. For the 2008/2009 school year, Petitioner worked as a teacher at Respondent's Haney Technical High School and Center (Haney). At that time, Haney operated two concurrent programs: a technical education program and a high school program. Petitioner taught physical education and science in the high school program. During the 2008/2009 school year, Respondent decided to eliminate the Haney high school program due to budget cuts and lower student census. Respondent also made the decision to combine the Haney technical education program with an adult education program from another closed school. The Haney high school program was not Respondent's only major adjustment for economic reasons. Respondent also closed five other schools and cut over 100 positions. This process resulted in 154 displaced teachers. All of Haney's high school teaching positions, including Petitioner's, were to be eliminated. Sandra Davis, principal at Haney, asked for voluntary transfers. No one in the high school program volunteered to transfer. Ms. Davis requested that certain high school teachers remain at Haney to teach in the restructured program at Haney. Ms. Davis made the decision to keep the teachers at Haney based on consideration of the projected need in the restructured Haney program for the upcoming year and after considering the teachers' certifications and experience. Teachers with continuing contracts or professional service contracts, who were not to remain at Haney, were placed in the displaced teachers' pool. The pool included Petitioner and all teachers who worked in schools or programs that Respondent intended to eliminate. There was a meeting on April 20, 2009, between Superintendent William Husfelt, the District's Personnel Department, and the displaced teachers in the District. At the meeting Respondent explained the procedures for transferring/reassigning displaced teachers. The displaced teachers were provided with a list of all of Respondent's vacant positions. Respondent then asked each displaced teacher to list their top three positions. Every teacher was granted an interview for their top three positions. Petitioner selected positions at Hiland Park Elementary School, Lynn Haven Elementary School, and Mowat Middle School. According to Petitioner, he listed the middle school because it was close to his home. He was granted and attended interviews for all three positions. Petitioner recently obtained his certification in elementary education. However, he had no recent substantive experience teaching elementary students. The principals who interviewed the displaced teachers selected the people to fill vacant positions at their respective schools on a competitive basis. During one such interview, it became apparent that Petitioner was not as familiar with the method of teaching reading as more experienced teachers and/or even other recently certified elementary education professionals. The vast majority of Petitioner's experience was teaching high school students. He was used to working with students more similar in age and behavior to middle school students. The principals who interviewed Petitioner did not select him to fill any of his top three positions. At the end of this interview/selection process, there were 34 teachers who were not selected for any position, including Petitioner. During the hearing, Petitioner confirmed that he did not believe any discrimination or retaliation took place prior to and through the time of the interviews. Petitioner understood it was a competitive selection process with over 100 applicants. On or about April 28, 2009, Respondent conducted a second meeting with the remaining displaced teachers. At the meeting, displaced teachers were again asked to list their top three choices for placement from the remaining vacant positions. Petitioner listed Hiland Park Elementary, Tommy Smith Elementary, and Lucille Moore Elementary. Superintendent considered the displaced teachers' lists, their certifications and experience, the vacant positions, and other factors. At no time did Respondent promise to place a displaced teacher in a position of the teachers' choice. Superintendent Husfelt placed Petitioner at Everitt Middle School, teaching science. Petitioner was qualified to fill the position, but it was not one of his choices on his second top-three list. Female applicants were appointed to fill all of the positions at the elementary schools. On or about May 11, 2009, Petitioner and Ms. Davis met to discuss Petitioner's informal grievance relative to his involuntary transfer. Ms. Davis denied the informal grievance. On May 26, 2009, Petitioner filed a formal Grievance with Ms. Davis regarding his involuntary transfer/reassignment. She denied the grievance. On June 10, 2009, Petitioner and Superintendent Husfelt's designee, Pat Martin, had a Step II grievance meeting. Respondent subsequently denied Petitioner's grievance. Sometime in June 2009, Petitioner applied for five vacant positions at Hiland Elementary School. There were fifth grade vacancies, two fourth-grade vacancies, and one third-grade vacancies. Petitioner received an interview for these positions. However, all five positions were filled with female teachers. The involuntary transfer did not cause Petitioner to suffer any loss of pay, benefits, or seniority. The new position was approximately five miles away from his former position. During the hearing, Petitioner testified that he researched the Internet to determine the percentage of male teachers in Respondent's elementary schools, kindergarten through grade five. According to Petitioner, four percent of the teachers are male. Respondent presented evidence that approximately 11.58 percent of its elementary school teachers, kindergarten through sixth grade, are male. These raw statistics, standing alone, are not competent evidence that Respondent is intentionally excluding male teachers in its elementary schools. Petitioner admitted during the hearing that he had no evidence regarding the age of Respondent's elementary school teachers, male or female. Therefore, there is no evidence of age discrimination. Petitioner stated at hearing that the transfer to the middle school caused him to suffer an adverse action because industrial air pollution in the area caused him to take more sick leave than when he taught at Haney, about five miles away. This argument has not been considered here because Petitioner raised it for the first time during the hearing and because Petitioner had no competent medical evidence to support his claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 30th day of June, 2010. COPIES FURNISHED: Robert Christopher Jackson, Esquire Harrison, Sale, McCloy, Duncan & Jackson, Chtd. 304 Magnolia Avenue Panama City, Florida Gerry D. McQuagge 1608 Georgia Avenue 32401 Lynn Haven, Florida 32444 Jerry Long, Ed. D. 803 Skyland Avenue Panama City, Florida 32401 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether the School Board policy that requires full-time non-degreed teachers of vocational programs to pass a basic skills test as a condition of being certified by the School Board and as a condition of continued full-time employment in such programs is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, the School Board of Hillsborough County, Florida (School Board or Respondent), employs non-degreed persons to teach certain vocational subjects, including, health occupations and cosmetology. In or about May 1990, the Florida Legislature enacted Section 231.1725, Florida Statutes (2001), which authorized school boards to establish qualifications for substitute teacher, teachers of adult education, and non-degreed teachers of vocational education. By virtue of that provision, which became effective in 1990, non-degreed vocational teachers are not required to obtain state-issued teaching certificates required of teachers of non-vocational subjects in Florida public schools. Pursuant to Subsection 231.1725(1)(c), Florida Statutes (2001), school boards, including Respondent, are required to establish the minimum qualifications for non-degreed teachers of vocational programs. The School Board has established requirements for the employment and certification of persons seeking to be employed as non-degreed teachers of vocational programs. The requirements for certification include requirements not identified as the minimum requirements in Section 231.1725, Florida Statutes (2001). On or about May 22, 1991, the Division of Personnel and Human Resources submitted Agenda Item 3.02 for approval to the School Board. According to the "Agenda Item" form submitted to School Board members, the proposed policy concerned non-degreed full-time vocational instructional personnel, part-time vocational instructional personnel and adult education personnel. The form indicated that the proposed policy was required because Section 231.1725, Florida Statutes (2001), "absolved the state of responsibility of issuing state certificates for non-degreed full-time, part-time vocational and adult education teachers" and each school district was "responsible for determining both eligibility and district certification requirements for non-degreed vocational and adult part-time teachers." The rationale for the proposed policy was that "recent legislation [Section 231.1725, Florida Statutes] has resulted in the need to create a district certification process" for non-degreed full-time personnel, part-time vocational instructional personnel, and adult education instructional personnel. On or about June 11, 1991, the School Board held a public meeting in accordance with its policies and procedures, and state law and approved "the proposed policies concerning certification for non-degreed full-time vocational, part-time vocational, and adult education teachers, as necessitated by recent legislation (F.S. 231.1725) which shifts responsibility of issuing eligibility certificates for such personnel." The 1991 Agenda Item 3.02 consisted of three separate policies that were being recommended for approval by the School Board, for the following separate and distinct categories of employees: non-degreed full-time vocational instructional personnel; part-time vocational personnel; and adult education instructional personnel. The proposed policy and procedures for non-degreed full-time vocational instructional personnel provided the following: Policy: The School Board authorizes the employment of personnel to teach full-time in non-degreed vocational programs to comply with Section 231.1725(1)(c), Florida Statutes. Procedures: An applicant must hold at least a high school diploma or the equivalent and meet the established minimum competency in the area of assignment. The minutes of the June 11, 1991, meeting state that "the proposed rules will now go through necessary process including advertising and public hearing per Administrative Procedures Act," with a notation to "See minutes of July 16, 1991." There is no indication that this process was not carried out as noted. On August 6, 2002, at a regular meeting, the School Board considered and unanimously approved School Board Policy 6.25. Section 2 of School Board Policy 6.25, addresses certification of full-time and part-time teachers of non-degreed programs. The policy provides in pertinent part the following: FULL-TIME TEACHER CERTIFICATION (Non-degreed programs): The Office of Teacher Certification issues an initial 3-year nonrenewable temporary certificate in the same manner that state-certified teachers are certified. During the validity period of this temporary certificate, the teacher must produce documentation of the following to qualify for the professional certificate: Successful completion of the district's Preparing New Educators (PNE) Program. Successful completion of the State Professional Educator's Exam. A minimum of three years successful teaching experience. Successful completion of the (4) district certification courses listed below or their university equivalents. [1.] Surviving the First Year of Technical Teaching [2.] Special Teaching Methods for Technical Teaching [3.] Special Needs Student for Technical Education [4.] Philosophy, Practices and Management of Technical Education. Verification of basic skills by successful completion of the Test of Adult Basic Education (TABE) at or exceeding the profile established for the area of certification, or successful completion of another recognized test of basic skills accepted for state-certificated teachers. Upon receipt of the above documentation and of the appropriate application fee, the Office of Teacher Certification issues the full-time technical and career education teacher the 5-year Professional District Certificate that is valid for five years from July 1st of the school year it was issued. This certificate must be renewed in the identical manner that a state-issued certificate is renewed. According to School Board Policy 6.25, the School Board's requirements for certification as a non-degreed teacher of vocational programs include the successful completion of the Test of Adult Basic Education ("TABE") or successful completion of another recognized test of basic skills accepted for state certificated teachers, and successful completion of the Professional Education Examination. The School Board does not require the passage of these tests in order to meet the minimum qualifications for initial employment. The executive summary which describes the purpose of the superintendent's recommendation regarding School Board Policy 6.25, states in pertinent part the following: In 1990, by legislative action, districts assumed responsibility and authority for establishing employment and credentialing qualifications for teachers of non-degreed vocational programs and of part-time adult programs. The School Board originally adopted procedures in 1991 to address these matters. Various improvements and refinements to these procedures, many of which have paralleled provisions provided by statute to state-certificated teachers, have been adopted as sound practices over the years. The enclosed manual, "Guide to Hiring Teachers: Technical & Career and Adult & Community Education Programs," reflects these improvements and modifications. In accordance with School Board Policy 6.25, the School Board issues three-year temporary teaching certificates to full-time non-degreed vocational teachers upon their hiring. During the first three years that a full-time non-degreed vocational teacher is employed, the teacher must produce the documentation enumerated in Section 2 of School Board Policy 6.25 and listed in paragraph 10 above, to qualify for the district professional certificate. The School Board's requirement that non-degreed full- time vocational teachers successfully complete a basic skills test and the Professional Educator Examination is not a requirement of initial employment, but is required in order to obtain a district teaching certificate. The district-issued teaching certificate is a prerequisite for a non-degreed vocational teacher to continue full-time employment in such capacity. Non-degreed vocational teachers employed by the School Board on a full-time basis for three years may not continue such full-time employment unless they obtain a district-issued professional certificate by meeting the requirements of School Board Policy 6.25, which includes successfully completing the basic skills test. The School Board employs non-degreed vocational teachers on a part-time basis. Part-time non-degreed vocational teachers are not required to take a basic skills test under the School Board's current policy, and those teachers were not required to do so prior to 1990, when the State issued teaching certificates to this category of teachers. Pursuant to the School Board's current policy, non- degreed vocational teachers may be hired by the School Board to teach vocational courses on a part-time basis, and there is no requirement that they ever take or successfully complete a basic skills test. However, in order to continue full-time employment as a non-degreed vocational teacher beyond the initial three years of employment, the teacher must successfully complete the basic skill test. If the non-degreed vocational teacher fails to do so, that individual may no longer work as a full-time non- degreed vocational teacher. Petitioners are non-degreed teachers of vocational subjects who were formerly employed by the School Board as full- time, non-degreed teachers of vocational programs. Petitioners are affected by the challenged rule because each has been deemed ineligible for a district-issued certificate and for continued employment as a non-degreed teacher of vocational programs due to his or her failure to comply with one or more of the School Board's requirements for certification as a non-degreed teacher of vocational programs. Here, Petitioners failed to successfully complete at least one part of the required basic skills test. Non-degreed vocational teachers who are terminated or not rehired as full-time teachers because they failed to successfully complete the basic skills test may be employed by the School Board as part-time vocational teachers or as substitute teachers. The School Board employs substitute teachers in vocational subjects in the same fashion it employs substitute teachers for academic subjects. The only requirement to become a substitute teacher is a high school diploma and the completion of a ten-day training program. Although Petitioners failed to successfully complete the basic skills test requirement of School Board Policy 6.25, they are eligible for employment as part-time non-degreed vocational teachers or as substitute teachers. Petitioner McNeeley is currently employed as a part-time vocational teacher, and Petitioner Kennedy is employed as a full-time substitute teacher in a vocational program. Prior to 1990, non-degreed vocational teachers were employed in the same manner as degreed teachers. During that time period, the State of Florida issued certificates to both degreed teachers and non-degreed teachers. The State of Florida required all teachers, degreed and non-degreed, to take and pass the FUCOSE exam, which later became the Florida Teachers Certification Exam, ("FTCE"). From 1990 through 1991, Janice Velez, general director of Human Resources for the Hillsborough County School District, was part of a consortium of Florida school districts that worked together to develop a policy for the employment and certification of non-degreed vocational teachers. As a result of the work of the consortium, the School Board developed its current policy and procedures, which require non-degreed vocational teachers to take and pass a basic skills test.
The Issue Whether Respondent’s alleged conduct is a violation of Pinellas County School Board Policy 8.25 and/or Section 231.36, Florida Statutes, and is just cause for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Respondent, Reginald K. Reese, is a teacher certified by the State of Florida, holding a professional service contract with Petitioner, the Pinellas County School Board (School Board). Respondent was employed as a substitute teacher by the School Board in August 1988. Respondent was hired as a full- time teacher in the Pinellas County School System in August 1989, and has been a teacher in the district since that time. At all times relevant to this proceeding, he was employed as a teacher at Riviera Middle School. Throughout his tenure with the School Board, Respondent's teaching career has been exemplary and he has consistently received good evaluations. It is undisputed that Respondent is held in high regard and considered an excellent teacher by many parents of children he has taught and by his colleagues and administrators with whom he has worked. Respondent is viewed by his former principal and current assistant principals as an excellent educator. His co-workers view him as an excellent teacher, the epitome of quality, a wonderful teacher, top-notch, one of the best, innovative, creative, compassionate with children, an inspiration to students, and one of the teachers students come back to the school to see. Two parents whose children were taught by Respondent several years ago believe that Respondent's work and effort as a teacher had turned their children around and made them responsible, productive adult members of society. Prior to the recommended disciplinary action which is the subject of this proceeding, Respondent has never been the subject of disciplinary action by the School Board or any of its administrators. On Wednesday, November 10, 1999, at about 1:00 p.m., Respondent parked his vehicle at the entrance of the south trail near the mangrove area in the vicinity of 4th Street and 115th Avenue in St. Petersburg, Florida. Respondent then exited his vehicle and entered the south trail of the mangrove area. It is undisputed that while in the mangrove area, Respondent engaged in a sexual activity, specifically oral sex and masturbation, with two other adults. The contact between Respondent and the other individuals was consensual and involved adults who were strangers to each other. This sexual activity was observed by Corporal Ward of the Pinellas County Sheriff’s Office. The mangrove area in which the incident occurred was not clearly visible from the street. However, the area is considered a public place and is next to a busy four-lane road. Moreover, within that vicinity, people engage in recreational activities, including sunbathing, fishing, and boating. After the sexual activity had concluded, Respondent was arrested at the scene of the incident described in paragraph 7 by an officer with the Pinellas County Sheriff’s Office who had observed the acts. As a result of the incident, Respondent was charged with committing an unnatural and lascivious act and exposure of sexual organs. Respondent pled nolo contendere to exposure of sexual organs and an Order Withholding Adjudication of Guilt was entered on December 30, 1999. Further, an Order Withholding Adjudication of Guilt on a Plea of Nolo Contendere to the charge of unnatural and lascivious act was entered on December 30, 1999. An Order to Seal Criminal History Record was entered on January 4, 2001. On the advice of counsel, Respondent did not report his arrest, the charges filed against him, or the orders entered resolving the criminal matters to School Board officials at or near the time they occurred. Respondent reported his arrest in a letter dated June 10, 2001, to the School Board’s Office of Professional Standards, when he applied for renewal of his teaching certificate. Upon receipt of the June 10, 2001, notification of Respondent’s arrest, the School Board investigated the matter. Following the investigation, on July 18, 2001, Respondent was notified in a certified letter that Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, would be recommending to the School Board that Respondent be dismissed from employment. The basis of the recommendation of dismissal is that the conduct engaged in by Respondent on November 10, 1999, violated Pinellas County School Board Policy 8.25 and the Code of Ethics and the Principles of Conduct of the Education Profession in Florida. It was alleged that these violations constitute just cause for Respondent's dismissal pursuant to Section 231.36, Florida Statutes. Dr. Hinesley's recommendation of dismissal is based on several factors. First, Dr. Hinesley believes that the conduct engaged in by Respondent on November 10, 1999, was immoral in that it took place in a public area. Second, Dr. Hinesley believes that dismissal of Respondent is warranted because Respondent's actions were inappropriate and embarrassed the school system and the school. Finally, Dr. Hinesley believes that the conduct engaged in by Respondent was inappropriate and impaired his effectiveness as a teacher in the Pinellas County School District. Information regarding the subject incident has not been widely disseminated because the record was sealed by court- order. However, all of the witnesses testifying in support of Respondent were advised of the details of the incident. In light of this knowledge, teachers who have worked with Respondent, a former administrator who supervised Respondent, former students of Respondent, parents of Respondent's former students, and community members supported Respondent. While admitting that Respondent made a mistake or had a lapse in judgment, they believe that his exemplary teaching record and dedication to students and to the profession will allow him to overcome the challenges that may arise if and when the incident becomes public. Many of them also believe that his service to the Pinellas County School District community will not be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 2nd day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of January, 2002. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Anna L. Elam, was not offered employment as an elementary school teacher and was therefore discriminated against by the Respondent, Flagler County Schools, on the basis of her age.
Findings Of Fact The Petitioner filed an Amended Charge of Employment Discrimination with the Florida Commission on Human Relations (“Commission”) on February 15, 2003. The Commission investigated the amended complaint and issued a determination of no cause that discrimination had occurred. The Petitioner timely requested a formal administrative hearing and the petition was duly referred to the Division of Administrative Hearings by the Commission. Upon notice, this matter was set for formal hearing on December 18, 2003, at the Flagler County Courthouse in Bunnell, Florida. Following a Motion for Continuance filed by the Respondent, the final hearing was reset for February 17, 2004, at the same location in Bunnell, Florida. The Petitioner called and spoke with Melissa Young, assistant to Administrative Law Judge P. Michael Ruff, and to Claudia Lladó, assistant to the undersigned, to inform them that she had no legal counsel and was therefore not going to appear at the February 17, 2004, hearing. Both assistants informed the Petitioner that she should attend the hearing and inform the undersigned personally as to her intention of whether to proceed. The undersigned convened the hearing in Bunnell, Florida, on February 17, 2004. Counsel for the Respondent appeared at the hearing along with approximately five witnesses for the Respondent who intended to testify. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner appeared at the hearing or within 45 minutes of the time scheduled for the hearing, 10:00 a.m. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner submitted any evidence via deposition, sworn testimony or documentary evidence prior to, at the time of, or subsequent to the hearing on February 17, 2004. Other than the calls to the assistants to the judges, neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner has contacted the undersigned or his assistant subsequent to the hearing on February 17, 2004.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, arguments of the Respondent and the fact that the Petitioner voluntarily absented herself from the hearing, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 19th day of February, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anna L. Elam 23 Patric Drive Palm Coast, Florida 32164 Andrew B. Thomas, Esquire 1625 Lakeside Drive Deland, Florida 32720 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF 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 14th day of July 1987.
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
