The Issue Whether the Respondent should be dismissed from her employment as a teacher because of incompetency, as alleged in the Petitioner's letter to the Respondent dated November 16, 1999, and in the Notice of Specific Charges filed with the Division of Administrative Hearings on December 22, 1999.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). At the times material to this proceeding, Ms. Weinstein was an elementary school teacher employed under a continuing contract by the School Board and assigned to Miami Heights Elementary School ("Miami Heights Elementary"). Ms. Weinstein has been employed by the School Board since 1968. Ms. Weinstein is a member of United Teachers of Dade and is governed by the Contract Between the Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). During the 1998-1999 school year, Ms. Weinstein taught a second grade class at Miami Heights Elementary. She was placed on alternate assignment on February 9, 1999, and, in March 1999, she took medical leave, which was approved by the School Board. On October 13, 1999, Ms. Weinstein was advised that she must either resign or retire from her position as a teacher with the School Board by October 20, 1999, and that, if she did not do so, a recommendation would be made to the School Board at its November 17, 1999, meeting that she be dismissed from her employment. The decision that Ms. Weinstein could no longer teach in the Miami-Dade County public school system was based on two grounds. First, she had received an unacceptable evaluation for the 1998-1999 school year based on the determination that her teaching performance was not acceptable and that she had failed to remediate the deficiencies identified in the TADS formal observations conducted in September and November 1998 and in January 1999. Second, two psychologists had found Ms. Weinstein medically unfit for duty as an elementary school teacher as a result of psychological evaluations conducted in January 1999 and August 1999. Performance as a teacher Parent and teacher complaints Blanca M. Valle became principal of Miami Heights Elementary in June 1997. Soon after she assumed her duties, Ms. Valle received a letter from a parent complaining that Ms. Weinstein allegedly told her son he was "stupid"; the parent requested that her son not be assigned to Ms. Weinstein's class for the upcoming school year. At the time, Ms. Weinstein was teaching in a summer program at South Miami Heights Elementary School. Although the charge made by the parent was not substantiated, 1/ the child was assigned to a different teacher for the summer program, and Ms. Valle made sure that the child was not assigned to Ms. Weinstein's class for the 1997- 1998 school year. Ms. Valle assigned Ms. Weinstein to teach a kindergarten class during the 1997-1998 school year. Ms. Valle received several letters from parents in September 1997 complaining about Ms. Weinstein's treatment of their children. One parent complained that Ms. Weinstein ignored her son when he raised his hand to participate in class; another parent asked that his child be assigned to another kindergarten class because the child felt intimidated and frightened in Ms. Weinstein's class; another parent complained that Ms. Weinstein was not aware that her daughter was lost in the cafeteria for 45 minutes after lunch; another parent complained that her son's school supplies were stolen from the classroom, his homework was not collected by Ms. Weinstein, and his shirt was cut in several places by another student during the time he was under Ms. Weinstein's supervision. As a result of the complaints, Ms. Valle assigned Ms. Weinstein in October 1997 to teach a third grade class that had just been created at Miami Heights Elementary to accommodate a greater-than-expected number of students. In addition to re- assigning Ms. Weinstein, Ms. Valle assigned another teacher to act as her mentor, assigned the grade level chairperson to work closely with her, and referred her to the School Board's Employee Assistance Program. 2/ After Ms. Weinstein was transferred, Ms. Valle received several letters from parents of third grade students complaining about Ms. Weinstein and asking that their children be transferred to another class. One parent complained that, during a field trip the parent was chaperoning, Ms. Weinstein spent an inordinate amount of time berating students for misbehavior, to no effect; she lacked control of the class, and she was disorganized; another parent complained that, during a conference with Ms. Weinstein and Ms. Clayton, Ms. Weinstein lied about sending progress reports home to the parent and said that her daughter was crazy. During the 1998-1999 school year, Ms. Weinstein was assigned to teach a second grade class. Ms. Valle received several letters from parents complaining about Ms. Weinstein and requesting that their children be transferred to another class. Several parents stated that they wanted their children transferred to another class because they had received negative reports from other parents regarding Ms. Weinstein. One parent complained that her son cried every morning and did not want to go to school, that Ms. Weinstein told the parent that her son lied to the parent and to himself, and that Ms. Weinstein did not have a professional appearance; another parent complained that Ms. Weinstein ignored her daughter when she raised her hand to turn in her homework. Crystal Coffey was the assistant principal at Miami Heights Elementary during the 1998-1999 school year, which was her first year in the position at Miami Heights Elementary. It was not unusual for parents to approach her and ask that their child be transferred out of Ms. Weinstein's class. At the end of the 1998-1999 school year, when Ms. Weinstein was on medical leave, Ms. Valle received letters from three teachers complaining about Ms. Weinstein. The second grade level chairperson during the 1998-1999 school year complained that Ms. Weinstein was very difficult to work with and did not grasp the curriculum or understand how to present lessons. Another teacher commented that she had observed Ms. Weinstein engage in a pattern of unprofessional and often bizarre behavior over the years. A teacher who team-taught language arts with Ms. Weinstein wrote that, among other things, Ms. Weinstein would not let students go to the rest room, that on two occasions Ms. Weinstein sat at her desk during class and ate a chef salad and a tuna salad with her hands, and that Ms. Weinstein would put a "bad behavior" check mark beside children's names for the most minor offenses. Observations of Ms. Weinstein's teaching performance Ms. Weinstein's performance as a teacher was rated acceptable overall and acceptable in every performance category in each annual evaluation from the 1978-1979 school year 3/ through the 1997-1998 school year. Ms. Valle signed Ms. Weinstein's Teacher Assessment and Development System ("TADS") 4/ Annual Evaluation for the 1997-1998 school year based on a formal TADS observation conducted on April 13, 1998, by the then-assistant principal of Miami Heights Elementary, Alice Clayton. Ms. Clayton prepared a CAI-Post Observation Report for the April 13, 1998, TADS observation rating Ms. Weinstein's performance acceptable in each category assessed. She also rated Ms. Weinstein's performance acceptable for each indicator in each category. Ms. Valle conducted informal observations of the classroom performance of each of the teachers in Miami Heights Elementary; it was her practice to visit all of the classrooms in the school at least once a day. During her informal observations of Ms. Weinstein's classroom performance, she observed students who were not on task, discipline problems, and a general lack of teaching and learning in the classroom. Ms. Coffey made it a practice to informally observe each teacher's classroom at least three times each week. Ms. Coffey informally observed Ms. Weinstein's classroom an average of three times each week during the 1998-1999 school year. At the beginning of the school day, Ms. Coffey would often find Ms. Weinstein sitting at her desk in the classroom eating her breakfast or looking "spacey," apparently unaware that the classroom door was open and that a number of parents were trying to talk with her and/or trying to get their children organized for the day. On September 18, 1998, Ms. Valle, who was trained in the use of TADS, conducted a formal TADS observation of Ms. Weinstein's classroom performance and completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Valle rated Ms. Weinstein's classroom performance acceptable in three categories listed on the CAI Post-Observation Report: knowledge of subject matter, teacher-student relationships, and assessment techniques. Ms. Valle rated Ms. Weinstein unacceptable in three categories on the CAI Post-Observation Report: preparation and planning, classroom management, and techniques of instruction. The Record of Observed Deficiencies contains numerous references to Ms. Weinstein's failure to use verbal or non-verbal techniques to redirect students who were off task; rather, Ms. Valle observed that Ms. Weinstein ignored students who were talking and playing and generally behaving poorly, and she seemed to be unaware of the students' behavior in her classroom. Ms. Valle also observed that Ms. Weinstein ignored students who raised their hands with questions or to contribute to the class discussion, did not provide background information for her lesson or any explanation of how to do the problems assigned, did not acknowledge that many of the children were confused by the lesson, and did not provide closure to the lesson. On November 16, 1999, Ms. Coffey, who was trained in the use of TADS, conducted a formal TADS observation of Ms. Weinstein's classroom performance and completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Coffey rated Ms. Weinstein's classroom performance acceptable in two categories listed on the CAI Post-Observation Report: knowledge of subject matter and assessment techniques. Ms. Coffey rated Ms. Weinstein unacceptable in four categories on the CAI Post-Observation Report: preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Ms. Coffey observed that Ms. Weinstein did not follow her lesson plan and went beyond the time allotted for the lesson, leaving the teacher who was to teach the next lesson knocking at the classroom door for over five minutes. Ms. Coffey noticed that students already had completed the workbook page for the lesson, and, in Ms. Coffey's opinion, Ms. Weinstein was not teaching a new lesson during the observation but one she had already taught. Ms. Coffey observed that Ms. Weinstein did not use any verbal or non-verbal techniques to redirect the many students who were off task and that she put check marks for bad behavior and stars for good behavior beside students' names, which she had written on the chalk board, without providing any explanation to the students and often for no discernable reason. Ms. Coffey also observed that Ms. Weinstein often ignored students' inappropriate behavior, did not monitor whether the students were learning the lesson, did not provide feedback to the students, and did not respond to students who had questions. A Conference-for-the-Record was held on December 8, 1998, to discuss Ms. Weinstein's September and November performance assessments and related matters and her future employment status with the School Board. Ms. Valle and Ms. Coffey attended the conference, as well as Ms. Weinstein and two union stewards. Ms. Valle discussed the two TADS formal observations with Ms. Weinstein, as well as the prescriptive activities assigned in the observation reports and ways in which Ms. Valle and Ms. Coffey would assist her to improve her teaching performance. Ms. Weinstein was advised that disciplinary action would be considered if her performance did not improve. On January 25, 2000, Ms. Valle conducted her second formal observation of Ms. Weinstein's classroom performance, and she completed both a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement with respect to the observation. Ms. Valle rated Ms. Weinstein's classroom performance acceptable in three categories listed on the CAI Post-Observation Report: preparation and planning, knowledge of subject matter, and teacher-student relationships. Ms. Valle rated Ms. Weinstein unacceptable in three categories on the CAI Post-Observation Report: classroom management, techniques of instruction, and assessment techniques. At the time of the second observation, Ms. Weinstein had not remedied many of the unsatisfactory teaching behaviors Ms. Valle had observed in her formal observation in September 1998. The lesson observed by Ms. Valle on January 25, 1999, was on the concepts of solid, liquid, and gas, but Ms. Valle observed that Ms. Weinstein did not use any supplemental materials or hands-on activities to teach the students, nor did she provide necessary background information or closure for the lesson. Ms. Valle observed that Ms. Weinstein did not call on students who had raised their hands with questions or to contribute to the class discussion, did not provide feedback to help students who were confused by the lesson, failed to use verbal or non-verbal techniques to redirect students who were off task, and ignored students who were off task, seemingly unaware of their behavior. In addition, Ms. Valle found that Ms. Weinstein had virtually no documentation to support grades for the students: As of January 25, 1999, the most recent grade recorded in Ms. Weinstein's grade book was for December 9, 1998, and there were no assessments and very little work contained in the students' folders. On June 8, 1999, Ms. Valle prepared a memorandum regarding Ms. Weinstein's TADS Annual Evaluation for the 1998- 1999 school year, in which Ms. Valle rated Ms. Weinstein unacceptable in every category of classroom assessment; Ms. Valle rated Ms. Weinstein acceptable in professional responsibilities. The memorandum was prepared in lieu of conducting a conference-for-the-record because Ms. Weinstein was on extended medical leave. In the memorandum, Ms. Valle advised Ms. Weinstein that her performance was unacceptable because the deficiencies identified in the formal TADS observations in September and November 1998 and January 1999 had not been remediated. Ms. Valle advised Ms. Weinstein that the assessment process would continue when she returned to Miami Heights Elementary. Had Ms. Weinstein not gone on medical leave in March 1999, she would have been entitled to at least one, and perhaps two, formal TADS observations conducted by a School Board administrator other than Ms. Valle and Ms. Coffey. As it was, no external TADS observation was conducted, and the TADS assessment process was not completed. Fitness for duty as a teacher In a memorandum to the Office of Professional Standards dated January 13, 1999, Ms. Valle requested that Ms. Weinstein be given a fitness evaluation because she had observed Ms. Weinstein engage in behavior during the 1998-1999 school year that Ms. Valle considered unusual. Ms. Valle attached to the memorandum letters that Ms. Weinstein had prepared requesting that the parents of various students sign a statement "for her autograph book" to the effect that "Ms. Weinstein is a good teacher"; Ms. Weinstein passed the letters out to students and parents and disrupted classes when she took letters to other teachers and asked that they give them to the students whose names she had written on the letters. Both parents and teachers complained to Ms. Valle about these letters. Ms. Valle observed Ms. Weinstein engage in other behavior that Ms. Valle considered unusual: Ms. Weinstein came to school dressed in a manner that Ms. Valle considered inappropriate, and her hair was often untidy; during the winter, Ms. Weinstein sometimes wore a hat pulled down to her eyes the entire day; during a meeting with Ms. Valle and others, Ms. Weinstein took a pair of leopard-print gloves out of a box she carried and put on the gloves; Ms. Weinstein attended a PTA meeting wearing a black see-through skirt and blouse; Ms. Weinstein gobbled her food and ate food such as tuna salad with her hands; Ms. Weinstein walked in the school halls with a blank look on her face. In addition, Ms. Valle noted that Ms. Weinstein had excessive absences from school. Ms. Coffey observed Ms. Weinstein engage in behavior she considered unusual: When she had conferences with Ms. Weinstein, Ms. Weinstein would not look at her or respond to questions or statements except to say that "it's not true"; Ms. Weinstein wore a fur-like hat and long leopard gloves on hot days and sometimes walked around school under an umbrella when it was not raining; and Ms. Weinstein often had a "spacey" look and seemed not to understand what was being said to her. In response to Ms. Valle's request that Ms. Weinstein be referred for a fitness evaluation, a Conference-for-the- Record was held in the Office of Professional Standards on January 27, 1999, to consider, among other things, Ms. Weinstein's performance assessment and her medical fitness to perform her assigned duties. The Summary of the Conference- for-the-Record reflected that Ms. Weinstein was advised that her absences were considered excessive because she used more sick leave than she had accrued, and the two formal TADS observations completed in September and November 1998 were discussed. Ms. Weinstein acknowledged that the School Board had the right to require that she be evaluated to determine her fitness for duty, and she chose to be evaluated by Dr. Larry Harmon, whose name appeared on a list of psychologists approved by the School Board. Ms. Weinstein appended a two-page response to the Summary of the Conference-for-the-Record in which she admitted to some of the behaviors identified by Ms. Valle and Ms. Coffey but disputed the conclusion that these behaviors were unusual. Dr. Harmon's evaluation - January 1999 At the request of the School Board's Office of Professional Standards, Larry Harmon, who is a licensed clinical psychologist, performed a fitness-for-duty evaluation of Ms. Weinstein on January 28, 1999. In evaluating Ms. Weinstein, Dr. Harmon conducted a clinical interview and a mental status examination, administered several psychological tests, consulted with other mental health professionals, and reviewed materials provided to him by the School Board. Dr. Harmon issued a report dated March 10, 1999, in which he deferred his diagnosis with respect to Axis I "Clinical Disorders and Conditions." 5/ He diagnosed Ms. Weinstein with "Personality Disorder, Not Otherwise Specified" with respect to Axis II "Personality Disorders," 6/ commenting that she exhibited moderate to severe patterns of defensiveness, denial, projection, blame, rationalization, distorted thinking, suspiciousness, selective listening, inability to process and accept feedback, poor judgement, and lack of insight. Dr. Harmon deferred his diagnosis with respect to Axis III "Physical Disorders and Conditions" to her physician. Dr. Harmon concluded that Ms. Weinstein was not fit for duty as an elementary school teacher. This conclusion was based on his assessment that [h]er impaired interpersonal behavior and unacceptable work performance in Preparation and Planning, Classroom Management, Techniques of Instruction, and Teacher- Student Relationships is likely to continue and be considered below acceptable standards. Based on this assessment, there is insufficient supporting information to clear her to return to work. . . . Dr. Harmon's assessment that her interpersonal behavior was impaired was based on his observations that Ms. Weinstein was extremely defensive and almost in a state of denial that there were any problems with her interactions and performance; that she had difficulty processing information conveyed to her during the clinical interview and mental status examination; that her judgment was impaired and her problem-solving ability reduced; and that she had a low level of insight into the effect of her behavior on others. Dr. Harmon found that Ms. Weinstein generally had serious difficulties with job tasks requiring interpersonal interactions and stated that individuals with her [Ms. Weinstein's] level of defensiveness, distorted thinking, suspiciousness, denial, selective listening, inability to engage feedback, poor judgement, and lack of insight are likely to evidence significant work difficulties, especially if she is under stress. . . . [T]here appears to be a probability of significant risk that her inadequate interpersonal skills and inability to benefit from feedback will adversely affect her work performance . . . . Among other things, Dr. Harmon recommended in his report that Ms. Weinstein be placed on medical leave for at least one month to allow her to receive intensive mental health treatment to help her improve her interpersonal skills and work performance and that she participate in psychotherapy sessions and follow the recommendations of her psychotherapist. Another Conference-for-the Record was held in the Office of Professional Standards on March 17, 1999, for the purpose of discussing Ms. Weinstein's medical fitness to perform her assigned duties. At the time, Ms. Weinstein was temporarily assigned to the Region VI Office, where she had been placed in early February 1999. Dr. Harmon's report was reviewed at the conference with Ms. Weinstein and the union representative, and the recommendations in his report were accepted by the School Board as conditions for Ms. Weinstein's continued employment as follows: Obtain medical clearance from the Board approved evaluator to return to work within 29 working days of this conference or implement procedures for Board approved medical leave. Participate in psychotherapeutic sessions on a regular basis to be monitored by personnel from the District's support agency. Follow all recommendations of the health care professionals. Sign a limited Release and Exchange of Information for all of your mental health professionals which restricts the release and exchange of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to your fitness for duty determination. Upon the recommendation of the District's support agency, which will be based upon discussions with your treating mental health professionals, a re-evaluation will be scheduled for you with Dr. Harmon. Ms. Weinstein was advised that, if she did not comply with Dr. Harmon's recommendations, the School Board would be compelled to take disciplinary measures against her including suspension, demotion, or dismissal. In the School Board's opinion, Ms. Weinstein was not ready to assume her duties after 30 days, and she subsequently took School Board-approved medical leave through the end of the 1998-1999 school year. Dr. Feazell's evaluation - March 1999 After the School Board received Dr. Harmon's evaluation report, Ms. Weinstein sought a second opinion on her fitness to carry out her duties as a second grade teacher with the Miami-Dade County school system. David A. Feazell, a licensed psychologist, conducted a psychological evaluation of Ms. Weinstein on March 22 and 26, 1999, and prepared a report summarizing his findings. Dr. Feazell spent approximately two hours with Ms. Weinstein in a clinical interview and another two hours administering psychological tests, which included personality and intelligence tests. Ms. Weinstein provided Dr. Feazell a copy of Dr. Harmon's report; he did not have access to the information provided to Dr. Harmon by the School Board, although he had access to the summary of the information contained in Dr. Harmon's report. Dr. Feazell noted in his evaluation report that, during the clinical interview, Ms. Weinstein's account of her employment situation was relevant and detailed and consisted of explanations for her behavior and rebuttal of the complaints made about her. Ms. Weinstein believed that she had made an unduly negative impression on Dr. Harmon because she was ill at ease and defensive in answering his questions. The psychological tests given by Dr. Feazell revealed that Ms. Weinstein's MMPI-2 [Minnesota Multiphasic Personality Inventory-2] profile is defensive, going beyond that which is commonly seen in fitness for duty evaluations. She denies emotional discomfort and vulnerability, as well as common place human faults and frailties. She presents an unusually positive self-image, describes herself as self-controlled and quite socially responsible, and reports unusually low levels of depression or anxiety. In MMPI-2 item responses, she admits minimal social anxiety and characterizes herself as very outgoing, despite describing herself in the interview as shy. Individuals with Ms. Weinstein's MMPI-2 and Rorschach profiles are typically inclined to deny problems and not to have a high level of introspection or insight into their own feelings. They can be simplistic or inflexible into [sic] their approach to problems and tend to see things too much in terms of how others do not understand them or treat them unfairly. Ms. Weinstein actually shows several signs of a particular need for the approval and affection of others, so that she may find situations quite disconcerting in which others evaluate, criticize, or take a demanding, skeptical view of her. In terms of judgment, Ms. Weinstein is capable of thoughtful, perceptive analysis of situations. However, she also appears likely to overlook or misinterpret important details. Her judgment can be inconsistent, especially under conditions of emotional stress. She seems to react strongly to emotional stimuli. She could benefit from the support or guidance of others in learning to stop and to look at a situation from other points of view before she draws unwarranted or inaccurate conclusions. It is noted that testing shows no bizarre thinking or major distortion of judgment. Based on his clinical interview and testing of Ms. Weinstein, Dr. Feazell diagnosed her with an Axis I clinical diagnosis of "Adjustment Disorder with Mixed Disturbance of Emotions and Conduct in the face of occupational and personal stress." Dr. Feazell did not make an Axis II diagnosis, noting that "[a]lthough personality patterns predispose her to respond with some defensive inflexibility to certain interpersonal stresses, there may not be sufficient evidence of a formal personality disorder." Dr. Feazell did note, however, that, at the time of his evaluation, Ms. Weinstein was inclined to overreact to stress and to misunderstand things and form incomplete conclusions when she was under stress. Dr. Feazell finally observed that Ms. Weinstein needs continuing psychotherapy to develop better ways to recognize and deal with uncomfortable feelings, to learn better skills for hearing and taking in feedback and information without over-reacting and selectively misunderstanding it, and to learn better awareness of how her won style of judgment and interaction can hinder her problem solving under pressure. In Dr. Feazell's opinion, Ms. Weinstein was fit for duty at the time he evaluated her in March 1999 "as long as she has the support of treatment while working out her job issues with her principal. It is recommended that Ms. Weinstein return to work with continuing treatment." According to Dr. Feazell, Ms. Weinstein's prognosis is fairly good if she continues in treatment. Dr. Gibb's evaluation - August 1999 Ms. Weinstein was referred by the School Board for a follow-up fitness-for-duty evaluation, which was performed by Charles C. Gibbs on August 13, 1999. Dr. Gibbs conducted a clinical interview with Ms. Weinstein, administered several psychological tests, reviewed records provided by the School Board, and reviewed the evaluations of Ms. Weinstein performed by Dr. Harmon, Dr. Feazell, and Dr. Maurer, a psychologist who evaluated Ms. Weinstein at her request in June and July 1999. Dr. Gibbs tried to contact Ms. Weinstein's psychotherapist, Tyrone Lewis, but Mr. Lewis did not return several telephone calls. In Dr. Gibbs' opinion, Ms. Weinstein's most likely diagnosis would be an Axis I clinical disorder, such as depression, anxiety, or an adjustment disorder. Dr. Gibbs concluded that Ms. Weinstein was not fit to return to her job duties as an elementary school teacher as of August 1999, observing in the report of his psychological evaluation that [c]urrent test results and clinical data indicate that Ms. Weinstein is excessively defensive, guarded, substitutes fantasy for reality in stressful situations and she is plagued with poor judgment given her tendency to make decisions based on inadequate information. Furthermore she is not introspective and lacks insight into her behavior. As such she tends to project blame onto others and minimize the effects of her behavior on those in her environment. The aforementioned summary of the data in my professional opinion would make it difficult for Ms. Weinstein to counsel students when adjustment and/or academic problems arise. Further concern is raised in that she tends to make poor decisions based on inadequate information. Working with children requires a great deal of patience and as noted by results from Dr. Maurer with which I concur she is in a constant state of stimulus overload. Thus such typical stressors such as managing classroom rules and behavior of students will likely result in Ms. Weinstein becoming overwhelmed. Additionally, her unconventional and egocentric style will not allow her to meet the changing and challenging emotional needs of elementary children. I am further concerned that her defensiveness will prevent her from benefiting from constractive [sic] criticism which will impair her participating in professional meetings and being able to put into action new information obtained from conferences and inservice classes. Dr. Gibbs noted in his report that Dr. Feazell and Dr. Maurer had both concluded that Ms. Weinstein was fit for duty but that they had not reviewed the materials he received from the School Board. Dr. Gibbs also was concerned that Ms. Weinstein had some mild organic impairment, and he recommended that she have a full neuropsychological evaluation. He further recommended that Ms. Weinstein continue in therapy for at least three months before having another evaluation of her fitness for duty and that, if she were at some point allowed to resume her duties as an elementary school teacher, she "team teach with another professional for 3 months prior to teaching on her own." Ms. Weinstein's psychotherapy treatment Ms. Weinstein has been in treatment with Tyrone Lewis, a psychotherapist, since January 1999. Mr. Lewis sees Ms. Weinstein once a week and sometimes once every two weeks; he engages in what he describes as "supportive psychotherapy" with Ms. Weinstein, which is designed to provide her with insight into her current situation and to help relieve her depression and anxiety. Currently, he is working with Ms. Weinstein to help her deal with the uncertainty about her job and the possibility that she will not work as a teacher. At the time of the hearing, Mr. Lewis was of the opinion that Ms. Weinstein was much improved, specifically with respect to her cognitive skills, her depression, her anxiety, and her awareness of her current life situation. Final Conference-for-the Record A Conference-for-the-Record was held at the Office of Professional Standards on October 13, 1999, to review Ms. Weinstein's performance assessment and her medical fitness to perform assigned duties. Ms. Weinstein had been working in her alternate assignment in the Region VI Office since the beginning of the 1999-2000 school year. With respect to Ms. Weinstein's performance assessment, the results of the observations done by Ms. Valle and Ms. Coffey in September and November 1998 and in January 1999 were reviewed, and it was noted that her 1998-1999 TADS Annual Evaluation was unacceptable. Ms. Weinstein was advised that her teaching performance was not acceptable and that she had not remediated the cited deficiencies. With respect to Ms. Weinstein's medical fitness to perform her duties, the report of Dr. Gibbs was reviewed with Ms. Weinstein and her union representative. The School Board personnel acknowledged that Dr. Feazell and Dr. Maurer both concluded that Ms. Weinstein was able to return to work, while Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein was not able to return to work. The School Board accepted the assessment of Dr. Gibbs. Ms. Weinstein requested that she be evaluated by a fifth doctor, as a "tie breaker"; this request was denied, as were Ms. Weinstein's requests that she be transferred from Miami Heights Elementary and that the School Board authorize additional leave to allow time for her to have the neurological examination recommended by Dr. Gibbs. Ms. Weinstein was advised that she must either resign her job or retire because she had been unable to obtain medical clearance to return to her teaching duties and was not eligible for additional leave. Ms. Weinstein did not choose to resign or retire by the October 20, 1999, deadline, and the School Board suspended her and recommended her dismissal from employment at its November 17, 1999, meeting. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Weinstein is incompetent as a teacher because she failed to communicate with or relate to her students to such a degree that the students were denied a minimum educational experience. Based on the formal and informal observations of Ms. Valle and Ms. Coffey during the fall of 1998 and in January 1999, Ms. Weinstein exercised virtually no control over the students in her classroom and either indiscriminately reprimanded the students or ignored their inappropriate behavior. Ms. Weinstein did not present her lessons in a coherent fashion, did not respond to students who were either confused or wanted to participate in the class, and was seemingly indifferent to whether the students learned in her classroom. No improvement of Ms. Weinstein's classroom performance was noted by Ms. Valle in her formal observation in January 1999 even though Ms. Weinstein had completed the activities prescribed by Ms. Valle and Ms. Coffey with respect to the September and November 1999 observations. The School Board has shown by the greater weight of the persuasive evidence that Ms. Weinstein is unable to perform her responsibilities as an elementary school teacher as a result of inefficiency in the classroom. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Weinstein is incompetent as a teacher because she is not emotionally stable. Dr. Harmon, Dr. Gibbs, and Dr. Feazell reached virtually the same conclusions regarding Ms. Weinstein's psychological profile and personality traits. All three psychologists found that Ms. Weinstein is extremely defensive, shows little insight into her own behavior, is unable to accept and benefit from feedback, makes judgments based on incomplete or incorrect information, and processes information poorly when she is in a stressful situation. On the basis of their assessments, Dr. Harmon and Dr. Gibbs concluded that Ms. Weinstein is unfit to carry out the duties as a teacher of elementary school children; Dr. Feazell concluded that Ms. Weinstein was fit to return to her teaching duties as of July 1999, as long as she continued in treatment to resolve the issues he identified in his evaluation report. The psychotherapy treatment Ms. Weinstein is receiving is not, however, focused on developing her ability to interact with others, to process and benefit from feedback, or to improve her judgment and ability to react properly in stressful situations, and Mr. Lewis supported his opinion that Ms. Weinstein was fit for duty as an elementary school teacher with nothing more than the observation that she was "much improved." The School Board has shown by the greater weight of the persuasive evidence that Ms. Weinstein is not fit to discharge her duties as a teacher at Miami Heights Elementary as a result of emotional instability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension without pay of Yvonne M. Weinstein and dismissing her as an employee of the School Board of Miami-Dade County, Florida, for incompetency. DONE AND ENTERED this 11th day of September, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of September, 2000.
The Issue In Case No. 92-6291 the Petitioner seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative penalty, on the basis of allegations of misconduct set forth in an Amended Administrative Complaint. The general nature of the charges against the Petitioner are that he engaged in certain criminal conduct, was found guilty of certain criminal conduct, failed to disclose information about his criminal record on his applications for employment and for a teaching certificate, on various occasions improperly touched several female students, and on one occasion used unnecessary force to discipline a male student. In Case No. 93-1227 the Petitioner seeks to suspend and terminate the Respondent's employment as a teacher with the Dade County School Board on the basis of allegations of misconduct set forth in an Amended Notice of Specific Charges. The general nature of the charges brought by the School Board is essentially the same as the allegations in Case No. 92-6291, although there are some differences in the specific details alleged.
Findings Of Fact Background and introductory matters The Respondent currently holds Florida teaching certificate number 286698, covering the areas of physical education and health education. The Respondent's certificate is valid through June 30, 1998. At all times material to this proceeding, the Respondent, John N. Pilla, was employed by the School Board of Dade County. He was initially employed as a Teacher Aide in January of 1969 and continued to work for the School Board of Dade County in several capacities through the 1977-78 school year. Following the 1977- 78 school year, the Respondent worked for other employers for several years. In 1984 he again applied for employment with the School Board of Dade County and was hired as a Substitute Teacher for the 1984- 85 school year. He was rehired in that capacity for the 1985-86 school year. After a break in service of several months, the Respondent was reinstated as a Substitute Teacher in October of 1986. In December of 1986 the Respondent was hired as a Teacher and he continued to be employed as a Teacher until the date of his suspension and termination from employment on February 17, 1993. As noted in more detail in some of the findings which follow, the Respondent was on several occasions given instructions or directives to the effect that he should avoid improper touching of students. Those instructions and directives were always qualified or modified in some way, so that the essence of the instructions and directives given to the Respondent was that he should avoid improper touching, or unnecessary touching, or touching not required by his teaching duties. The Respondent was never given an unqualified order that he was not to touch students under any circumstances. 5/ It has been a policy of the Dade County School Board at all times material to this proceeding that teachers are prohibited from engaging in inappropriate physical contact with students. The Respondent was aware of that policy. Events during the 1976-77 school year During the 1976-77 school year, the Respondent was employed as a teacher at North Miami Junior High. His principal at that school was Freddie Pittman. During the course of that school year several complaints were made to the effect that the Respondent had engaged in inappropriate conversations with female students and that he had engaged in inappropriate physical contact with female students. Mr. Pittman sought authorization to have those complaints investigated and shortly thereafter an investigation was conducted by School Board investigators. Several of the complaining students were interviewed and reported various instances of inappropriate conversations and inappropriate touching. 6/ The Respondent was interviewed by the investigators and denied all allegations of misconduct. The parents of all of the complaining students were advised of the investigation. All of the parents declined to press charges. Several weeks after the conclusion of the investigation, a conference was conducted on April 29, 1977, at which time Mr. Pittman and an Area Director met with the Respondent, reviewed with him the student allegations that had prompted the investigation, and then issued four directives to the Respondent. Those directives were reiterated in a memorandum to the Respondent dated May 2, 1977, as follows: You should refrain from any physical contact with your students unless it is required as part of your teaching duties. You should refrain from any conversations with your students that could be construed as improper, having sexual connotations or could cause the student to be embarrassed. You should refrain from inviting students to your home or to accompany you on personal trips without prior permission of the parent(s) or legal guardian(s). You should refrain from a display of affection towards your students such as holding hands, caressing, walking arm-in-arm, etc. The memorandum of May 2, 1977, also reminded the Respondent that: "It was stated emphatically that strong disciplinary action will be taken if the above directives or their intent are breached." The 1984 application for employment On March 21, 1984, the Respondent signed an Application for Instructional - Instructional Support Employment seeking reemployment with the Dade County Public Schools. The application included the following question: "Have you ever been convicted of anything other than a minor traffic violation?" The Respondent checked the "No" box in response to that question. The Respondent's answer of "No" appears to have been truthful. 7/ In connection with that same application for reemployment, on March 21, 1984, the Respondent also signed a form titled Security Check Authorization And Waiver Of Confidential Records. That form included a question as to whether the Respondent has ever been ". . . convicted, fined, imprisoned, or placed on probation in a criminal proceeding?" In response to that question, the Respondent checked the "No" box. Immediately above the Respondent's signature the form included a statement that "the above entries are true, complete, and correct to the best of my knowledge and belief. . . ," and ended with the following statement: "I understand that a knowing and willful false statement on this form may result in immediate dismissal." For reasons discussed below, the Respondent's "No" answer on the form titled Security Check Authorization And Waiver Of Confidential Records was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize his employment prospects. The 1988 application for educator's certificate On May 11, 1988, the Respondent signed an Application For Educator's Certificate for the purpose of renewing his teaching certificate. The application included the following question: Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges now pending against you other than minor traffic violations? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. The Respondent checked the "No" box in response to that question and did not provide any details about any criminal charges. Immediately above the Respondent's signature the application included the following language: I understand that Florida Statutes provide for revocation of an educator's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. For reasons discussed below, the Respondent's "No" answer on the Application For Educator's Certificate was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize the issuance of his certificate. The Respondent's criminal record In 1982 the Respondent was arrested for misdemeanor trespass as a result of an altercation that took place between himself and his ex-wife's boyfriend in front of the ex-wife's house. On September 29, 1982, the Respondent entered a plea of nolo contendere to the charge of trespass in the Circuit Court of Broward County, Florida. By order issued that same day, the court withheld adjudication of guilt and placed the Respondent on six months of non-reporting probation. On May 15, 1984, the Respondent was arrested and charged with the following violations: (a) leaving the scene of an accident with injuries in violation of Section 316.027, Florida Statutes; (b) culpable negligence in violation of Section 784.05(2), Florida Statutes, and (c) driving on a revoked driver license in violation of Section 322.34(2), Florida Statutes. On May 24, 1984, a two-count information was issued against the Respondent. Count One charged him with leaving the scene of an accident with injuries in violation of Sections 316.027(1) and (2), and 316.062, Florida Statutes. Count Two charged him with driving while license is revoked or suspended (misdemeanor) in violation of Section 322.34, Florida Statutes. The Respondent went to trial on the charges in the information and on August 8, 1984, was found not guilty of Count One and guilty of Count Two. On September 6, 1994, the Respondent was sentenced to two years in prison, an enhanced sentence which was based on prior uncounseled convictions. 8/ The Respondent appealed and on November 6, 1985, the appellate court reversed the sentence and remanded the case for resentencing. On January 17, 1986, the trial court resentenced the Respondent to 30 days time served. Events during the 1989-90 School Year During the 1989-90 school year, the Respondent was employed by the School Board of Dade County as a physical education teacher at Biscayne Elementary School. His Principal at that school was Carlos Fernandez. Near the beginning of that school year, as a result of complaints from two parents, Principal Fernandez had a conference with the Respondent during which he told the Respondent that he should be careful dealing with the female students. Later during that same school year (toward the end of February) three female students sent notes to the Principal's office in which they mentioned either than the Respondent had touched them or they had witnessed the Respondent touch someone else. Once again Principal Fernandez had a conference with the Respondent and told him again that he should be careful dealing with the female students and stressed that allegations of improper touching were very serious matters that could have very serious consequences. Neither of the Principal's conferences with the Respondent were reduced to a written directive. The purpose of the two conferences seems to have been primarily to warn the Respondent to be more careful when he was around female students. 9/ The essence of Principal Fernandez' comments on these two occasions was that the Respondent should be more careful to avoid any touching that could be misconstrued as improper touching. Principal Fernandez did not direct the Respondent that he should never touch any of the female students. Later that same school year, on April 20, 1990, three female students went to the Principal's office and reported that the Respondent had touched one of them on her private parts and that the other two had witnessed it. The matter was reported to several outside agencies, including the local police. The police commenced a criminal investigation, which generated a great deal of publicity about the incident. On or about April 24, 1990, the Respondent was assigned to an alternate work position which did not involve student contact. He remained in that position while the allegations of April 20, 1990, were being investigated. On June 15, 1990, the Respondent was arrested and was charged with three counts of lewd and lascivious assault on a child. The Respondent posted $15,000 bond and was released. His arrest was widely publicized in television and newspaper coverage. On June 28, 1991, the State Attorney dismissed all of the criminal charges against the Respondent. The School Board conducted an internal investigation and concluded that the allegations that formed the basis for the Respondent's arrest were unfounded. The Respondent was returned to a teaching position in the summer of 1991. Events during the 1991-92 school year For the 1991-92 school year the Respondent was assigned to teach a split shift at two schools, Parkway Elementary School and Madie Ives Elementary School. The Principal at Parkway was Jack Silberman. The Principal at Madie Ives was Sally Blonder. During the 1991-92 school year, Principal Silberman met with the Respondent and told him that he should not touch any students in any improper manner and went on to emphasize that the Respondent should watch himself and make sure he did not touch any students in an improper way. In February of 1992 several students at Madie Ives Elementary School complained that the Respondent had touched them improperly or in a manner which they found to be offensive. During the 1991-92 school year there were no such complaints at Parkway Elementary School. One of the students who complained in February of 1992 was S. K. On one or more occasions during the 1991-92 school year the Respondent placed his hands on S. K.'s shoulders 10/ and turned her around in line when she was facing the wrong way. In doing so, the Respondent did not touch S. K.'s breasts, nor was there anything else improper about the manner in which he touched her. The act of turning S. K. around in line was a reasonable act under the circumstances and was within the scope of the Petitioner's duties as a teacher. One of the other students who complained in February of 1992 was M. C. On one occasion during that school year, M. C. walked up behind the Respondent, who was at that time busy watching some other students. M. C. stood quietly behind the Respondent waiting for an opportunity to ask him a question. The Respondent did not know that M. C. was standing behind him. The Respondent took a step backward and accidentally stepped on M. C.'s foot. The Respondent immediately (without looking around behind himself) reached out behind himself with one hand and instinctively tried to prevent himself and whoever he had stepped on from falling down. In doing so, his hand touched M. C. somewhere in the general area of her low back, hip, or buttocks. This touching of M. C. was entirely accidental. The Respondent did not grab, squeeze, or fondle M. C.'s buttocks, nor did he engage in any other improper touching of M. C. On another occasion during that school year, M. C. walked off of the soccer field with a severe limp. The Respondent, concerned that she might have a serious injury, told M. C. to sit down on the sidelines and he asked her where it hurt. She indicated the shin area of one leg, just above the ankle. The Respondent touched her shin to determine whether there was any palpable injury. He did not feel any indication of a serious injury. Thereupon, he suggested that M. C. rub the injured area with her fingers and briefly demonstrated what he was suggesting. The Respondent's actions of touching and rubbing S. K.'s shin was a reasonable act under the circumstances and was an act that was within the scope of the Respondent's teaching duties or, if not technically within his duties, was an act which it was reasonable for him to believe was within the scope of his teaching duties. There was nothing improper about the manner in which the Respondent touched M. C.'s shin. Pending an investigation of the February 1992 allegations, the Respondent was reassigned to teach only at Parkway Elementary School. The Respondent continued to teach at Parkway Elementary School without incident until sometime in mid-April of 1992, when a television station filmed the Respondent and broadcast a news story about the then-pending allegations and the Respondent's prior arrest on charges of lewd and lascivious conduct. A local newspaper also published a story about the pending allegations, prior allegations, and the prior arrest on charges of lewd and lascivious conduct. As a result of the television coverage and pressure from parents, in mid-April of 1992 the Respondent was reassigned to work in a position that did not involve contact with students. He continued to work in that position until February 17, 1993, when the School Board suspended the Respondent and initiated dismissal proceedings against him.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that in Case Number 92-6921, a Final Order be issued to the following effect: Dismissing the charges set forth in Counts Two, Four, Seven, Eight, and Nine; Concluding that the Respondent is guilty of the charges set forth in Counts One, Three, Five, Ten, Eleven, and Twelve; and Imposing the penalty of revocation of the Petitioner's teaching certificate. On the basis of all of the foregoing, it is RECOMMENDED that in Case No. 93-2723, the Dade County School Board issue a Final Order in this case concluding that the evidence is insufficient to establish any of the charges in the Amended Notice of Specific Charges and dismissing all charges against the Respondent. DONE AND ENTERED this 15th day of November, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of November, 1994.
The Issue The issue in this case is whether there is just cause for Broward County School Board to suspend Lula Faison for 10 days without pay based upon the allegations made in its Administrative Complaint filed on October 11, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Faison was hired by the School Board on February 10, 2004. She started her employment with the School Board at Sunset Center School, an off-campus program at Smith Community Health, where she taught for approximately four years. She was employed pursuant to a professional services contract with Broward County. Faison is a certified Exceptional Student Education ("ESE") and English for Speakers of Other Languages ("ESOL") teacher. She has worked with Emotional/Behavioral Disability ("EBD")1/ students her whole career with Broward County. She started working for Pompano Beach Elementary School ("Pompano") during the 2010-2011 school year as an ESE teacher for EBD students. During her first two years at Pompano, she had fourth- and fifth-grade EBD students. During the 2015-2016 school year, Faison's classroom was mixed with 10 EBD students in grades kindergarten, first, second, and third, with ages ranging from six to 10 or 11. The younger kids mimicked the older students' behavior, and it was challenging for Faison to control the classroom. Faison's classroom had the highest rate of incidents compared to the other EBD classrooms in the cluster at Pompano. Faison had both a paraprofessional, Hunt, and a substitute teacher, Popov, to assist in her classroom to help bring order. Hunt was assigned to assist Faison in her classroom with point sheets, monitoring the children, helping isolate behaviors, as well as manage and teach students. A.J. was approximately nine years old when he joined the EBD program during the 2015-2016 school year. A.J. was an enjoyable kid, but had numerous behavioral episodes. He was very explosive and lacked a concern for safety. He had various home issues going on. Additionally, A.J. was also a runner2/ and he had nine elopements3/ from January to April 2016. Pompano's protocol for if a student elopes was that administration was notified; the elopement was communicated over the school walkie-talkie system to notify staff to be aware to look out for the student; once the student was located, the locator was to keep eyes on the student; and typically a separate individual went after the student while the other watched. Safety is always the priority in any elopement. Faison was trained in the elopement protocol and was familiar with its process. While at Pompano, Faison never had any difficulty implementing or dealing with elopement protocols. On April 18, 2017, Faison reported to work late. Upon her arrival, Hunt had written the morning activities on the board and was instructing her classroom. Soon thereafter, Popov arrived and Faison took her class out to the playground. Popov assisted Faison taking the students outside, but she only remained about five minutes and then left Faison alone with the students. When no one came out to assist Faison with the students on the playground, she decided to take the students back inside. At the time, A.J. was playing with sticks. Faison instructed A.J. to put the sticks down because he could not bring them inside. She encouraged him to put them under the bench to retrieve and play with later. A.J. refused to put the sticks down and wanted to bring them inside. Faison told A.J. to walk with her and he did. Faison walked the students inside from off the playground headed to her classroom and ran into Popov. Faison had Popov walk the kids the remainder of the way into Faison's classroom so that Faison could deal with A.J. and the sticks. Faison had been trained in Professional Crisis Management ("PCM"). She evaluated the situation with A.J. and she determined that the best behavioral technique and de- escalation strategy to get A.J. to comply and put the sticks down, was to ask Felix to assist with A.J. Felix had a good relationship with A.J. Previously, A.J. had responded well to Felix and Felix had been able to calm A.J. down. Faison did not want A.J. to hurt anyone with the sticks. Faison went to the TAB room4/ where Felix was assigned. A.J. still had the sticks and was behind Faison in the hallway when she approached Felix's classroom.5/ Faison opened the door to the TAB room and observed that Felix had several students in his room that he was supervising when Faison arrived and that Felix was the only adult present. Faison stood in the doorway and explained to Felix that A.J. was not listening to her. She wanted to see if Felix could assist her and get him to come inside the classroom without the sticks. Faison requested that Felix help her out and speak to A.J. Faison held the conversation with Felix at the TAB room door with her body halfway in the door and Felix standing in the doorway on the TAB room side. When Faison turned around to address A.J. in the hallway, he was not there. Felix never saw A.J. in the hallway. When Faison discovered A.J. was no longer in the hallway, she thought A.J. was outside of Felix's classroom and she made a reasonable request that Felix call him in through the side door of the TAB classroom. Felix did not indicate to Faison that he either agreed to or refused to assist with or go after A.J. Faison left the TAB room believing that Felix was going to get A.J., which was a mistake because Felix did not follow up with A.J., unbeknownst to Faison. Faison's actions of not following up and believing Felix had followed up with A.J. were an isolated incident of misjudgment. After their discussion, Faison returned to her classroom. Later that morning, Pompano's secretary put out an elopement call on the Pompano walkie-talkie system. Faison did not receive the call because she did not have a walkie-talkie on April 18, 2016. Felix heard the elopement call and walked outside of the door towards the parking lot and emerged near the entrance of the school. There, Felix saw A.J. with a stick by the school marquee near the outer boundary of the school on the far end of the school property. Hunt also heard the elopement call on the walkie- talkie and went outside to follow the Pompano elopement protocol. Felix and Hunt worked together. Felix went to the left and Hunt went to the right to encircle A.J. When A.J. noticed them, he took off running toward 13th Avenue. Hunt and Felix caught A.J. approximately a block away from the school at the intersection of Northeast 8th Street and Northeast 13th Avenue near the baseball field. Following elopement protocol, Felix and Hunt let the administration know by walkie-talkie that they had caught up to A.J. The resource officer arrived and put A.J. in the patrol car because A.J. was combative. Principal Larson also appeared at the scene to check and see if everything was fine. Afterwards, Larson discussed A.J.'s elopement with Felix and decided he needed to follow up with Faison to determine what happened with A.J. When A.J. was returned to campus, he went to the TAB room to cool down and to determine why he eloped. Faison was not aware that A.J. had eloped. She was taking her students to lunch alone,6/ midway through the hallway about to lead the kids into the cafeteria, when Larson caught up with her and made the reasonable request that she come to him to have a discussion. He wanted to discuss the A.J. incident. Faison told Larson no when he told her to step aside and talk with him. Larson addressed Faison twice more and requested that she come to him. Faison refused to approach or talk to Larson. The third time Larson requested that Faison come to him, he informed her that she was being insubordinate. Faison felt she should not have left the kids and responded by telling Larson "I've been insubordinate all year." She finished walking the kids to the cafeteria following Larson's instructions. Broward County School Board's Police Special Investigative Unit and Broward Sheriff's Child Protective Investigations Services investigated A.J.'s April 18, 2016, off- campus elopement. Onagoruwa investigated the incident within 24 hours, including interviewing A.J. and closed her case as non-substantiated because no physical harm occurred to A.J. While at Pompano, Faison's previous discipline included: a summary memo dated May 2, 2014, regarding IEP deadlines; a second summary memo for failure to complete IEPs on time dated May 2, 2015; a disciplinary memo dated October 27, 2015, for failure to adhere to IEP deadlines and verbal reprimand of November 3, 2015; a February 1, 2016, written reprimand following a pre-disciplinary hearing meeting for failure to submit lesson plans and a comprehensive behavior plan; and a second written reprimand dated March 16, 2016, for failing to complete third grade portfolios and insubordinate behavior of hanging up the phone on Larson and refusing to meet with him in his office. The March 16, 2016, written reprimand specifically warned Faison about insubordination and stated: [Y]ou received notification regarding your insubordinate behavior on February 22, 2016, when you hung up the pone on me after I asked you to come to my office for a meeting and on March 2, 2016 for refusing to meet with me for non-disciplinary reasons. * * * [Y]our gross insubordination [is] a serious breach of conduct that cannot be tolerated. Therefore, I am issuing you a written reprimand that is consistent with School Board Policy 4.9. Please be advised that any further failure on your part to perform to the standards established for the effective and productive performance of your job duties as a teacher will result in further disciplinary action, up to and including termination of your employment. Petitioner ultimately filed charges against Faison by Administrative Complaint dated October 11, 2017, that included charges of misconduct in office, incompetency, gross insubordination, willful neglect of duty, and violation of School Board Policy 4008. On November 7, 2017, the School Board took action to suspend Respondent for 10 days without pay. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Broward County School Board enter a final order rescinding the 10-day suspension with back pay. DONE AND ENTERED this 6th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2018.
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent's employment as a teacher.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed by the School Board as a teacher pursuant to a professional services contract. Respondent was initially hired by the School Board in July 2006 and assigned to teach at Horace Mann Middle School ("Horace Mann"). At all times material to this case, Respondent's employment with the School Board was governed by Florida law, the School Board's policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The 2010-2011 School Year During the 2010-2011 school year, Respondent was a teacher at Horace Mann. Dr. Carmen Jones-Carey, the principal at Horace Mann, was authorized to issue directives to her employees, including Respondent. Dr. Jones-Carey issued Respondent a letter of reprimand on May 23, 2011, concerning an alleged incident that occurred on April 27, 2011, involving Respondent "yelling," "throwing things around" in her classroom, and making an inappropriate comment to another employee. The reprimand directed Respondent to refrain from inappropriate emotional outbursts, losing control, and making inappropriate comments to or about staff members that may be interpreted as offensive or threatening. The reprimand further directed Respondent to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213; (2) refrain from using inflammatory language in her role as a teacher; and (3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Dr. Jones-Carey informed Respondent that failure to comply with the directives may result in further disciplinary action. On May 25, 2011, Dr. Jones-Carey held a conference for the record with Respondent regarding the April 27, 2011, incident, at which time Respondent was directed to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213; (2) refrain from using inflammatory language in her role as a teacher; and (3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Dr. Jones-Carey informed Respondent that failure to comply with the directives will be deemed as insubordination which may result in disciplinary action. The 2011-2012 School Year On April 13, 2012, Dr. Jones-Carey and Paul J. Greenfield, administrative director for North Regional Center, held a conference for the record with Respondent concerning an alleged incident in the cafeteria involving Respondent yelling at and pulling a student by the bottom of her shirt, slinging the student around, and causing the student to fall into a metal counter. During the conference, Respondent was directed to, among other things: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) refrain from using physical means as a form of discipline; and (3) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. As a result of the alleged incident, Respondent was suspended without pay for 17 days and informed that failure to comply with the directives may result in further disciplinary action. The 2012-2013 School Year On November 16, 2012, Dr. Jones-Carey held a conference for the record with Respondent concerning an alleged incident in Respondent's sixth-period class involving a verbal altercation between Respondent and a student during which Respondent used inappropriate language when addressing the student and the entire class. During the conference, Respondent was directed to, among other things: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. During the conference, Respondent was also informed of the issuance of a letter of reprimand and that failure to comply with the directives will result in disciplinary action. Dr. Jones-Carey issued Respondent a letter of reprimand on November 28, 2012, concerning the alleged incident that occurred in Respondent's sixth-period class. The reprimand directed Respondent to immediately refrain from getting involved in verbal confrontations with students, berating, taunting, and/or embarrassing students in class and/or in any public area. The reprimand further directed Respondent to: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. Dr. Jones-Carey informed Respondent that any recurrences of the above infraction would constitute gross insubordination and may result in further disciplinary action, up to and including dismissal from further employment with the School Board. On March 21, 2013, Dr. Jones-Carey held a conference for the record with Respondent concerning an alleged incident that occurred in Respondent's fifth-period class on February 8, 2013, in which Respondent yelled at the entire class and forcefully moved desks, which caused another desk to hit a student causing the student to lose her balance and injure her arm. During the conference, Respondent was directed to, among other things: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. During the conference, Respondent was also informed that failure to comply with the directives will constitute gross insubordination and result in disciplinary action. Dr. Jones-Carey issued Respondent a letter of reprimand on April 9, 2013, concerning the alleged incident that occurred in Respondent's fifth-period class on February 8, 2013. The reprimand directed Respondent to immediately refrain from losing her temper in class, getting involved in verbal confrontations with students, berating, taunting, and/or embarrassing students in class and/or in any public area. The reprimand further directed Respondent to: (1) adhere to all School Board policies, specifically, School Board Policies 3210, Standards of Ethical Conduct, and 3210.01, Code of Ethics; (2) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board; (3) refrain from exposing a student to unnecessary embarrassment or disparagement; and (4) refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace. Dr. Jones-Carey informed Respondent that any recurrences of the above infraction would constitute gross insubordination and may result in further disciplinary action, up to and including dismissal from further employment with the School Board. On June 19, 2013, at its scheduled meeting, the School Board took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent timely requested a formal administrative hearing, and, on June 26, 2013, the School Board referred the matter to DOAH. The matter was styled Miami- Dade County School Board v. Shavonne Anderson, DOAH Case No. 13-2414TTS, and assigned to Administrative Law Judge Todd P. Resavage. 2013-2014 School Year On January 14, 2014, following an evidentiary hearing, Judge Resavage issued a Recommended Order finding Respondent guilty of gross insubordination. Judge Resavage recommended that the School Board enter a final order finding Respondent guilty of gross insubordination, suspending her employment without pay for a period of 180 school days, and placing her on probation for a period of two years. On February 12, 2014, the School Board entered a Final Order adopting Judge Resavage's Recommended Order, imposing the suspension without pay for a period of 180 days. Respondent received credit for time served and was reinstated for the 2014-2015 school year. 2018-2019 School Year Respondent was re-assigned to Miami Beach Senior High School for the 2018-2019 school year, where she taught physical science. The proposed discipline is based on conduct occurring on January 31, 2019, during Respondent's fourth-period inclusion physical science class, co-taught by Respondent and another teacher, Joanna Semeniuk. On January 31, 2019, D.A. was a ninth-grade male special education student in the class. During class, D.A. questioned Respondent about the quality of his written work. Displeased with Respondent's answer, a verbal confrontation ensued between D.A. and Respondent. The argument escalated after D.A. stood up, threw his paper on the floor of the classroom, used profane language toward Respondent, and attempted to leave the room. In response to D.A.'s conduct, Respondent became irate, grabbed the paper off the floor, used profane language toward D.A., grabbed D.A. by his shirt, and shoved the piece of paper down his shirt. The incident was witnessed by Ms. Semeniuk and other students in the classroom. Respondent's conduct on January 31, 2019, was inappropriate, disparaging, reflected poorly upon herself and the School Board, and reduced Respondent's ability to effectively perform duties. Respondent could certainly have projected authority and addressed the student's behavior without escalating the situation and resorting to the profane and disparaging verbal attack and initiating inappropriate physical contact with D.A. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. Through the profane and disparaging verbal tirade and inappropriate physical contact upon the student on January 31, 2019, Respondent violated Florida Administrative Code Rules 6A-10.081(2)(a)1., 5., and 6., by failing to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety, intentionally exposing the student to unnecessary embarrassment or disparagement, and intentionally violating the student's rights. Respondent also violated School Board Policy 3210, Standards of Ethical Conduct, sections A.3., 7., and 8., and School Board Policy 3210.01, Code of Ethics, Conduct Regarding Students, sections A., E., and F., which mirror rules 6A-10.081(2)(a)1., 5., and 6. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of gross insubordination in violation of rule 6A-5.056(4) by intentionally refusing to obey a direct order, reasonable in nature, and given by and with proper authority. By failing to comply with the specific directives detailed above to refrain from exposing a student to unnecessary embarrassment or disparagement; refrain from using abusive and/or profane language or displaying unseemly conduct in the workplace; refrain from inappropriate emotional outbursts, losing control, and using inflammatory language in her role as a teacher; and conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board, Respondent intentionally refused a direct order, reasonable in nature, and given by and with proper authority. At hearing, Respondent acknowledged that her language and use of profanity toward her student in the classroom on January 31, 2019, was inappropriate. Specifically, Respondent acknowledged that during the incident she called D.A. a "faggot" and directed the word "shit" toward him. The persuasive and credible evidence adduced at hearing fails to establish that Respondent is guilty of violating rule 6A-10.081(2)(c)4., or School Board Policy 3210, Standards of Ethical Conduct, sections A.9. and 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order upholding the suspension and terminating Respondent's employment. DONE AND ENTERED this 26th day of November, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 26th day of November, 2019. COPIES FURNISHED: Shavonne L. Anderson 2868 Northwest 197th Terrace Miami Gardens, Florida 33056 (eServed) Cristina Rivera, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
