The Issue Whether just cause exists for Petitioner, DeSoto County School Board (School Board), to suspend Respondent without pay, and terminate her employment as an Exceptional Student Education (ESE) teacher.
Findings Of Fact Parties and Relevant Policies The School Board is charged with the duty to operate, control, and supervise public schools in DeSoto County. Art. IX, § 4(b), Fla. Const. (2018). This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. Respondent is an ESE classroom teacher at DeSoto County High School (High School). Although Respondent has been teaching for 23 years, she has only been an ESE classroom teacher for the School Board since 2016. Superintendent Cline is an elected official who has authority for making School Board personnel decisions. His duties include recommending to the School Board that a teacher be terminated. § 1012.27(5), Fla. Stat. David Bremer (Principal Bremer) was the principal at the High School at all times relevant to these proceedings, and Cynthia Langston served as the Assistant Principal. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education regulations, and the Collective Bargaining Agreement (CBA) entered into by the School Board and the Desoto County Educators Association, a public union. The CBA relevant to this action was effective July 1, 2018, through June 30, 2021. The School Board employed Respondent on an annual contract basis. “Annual contract” means an employment contract for a period of no longer than one school year which the School Board may choose to award or not award without cause. § 1012.335(1)(a), Fla. Stat. The testimony at the hearing and language in the CBA establish that the annual contract of a teacher, who has received an indication he or she “Needs Improvement” or is placed on an improvement plan, is not eligible for automatic renewal. In these situations, the superintendent has discretion regarding whether to renew that teacher’s annual contract. See CBA, Art. 8, § 16. Article 22, section 8 of the CBA provides for progressive discipline for teachers in the following four steps: (1) verbal reprimand (with written notation placed in the site file); (2) written reprimand (filed in personnel and site files); (3) suspension with or without pay; and (4) dismissal. The CBA makes clear that progressive discipline must be followed, “except in cases that constitute a real immediate danger to the district or [involve a] flagrant violation.” February 11, 2019 (the February 11 Incident) This proceeding arises from an incident that occurred on February 11, 2019, after lunch in Respondent’s ESE classroom. The School Board alleges Respondent intentionally threw a foam or Nerf-type football at a student in a wheelchair when he failed to follow her instructions, and the football hit the student. Respondent asserts she playfully threw stress ball-type footballs up in the air and one accidently bounced and hit A.R.’s chair. Respondent’s classroom at the High School consisted of ten to 12 ESE students during the 2018-2019 school year. These students had special needs and some were nonverbal. On the day of the incident, there were nine or ten students in Respondent’s classroom, including A.R., a high school senior with cerebral palsy. Respondent kept small foam or Nerf-type footballs in her desk drawer. The testimony at the hearing established Respondent had used them in the classroom to get the students’ attention in a playful fashion. In addition to Respondent, four paraprofessionals assisted the students in the classroom. Of the four, only three were in the classroom during the February 11 incident: Ms. Walker, Mr. Blevins, and Ms. Murray. Respondent was responsible for A.R. while in her classroom. A.R. uses a wheelchair or a walker to get around, but has a special chair-desk in Respondent’s classroom. A.R. had difficulty in the classroom setting. Specifically, it was noted at the hearing that he has trouble processing what is happening around him, and that he needs help simplifying tasks that require more than one step. Although A.R. is verbal, he is slow to respond. A.R. was described as a “repeater” because he repeats things that others say, smiles if others are smiling, or laughs if others are laughing. In conversation, A.R. would typically smile and nod, or say “yes.” Ms. Walker’s and Mr. Blevins’s recollections of the February 11 incident were essentially the same. They testified that on the afternoon of February 11, 2019, the students returned to Respondent’s classroom from art class. They were excited and did not settle down for their lesson. As a result, Respondent became frustrated and yelled at the students to get their pencils so they could start their work. Respondent asked A.R., who was in his special chair-desk, to obtain a pencil. A.R. did not respond immediately and Respondent told him to get his pencil or she would throw a football. Ms. Walker’s and Mr. Blevins’s testimony established that, at this point, Respondent threw either one or two blue, soft, Nerf-type footballs approximately six inches long at A.R., who was looking in another direction. One of these blue footballs hit A.R. either in the side of his torso or back. A.R. began flailing his arms while he was in his chair-desk, and the entire room became silent. Ms. Murray was not facing A.R. during the incident, but she heard Respondent yell at A.R. to pay attention. She did not see Respondent throw the balls and was unsure if any of the balls made contact with A.R. After the incident, however, she saw two balls on the floor, picked them up, and returned them to Respondent. Ms. Murray did not recall the color of the footballs, and could only describe them as “squishy.” Respondent testified that A.R. was not paying attention, and she admits she told him she was going to toss the footballs if he did not get his pencil. She denies throwing a blue football at A.R., but instead claims she threw two smaller foam brown footballs. She denied any of the balls hit him, but rather, explained one of the brown footballs bounced off the floor and hit A.R.’s chair-desk; the other fell on her desk. The undersigned finds the testimony of Respondent less credible than the paraprofessionals’ testimony. First, all of the evidence established Respondent clearly threw footballs after A.R. did not respond to her instruction, and Respondent knew (or should have known) that A.R. was incapable of catching the football or responding positively. Second, Respondent’s version of what happened to the balls after she threw them is inconsistent with the testimony of Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s testimony that one ball fell on her desk is also inconsistent with Ms. Murray’s testimony that she picked up two balls off the floor. Finally, Respondent’s version of events is not believable in part, because neither the brown nor the blue football entered into evidence had sufficient elasticity (or bounciness) to have acted in the manner described by Respondent. Based on the credible evidence and testimony, the undersigned finds Respondent intentionally threw the blue larger footballs at A.R. knowing he would not be able to catch them, one ball hit A.R. in the side or back, and A.R. became startled from being hit. There was no evidence proving A.R. was physically, emotionally, or mentally harmed. Report and Investigation of the February 11 Incident Both Ms. Walker and Mr. Blevins were taken aback by Respondent’s behavior. Ms. Walker was concerned that A.R. did not realize what was happening, and that the rest of the students were in shock. She did not think a teacher should throw anything at any student. Mr. Blevins similarly stated he was stunned and did not believe Respondent’s conduct was appropriate, especially because A.R. was in a wheelchair. At the hearing, Respondent also admitted it would be inappropriate to throw anything at a student even if it was just to get his or her attention. Both Ms. Walker and Mr. Blevins attempted to report the incident immediately to the High School administration. Ms. Walker left the classroom to report the incident to Principal Bremer, who was unavailable. Ms. Walker then reported to Assistant Principal Langston what she had seen happen to A.R. in Respondent’s classroom. During this conversation, Ms. Walker was visibly upset. After listening to Ms. Walker, Assistant Principal Langston suggested she contact the Department of Children and Families (DCF). Ms. Walker used the conference room phone and immediately contacted the abuse hotline at DCF. As a result, DCF opened an abuse investigation into the incident. Meanwhile, Mr. Blevins had also left Respondent’s classroom to report the incident to Assistant Principal Langston. When he arrived, he saw that Ms. Walker was already there and assumed she was reporting what had happened. Therefore, he did not immediately report anything. Later that day, Assistant Principal Langston visited Respondent’s classroom, but did not find anything unusual. She did not speak to Respondent about the incident reported by Ms. Walker. The next day, February 12, 2019, Assistant Principal Langston obtained statements from the paraprofessionals, including Ms. Walker and Mr. Blevins in Respondent’s classroom regarding the February 11 incident. These statements were forwarded to Superintendent Cline, who had been advised of the incident and that DCF was conducting an investigation. It is Superintendent Cline’s practice to advise administrators to place a teacher on suspension with pay during an investigation. If the teacher is cleared, the administrator should move forward with reinstatement. In this case, Principal Bremer met with Respondent on February 12, 2019, and informed her she would be placed on suspension with pay while DCF conducted its investigation into the incident. DCF closed its investigation on February 19, 2019. No one who conducted the DCF investigation testified at the hearing, and the final DCF report was not offered into evidence. Rather, the School Board offered a DCF document titled “Investigative Summary (Adult Institutional Investigation without Reporter Information).” This document falls within the business records exception to the hearsay rule in section 90.803(6), Florida Statutes, and was admitted into evidence. The undersigned finds, however, the Investigative Summary unpersuasive and unreliable to support any findings. The document itself is a synopsis of another report. Moreover, the document is filled with abbreviations and specialized references, but no one with personal knowledge of the investigation explained the meaning of the document at the final hearing. Finally, the summary indicates DCF closed the investigation because no physical or mental injury could be substantiated. On February 21, 2019, Principal Bremer notified Superintendent Cline that DCF had cleared Respondent, but did not provide him with a copy of the DCF report or summary. Principal Bremer did not have to consult with Superintendent Cline regarding what action to take regarding Respondent. Based on the DCF finding that the allegation of abuse or maltreatment was “Not Substantiated,” Principal Bremer reinstated Respondent to her position as an ESE teacher, but still issued her a written reprimand. The reprimand titled “Improper Conduct Maltreatment to a Student” stated in relevant part: I am presenting you with this written reprimand as discipline action for your improper conduct of throwing foam balls at a student. On February 11, 2019 it was reported you threw a football at [A.R.], a vulnerable adult suffering from physical limitations. As a result of this action, Florida Department of Children and Families (DCF) were called to investigate and you were suspended until the investigation was complete. Although maltreatment of [sic] Physical or Mental Injury was not substantiated, DCF reported three adults in the room witnessed you throwing at least two foam balls at [A.R.] because he did not get a pencil on time. Apparently [A.R.] did not follow through with the direction provided by you and you became frustrated for that reason. I am by this written reprimand, giving you an opportunity to correct your improper conduct and observe Building rules in the future. I expect you will refrain hereafter from maltreatment to a student and fully meet the duties and responsibilities expected of you in your job. Should you fail to do so, you will subject yourself to further disciplinary action, including a recommendation for immediate termination and referral of the Professional Practices Commission. On February 25, 2019, Respondent returned to her same position as an ESE teacher, in her same classroom, with the same students, including A.R. Superintendent’s Investigation and Recommendation to Terminate Meanwhile, Superintendent Cline requested a copy of the report of the investigation from DCF and contacted the DCF investigator. Based on his review of what was provided to him and his conversation with DCF, he concluded A.R. may still be at risk. Superintendent Cline found Respondent’s actions worthy of termination because “it is unacceptable to throw a football at a student who has cerebral palsy, and thus, such conduct violates” state rules and School Board policy. School Board PRO at 15, ¶ 72. There was no credible evidence at the hearing that A.R. or any other student was at risk from Respondent. The School Board failed to establish at the hearing what additional information, if any, Superintendent Cline received that was different from the information already available to him, or that was different from the information provided to Principal Bremer. There was no justification or plausible explanation as to why Superintendent Cline felt the need to override Principal Bremer’s decision to issue a written reprimand for the violations. On March 6, 2019, Superintendent Cline issued a letter suspending Respondent without pay effective March 8, 2019, and indicating his intent to recommend to the School Board that it terminate Respondent’s employment at its next regular board meeting on March 26, 2019. Attached to the letter were copies of the Investigative Summary, Florida Administrative Code Rule 6A- 10.081, and School Board Policy 3210. This letter was delivered by a School Board’s human resources employee to Respondent on March 8, 2019. Respondent did not return to the classroom for the remainder of the school year. Respondent’s Disciplinary History Prior to the February 11 incident, Respondent had received an oral reprimand for attendance issues on December 21, 2018. On February 6, 2019, Assistant Principal Langston met with Respondent to address deficiencies in Respondent’s attendance, lesson plans, timeliness of entering grades, and concerns with individual education plans for her ESE students. At that meeting, Assistant Principal Langston explained Respondent would be put on an improvement plan and that if Respondent did not comply with the directives discussed at the meeting, she would be subject to further discipline, including termination. Although the plan was memorialized, Respondent was not given the written plan until after she returned from the suspension. Ultimate Findings of Fact Respondent intentionally threw two footballs in an overhand manner at A.R., a student who could not comprehend the situation and could not catch the balls. She did so either in an attempt to garner the student’s attention or out of frustration because he was not following directions. Respondent did not violate rule 6A-10.081(2)(a)1., because there was no evidence the incident exposed A.R. to harm, or that A.R.’s physical or mental health or safety was in danger. Similarly, Respondent did not violate School Board Policy 3210(A)(1). Respondent violated rule 6A-10.081(2)(a)5., which prohibits a teacher from “intentionally expos[ing] a student to unnecessary embarrassment or disparagement.” The evidence established Respondent’s action in throwing the ball was intentional and was done to embarrass or belittle A.R. for not following her directions. For the same reason, Respondent’s conduct violated School Board Policy 3210(A)(5). Respondent violated rule 6A-10.081(2)(a)7., which states that a teacher “[s]hall not harass or discriminate . . . any student on the basis of . . . handicapping condition . . . and shall make reasonable effort to assure that each student is protected from harassment.” Again, the credible evidence established the act of a teacher throwing any item at any student, especially one who requires a wheelchair, is inappropriate and would be considered harassment on the basis of a student’s handicap. Similarly, Respondent violated rule 6A-10.081(2)(c)4., which requires that a teacher “not engage in harassment or discriminatory conduct which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.” For the same reasons listed above, Respondent’s conduct also amounts to a violation of School Board Policy 3210(A)(7). There was no evidence this conduct constituted a real immediate danger to the district, nor does it rise to the level of a flagrant violation. Therefore, the School Board must apply the steps of progressive discipline set forth in article 22, section 8 of the CBA. Pursuant to the terms of the CBA, Respondent should have received a written reprimand for the February 11 incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DeSoto County School Board: enter a final order finding Respondent violated Florida Administrative Code Rule 6A-10.081(2)(a)5., and (2)(c)4.; and corresponding School Board Policy 3210(A)(5) and (7); rescind the notice of termination dated March 6, 2019, and, instead, reinstate Principal Bremer’s written reprimand dated February 25, 2019; and to the extent there is a statute, rule, employment contract, or Collective Bargaining Agreement provision that authorizes back pay as a remedy for Respondent’s wrongful suspension without pay, Respondent should be awarded full back pay and benefits from March 8, 2019, to the end of the term of her annual contract for the 2018-2019 school year. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 13th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 13th day of August, 2019. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Adrian H. Cline, Superintendent The School District of DeSoto County 530 LaSolona Avenue Post Office Drawer 2000 Arcadia, Florida 34265-2000 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008.
The Issue Whether just cause exists for Petitioner to suspend Respondent's employment as a teacher without pay for one day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools in Broward County. The School Board hired Respondent on September 1, 1981. At all times material hereto, Respondent has been employed by the School Board as a middle school social science teacher and department head at Whiddon-Rogers Education Center ("Whiddon-Rogers"). At all times material to this case, Respondent's employment with the School Board has been governed by Florida law and the School Board's policies. The conduct giving rise to the School Board's proposed one-day suspension of Respondent occurred on October 1, 2019, during the 2019-2020 school year. On the morning of October 1, 2019, M.G., an eighth grade male student at Whiddon-Rogers, received a telephone call regarding some family members who had died that morning. Due to the deaths in his family, M.G. was upset and in a "bad mood" throughout the morning and later that day when he arrived in Respondent's fourth period social studies class. During Respondent's fourth period class, M.G. did not want to be disturbed. He had a "hoodie over his head," his head down on his desk, and he was not doing any work. M.G. was often picked on in class by other students. On this particular occasion in Respondent's fourth period class, M.G. was being picked on by other students as he laid his head down on his desk. At some point, M.G. picked his head up from his desk and made a verbal threat to other students that he was going to shoot up the school. Respondent did not hear M.G. make the threat. One of the other students that heard M.G.'s threat went to Respondent during class and told him M.G. had threatened to shoot up the school. Respondent did not report M.G.'s threat to school administration. Respondent did not consider M.G.'s comment to be a dangerous threat. Respondent did not want to embarrass M.G. and told him during his fourth period class on October 1, 2019, that he could not say things like that. M.G., who was angry, did not respond to Respondent and walked out of the classroom. Respondent instructed M.G. to return to the classroom, but M.G. ignored him. On October 2, 2019, M.G. did not attend school. On the morning of October 3, 2019, Assistant Principal Sabrina Smith received a text message from another teacher at Whiddon-Rodgers, N'Kenge Rawls, notifying her of M.G.'s threat on October 1, 2019, to shoot up the school. Ms. Smith notified the other assistant principals of the threat and assembled the mandatory members of the Behavioral Threat Assessment ("BTA") team to collaboratively analyze available data, determine the level of risk, and develop appropriate interventions. As part of the threat assessment, Ms. Smith spoke to M.G. on October 3, 2019, who admitted he had threatened to shoot up the school. Ms. Smith also spoke to Respondent, who admitted he did not report M.G.'s threat to administration on October 1, 2019. Respondent admitted to Ms. Smith that he should have reported M.G.'s threat and that he made a mistake in not reporting the threat. Based on the behavioral threat assessment, the BTA team determined M.G.'s risk level to be "Medium/Serious Substantive." A "Medium/Serious Substantive" risk level means that the student "does not appear to pose a threat of violence at this time but exhibits behaviors that indicate a continuing intent to harm and/or potential for future violence." By all accounts, Respondent is a good teacher and well respected by his colleagues as evidenced by his team leader role at Whiddon-Rodgers. However, on this particular occasion, Respondent used poor judgment and erred in not reporting M.G.'s threat to shoot up the school on October 1, 2019. The persuasive and credible evidence adduced at hearing establishes that Respondent failed to report M.G.'s threat to shoot up the school, which constitutes misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By failing to report M.G.'s threat to shoot up the school, Respondent violated rule 6A-10.081(2)(a)1., by failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in violation of rule 6A-5.056(3) and (3)(a)1., by failing to discharge the duty to report such a threat as prescribed by law and "[i]nefficiency" in violation of rule 6A- 5.056(3)(a)3., by failing to communicate appropriately with and relate to administrators. Respondent's conduct also violates School Board Policy 2130, which requires School Board employees "to report to school administration any expressed threat(s) or behavior(s) that may represent a threat to the community, school, or staff," and School Board Policy 4008, which requires Respondent to comply with the "Principles of Professional Conduct of the Education Profession in Florida," and "all rules and regulations that may be prescribed by the State Board and by the School Board." Respondent has only received prior discipline on one occasion. On September 19, 2007, Respondent received a written reprimand for inappropriate discipline of a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the one-day suspension of Respondent's employment without pay. DONE AND ENTERED this 10th day of November, 2020, 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 10th day of November, 2020. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed) Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301 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)
The Issue Whether just cause exists for Petitioner to suspend Respondent from his teaching position, without pay, for 15 days, and to terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a teacher since 2005. His last teaching assignment was as an eighth grade history teacher at Howell L. Watkins Middle School ("Watkins"), where he taught for approximately 12 years. Administrative Complaint Charges The Administrative Complaint alleges that on or about January 19, 2017, Respondent engaged in the following conduct with respect to a student, K.B.: "10. . . . a. [p]ush[ing] her into the dry board; b. [g]rabbing the student victim’s backpack causing her to fall; c. [p]ulling the victim’s arms and dragging her by one arm and one leg; and d. [d]ragging the student victim by the ankle and wrist." As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating the following statutes, rules, and School Board policies: sections 1008.24(1)(c), (1)(f), and (1)(g), 1012.22(1)(f), and 1012.27(5), Florida Statutes; Florida Administrative Code Rules 6A-5.056(2) and 6A-10.081(2)(a)(1), (2)(a)(5), and (2)(c)(1); and School Board Policies 0.01(2)(3) and (2)(4); 3.02(4)(a), (4)(d), and (4)(f); 3.02(5)(a)(ii), (5)(a)(viii), (5)(c)(vii) and (5)(i); 1.013(1); 1.1013; and 3.27; and article II, section M of the County Teachers' Association Collective Bargaining Agreement ("CBA"). The Administrative Complaint does not charge Respondent with having committed gross insubordination in violation of rule 6A-5.056(4). Evidence Adduced at Hearing The incident giving rise to this proceeding occurred on January 19, 2017, at Watkins, in Respondent's classroom and in the hallway immediately outside of Respondent's classroom. On that day, K.B., a student in Respondent's class, put her head down on her desk and refused to participate in the class's activities, despite being told repeatedly by Respondent to lift her head off of her desk and to participate in class activities. Frustrated with K.B.'s refusal to obey his repeated directives to lift her head off of her desk and participate in the class, Respondent ordered K.B. to get out of his classroom. The evidence does not clearly and convincingly establish whether, or what type, of physical interaction between Respondent and K.B. may have occurred as she was leaving, but was still inside the classroom.2/ The undisputed evidence establishes that as K.B. was walking toward the door to leave the classroom, she intentionally knocked a book off of a desk, causing it to fall to the floor. Respondent ordered K.B. to pick up the book, but she did not do so and exited the classroom. The evidence clearly and convincingly establishes that as K.B. opened the door and attempted to exit the classroom, Respondent detained her by grabbing her backpack. K.B. pushed forward in an attempt to resist being detained by Respondent, and as a result, fell to the floor in the hallway immediately adjacent to the open classroom door.3/ The evidence clearly and convincingly establishes that Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and dragged her back into the classroom.4/ Once K.B. and Respondent were back inside the classroom, Respondent ordered K.B. to pick up the book that she had pushed to the floor and to place it back on the desk. She complied, but then again intentionally pushed the book off of the desk onto the floor and again exited the classroom. The evidence clearly and convincingly establishes that as K.B. ran out of the open classroom door, Respondent again grabbed K.B. by her backpack. K.B. pushed forward to resist being physically detained by Respondent, and, as a result, again fell to the floor of the hallway. Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and again dragged her back into the classroom.5/ As K.B. and Respondent exited the classroom the second time, teacher Angela Hammond, whose classroom was immediately next door to Respondent's and who said she heard a "commotion," came out of her classroom into the hall. Hammond observed Respondent dragging K.B., who was lying on the floor, back into his classroom. Hammond entered Respondent's classroom and observed K.B. pick up a book that was on the floor, place it on a desk, and then slide it off of the desk onto the floor. At that point, Hammond took K.B. into her (Hammond's) classroom, and talked to K.B. in an effort to calm her down. At some point, Respondent also entered Hammond's classroom to talk to K.B. in an effort to determine if she was alright and to calm her down. The clear and convincing evidence, consisting of K.B.'s own testimony, establishes that she was not physically injured as a result of any aspect of the incident, including having been pulled by her ankle and wrist by Respondent. K.B. testified that she was extremely angry with Respondent as a result of the incident. The evidence establishes that before the incident, Respondent and K.B. enjoyed a mentor-mentee relationship. K.B. would talk to Respondent about her personal and school- related problems. Respondent would advise K.B. regarding engaging in more appropriate behavior at school, and would encourage her academic performance. K.B. testified that Respondent was one of her favorite teachers and that Respondent's class was the only one she had enjoyed in the 2016-2017 school year. To that point, K.B. wrote a letter to Respondent, telling him that she enjoyed his class, that he was a good teacher, and that she appreciated his help and encouragement. When asked whether the January 19, 2017, incident had changed her opinion of Respondent, she testified: "[n]ot really, because we both were in the wrong." Donald Hoffman, the principal at Watkins during the 2016-2017 school year, testified that the proper means for dealing with students who present behavioral problems during class is to use the in-classroom buzzer, which is mounted on the classroom wall, to call for assistance from school administration staff. Hoffman testified that all teachers at Watkins are apprised of this protocol. Respondent acknowledged that he was aware of this protocol, but that he did not use the buzzer to call for assistance in dealing with K.B.'s defiant behavior in the classroom or as she left the classroom. He acknowledged that he could have handled the situation in a more appropriate manner than he did in physically detaining K.B. Respondent testified, credibly, that he physically detained K.B. to prevent her from getting into trouble with the school's administration, and possibly being returned to the alternative school from which she had transferred, for having left his classroom during the class period. The Watkins Faculty & Staff Handbook ("Faculty Handbook") for fiscal year 2017 ("FY '17"), pages 33 and 34, contains a policy, regarding student detention. This policy states, in pertinent part: "The Principal, Assistant Principal, teacher, media specialist, or others engaged in administrative or instructional capacity in public schools, shall be authorized to temporarily detain and question a student under circumstances which reasonably indicate that such a student has committed, is committing, or is about to commit a violation of law." There is no persuasive evidence establishing that K.B. had committed, was committing, or was about to commit a crime. Therefore, the policy on pages 33 and 34 of the Faculty Handbook does not authorize Respondent's physical detention of K.B. Hoffman testified that the administration at Watkins does "not promote physical contact with students in any negative manner," and that, generally, only the administration is permitted to detain students at Watkins. Respondent previously has been disciplined by Petitioner.6/ One prior disciplinary action——consisting of a written reprimand issued on May 23, 2013, in which Respondent was reprimanded for engaging in "horseplay" with a student——is germane to this proceeding because it is an action that falls within the Progressive Discipline process established in the CBA, section 7.7/ Findings of Ultimate Fact The Administrative Complaint charges Respondent with having violated various statutes, State Board of Education rules, and School Board policies. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). 31. Here, Petitioner has charged Respondent with violating rule 6A-5.056(2), which states: 6A-5.056 Criteria for Suspension and Dismissal. "Just cause" means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335, F.S. In fulfillment of these laws, the basis for each such charge is hereby defined: * * * "Misconduct in Office" means one or more of the following: A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.; A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.; A violation of the adopted school board rules; Behavior that disrupts the student’s learning environment; or Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties. Petitioner also has charged Respondent with violating rule 6A-10.081(2), which states, in pertinent part: Florida educators shall comply with the following disciplinary principles. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: 1. Shall 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. * * * 5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. * * * (c) Obligation to the profession of education requires that the individual: 1. Shall maintain honesty in all professional dealings. Petitioner also has charged Respondent with violating various School Board policies. Specifically, Petitioner has charged Respondent with violating Policy 0.01, Commitment to the Student, Principle I, which states in pertinent part: 2. In fulfilling his obligations to the student, the educator-. . . 3. [s]hall make reasonable effort to protect the student from conditions harmful to learning or to health and safety; 4. [s]hall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement. Petitioner also has charged Respondent with violating Policy 1.013, Responsibilities of School District Personnel and Staff, which states: The district administrative staff shall be responsible for the efficient planning and administration of all supporting educational services such as maintenance, transportation, school lunch, personnel, purchasing, federal programs, payroll and other responsibilities as directed by the superintendent. The district administrative staff is also responsible for insuring that the appropriate district policies, state board of education rules, state laws, and federal laws and rules are adhered to. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules. District administrative staff. District instructional staff. The district level instructional staff shall be responsible for the cooperative development, supervision, and improvement of the district instructional program. The areas include in-service education, program evaluation, development of curriculum materials, educational specifications for school facilities, development of federal programs, accreditations, state program requirements and other responsibilities as directed by the superintendent. Pursuant to § 231.09, Fla. Stat., the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Teachers. It shall be the duty of the teacher to provide instruction, leadership, classroom management and guidance to pupils through democratic experiences that promote growth and development both as individuals and as members of society. Pursuant to § 231.09, F.S., teachers shall perform duties prescribed by school board policies relating, but not limited, to helping students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully; using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Petitioner also has charged Respondent with violating the following provisions of Policy 3.02, Code of Ethics: Accountability and Compliance Each employee agrees and pledges: To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace. * * * d. To treat all students and individuals with respect and to strive to be fair in all matters. * * * f. To take responsibility and be accountable for his or her acts or omissions. Ethical Standards a. Abuse of Students – We are committed to ensuring that employee-student relationships are positive, professional, and non- exploitive. We will not tolerate improper employee-student relationships. Each employee should always maintain a professional relationship with students, both in and outside of the classroom. Unethical conduct includes but is not limited to: * * * ii. Exposing a student to unnecessary embarrassment or disparagement. * * * viii. Engaging in misconduct which affects the health, safety, and welfare of a student(s). * * * c. Misrepresentation or Falsification – We are committed to candor in our work relationships, providing other Board employees including supervisors, senior staff and Board members with accurate, reliable and timely information. Employees should exemplify honesty and integrity in the performance of their official duties for the School District. Unethical conduct includes but is not limited to: i. Falsifying, misrepresenting, or omitting information submitted in the course of an official inquiry/investigation[.] Professional Conduct – We are committed to ensuring that our power and authority are used in an appropriate, positive manner that enhances the public interest and trust. Employees should demonstrate conduct that follows generally recognized professional standards. Unethical conduct is any conduct that impairs the ability to function professionally in his or her employment position or conduct that is detrimental to the health, welfare or discipline of students or the workplace. Unethical conduct includes, but is not limited to, the following: Failing to maintain any necessary certification or licensure required in the performance of job duties for the School District. Shall not knowingly and willfully make false statements about a colleague. Failing to report the alleged misconduct of a fellow employee, to cooperate fully during any investigation or to complete an investigation relative to allegations of misconduct of a fellow employee, which affects the health, safety or welfare of a student. Entering into a confidentiality agreement regarding terminated or dismissed instructional employees and school administrators, or personnel or administrators who are dismissed or resign in lieu of termination, based in whole or in part on misconduct that affects the health, safety or welfare of a student. Providing employment references or discussing the instructional personnel’s or school administrator’s performance with prospective employers in another educational setting, without disclosing the personnel’s or administrator’s misconduct. Petitioner also has charged Respondent with violating Policy 3.27, Suspension and Dismissal of Employees,8/ which provides: The purpose of this section is to promulgate rules regarding the suspension and dismissal of employees. These rules shall be read in conjunction with the procedures established for administrative hearings as set forth in Chapter 4, except, however, in the event it is determined that a conflict exists between these rules and those of Chapter 4, these rules will be controlling. Upon a finding of probable cause by the Superintendent sufficient to warrant a recommendation to the School Board for suspension without pay and dismissal, the Superintendent shall communicate in writing to the employee: A concise statement of the Superintendent's recommendation(s) to the School Board affecting the employee's employment status. A statement of the date, time, and place where the School Board shall meet to consider the Superintendent's actions and recommendation(s). A statement of the legal authority for the Superintendent's actions and recommendation(s). A short and plain statement of the charges made by the Superintendent against the employee. A statement of the time limit for requesting a hearing before the School Board. All employees recommended for suspension without pay and dismissal shall have the right to request a hearing provided such a request is made in writing to the School Board within 15 days of the receipt of the Superintendent's written notice. Any person who receives written notice from the Superintendent of a recommendation(s) for suspension without pay and dismissal and who fails to request a hearing within 15 days, shall have waived the right to request a hearing on such matters, and the allegations and charges as contained in the notice shall be deemed by the School Board to be true for the purpose of entering a final order on the Superintendent's recommendation(s). In the event a request for a hearing is timely made and received by the Office of General Counsel, by either an instructional employee with a continuing contract or by a noninstructional employee during the term of an annual contract, the procedure for conducting a hearing, unless otherwise determined by the School Board, is as follows: The Superintendent will file a petition for dismissal with the Division of Administrative Hearings (DOAH). This petition shall contain: The name and address of the School Board and the file or identification number, if known; The name and address of the employee, and an explanation of how the employee's substantial interest will be affected by the agency determination; A statement of when and how the employee received notice of agency decision or intent to render a decision; A statement of all disputed issues of material fact. If there are none, the petition must so indicate; A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the Superintendent to relief; A demand for relief to which the Superintendent deems himself entitled; and Other information which the Superintendent contends is material. The DOAH will assign a Hearing Officer to conduct the hearing. The employee and the employee's representative will be informed of the time and place for the hearing by the DOAH. Whenever possible, the hearing shall be held in the place most convenient to all parties as determined by the Hearing Officer. The hearing shall be conducted in accordance with Chapter 120, Florida Statutes. Within thirty (30) days after the hearing or receipt of the hearing transcript, whichever is later, the Hearing Officer shall file a recommended order to the School Board including a caption, time and place of hearing, statement of the issues, findings of fact and conclusions of law, and recommendations for final agency action. The School Board, within ninety (90) days of receipt of the Hearing Officer's recommended order, shall issue the final order. This shall be considered at a regularly scheduled School Board meeting. The School Board may adopt the Hearing Officer's recommended order as its Final Order. The School Board in its final order may reject or modify the conclusions of law in the recommended order but may not reject or modify the findings of fact unless the School Board first determines from a review of the complete record that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The School Board may reduce or increase the recommended penalty in a recommended order, but may do so only with a review of the complete record. The hearing must be conducted by the School Board within forty-five (45) days of the request for hearing. The hearing shall be conducted in accordance with Section 120.57, Florida Statutes. Following the close of a hearing before the School Board, the parties may submit proposed findings of fact, conclusions of law and recommended order, or legal briefs on the issues within a time designated by the School Board. If an employee does not specifically designate a hearing preference, the School Board shall follow procedures as listed in Section (5). If a request for a hearing is timely made and received by the Office of General Counsel by an instructional employee during the term of an annual contract or by an instructional employee with a professional service contract, either employee may elect to have a hearing before the DOAH or request that a hearing be held before the School Board. If the employee elects a hearing before the School Board, the following procedures shall apply: A majority vote of the membership of the School Board shall be required to sustain the Superintendent's recommendation. A final order shall be entered within ninety (90) days after the last date of the hearing or receipt of the hearing transcript, whichever is later. The determination of the School Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. Petitioner also cites, as a basis for its proposed discipline of Respondent, article II, section M, of the CBA, Progressive Discipline, which states: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence, which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information, which may be relied upon to take action against an employee, will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under this Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the Parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally with written notation, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the Parties. Except in cases which clearly constitute a real and immediate danger to the District, a District employee, and/or a child/children or the actions/inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand with a Written Notation - Such written notation shall not be placed in the employee's personnel file maintained at the District headquarters, but will be placed in a file at the school/department and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. The written notification shall be maintained at the school site/department pursuant to the District’s Records Retention Schedule. Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay - A suspension without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal - An employee may be dismissed (employment contract terminated) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Based on the foregoing findings of fact, it is determined, as a matter of ultimate fact, that by dragging K.B. by her wrist and ankle back into the classroom, Respondent violated rules 6A-5.056(2)(b), 6A-10.081(2)(a)1., and School Board Policy 0.01, section 3. Specifically, Respondent's actions did not constitute a reasonable effort on his part to protect K.B. from conditions potentially harmful to her health or safety. There was at least a possibility that K.B. could have been injured by being dragged across the floor by her wrist and ankle, and Respondent should have foreseen and understood that possibility. Additionally, it is determined that Respondent violated School Board Policy 3.02, section 4.d. By dragging K.B. across the floor by her ankle and wrist, Respondent did not treat K.B. with respect, as is required by that policy. Although Respondent detained K.B. in order to prevent her from getting into trouble and potentially transferred out of Watkins to an alternative school, he could have avoided having physical contact with K.B. by following the established protocol to use the classroom buzzer to summon school administration. As discussed above, Petitioner has taken one prior pertinent disciplinary action against Respondent, in the form of a written reprimand. As discussed above, section M of the CBA establishes Petitioner's progressive discipline policy. Section 7.d. of this policy states that except in cases which clearly constitute a real and immediate danger to the District, a District employee, or a child, or the actions or inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline is administered in a sequential manner, starting with a verbal reprimand with written notation; progressing to a written reprimand; then progressing to suspension without pay; and concluding with dismissal. Here, the clear and convincing evidence supports following the sequential penalty imposition established in section 7. of the progressive discipline policy. Specifically, the clear and convincing evidence supports suspending Respondent without pay, for the duration of his suspension, starting on the day on which he was suspended up to the date of entry of the final order in this proceeding. This penalty takes into account the serious nature of Respondent's conduct in dragging K.B. across the floor, but does not result in termination of a teacher who, by all accounts, is a very good teacher who cares deeply about his students, including K.B., and who puts forth extra effort to mentor to students in need of such support.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order finding just cause and suspending Respondent from his teaching position, without pay, commencing on the date on which he was suspended from his employment, and ending on the date on which a final order is entered in this proceeding. DONE AND ENTERED this 13th day of November, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 13th day of November, 2018.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her 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 as a science teacher at Thomas Jefferson Middle School (“Thomas Jefferson”), a public school in Miami-Dade County, Florida, pursuant to a professional services contract. Respondent was initially hired by the School Board as a teacher in 1994. 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”). Maria Fernandez, the principal of Thomas Jefferson, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year Principal Fernandez issued Respondent a letter of reprimand on February 8, 2011, concerning an alleged incident that occurred on January 4, 2011. The reprimand 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) cease and desist from engaging in any unprofessional conduct while serving as an employee of the School Board; (3) perform duties and responsibilities given to her by Principal Fernandez; and (4) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Principal Fernandez informed Respondent that failure to comply with the directives would result in further disciplinary action. On February 8, 2011, Principal Fernandez held a Conference for the Record (“CFR”) with Respondent regarding this alleged incident. The 2011-2012 School Year On November 11, 2011, Principal Fernandez called Respondent into her office to speak with her about the School Board’s policy regarding the appropriate use of e-mail. Respondent allegedly stormed out of the meeting and, in the process of doing so, called Principal Fernandez a “racist pig.” As she was leaving the office, two other administrators were in the vicinity, and Respondent allegedly stated: “I’m tired of dealing with you three pigs.” During a teacher-of-the-year faculty meeting in November 2011, Respondent allegedly called the assistant principal a “bully” and allegedly refused to leave the meeting after being directed to do so by the assistant principal. Principal Fernandez held another CFR with Respondent on November 29, 2011. Furthermore, Principal Fernandez issued Respondent another letter of reprimand on November 29, 2011, concerning these incidents, which again 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) cease and desist from engaging in any unprofessional conduct while serving as an employee of the School Board; perform duties and responsibilities given to her by Principal Fernandez; and (4) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Principal Fernandez informed Respondent that failure to comply with the directives would result in further disciplinary action. On May 24, 2012, Principal Fernandez observed Respondent in another teacher’s homeroom class. Principal Fernandez allegedly told Respondent she should not be in the other teacher’s class because she was interrupting that teacher’s supervisory duties of her students. In response, Respondent allegedly yelled, in a very loud voice, and in front of the students and teacher: “That’s what the grievance is all about. Get some dopamine.” Respondent then allegedly pulled her cellphone out of her pocket and said, “Here, let me record this.” As a result of this incident, Principal Fernandez held another CFR with Respondent on June 4, 2012. During the conference, Respondent chose to leave the meeting and walked out of the principal’s office. An employee is expected to remain in a CFR for the duration of the meeting. Principal Fernandez issued Respondent another letter of reprimand on June 4, 2012, concerning this incident and for gross insubordination, which directed Respondent to: (1) strictly adhere to all School Board rules and regulations, specifically, School Board Policy 3210 and 3210.01; (2) cease and desist from engaging in any unprofessional conduct while serving as an employee of the School Board; (3) perform duties and responsibilities given to her by Principal Fernandez; and (4) conduct herself, both in her employment and in the community, in a manner that will reflect credit upon herself and the School Board. Principal Fernandez informed Respondent that failure to comply with the directives would result in further disciplinary action. Because Respondent prematurely left the CFR, her UTD representatives signed the reprimand on her behalf. The 2012-2013 School Year On August 31, 2012, an Educational Excellence School Advisory Committee (“EESAC”) meeting was held in the media center at Thomas Jefferson. EESAC is an advisory committee comprised of parents, teachers, students, staff members, and business partners. The committee typically meets once a month at the school to review the school improvement plan and make decisions on how to improve the school. Respondent attended the meeting in her capacity as a representative of the UTD. During the meeting, Respondent told the chairperson that there was no quorum. Respondent then left the meeting. As she exited the meeting, Respondent stated: “This is why we’re an ETO school,” and she referred to the group as “fools.” A few minutes later, Respondent returned to the meeting, took the sign-out sheet with her without permission, and then left the meeting.1/ On September 20, 2012, Principal Fernandez met with the science department coach, Respondent, and two other science teachers to discuss ideas on how to improve the school. Principal Fernandez asked Respondent to share a document with the other teachers that Respondent said she had. Respondent became irate, refused Principal Fernandez’s request, and stated: “No, I’m not giving it to them. They can go to their own CRISS training like I did.” Respondent proceeded to stand up and threaten Principal Fernandez, stating: “Don’t worry, you’ll get yours.” Respondent then stormed out of the meeting. On September 20, 2012, Respondent sent an e-mail to MeShonika Green, another science teacher at Thomas Jefferson, regarding “Addressing your concerns.” In this e-mail, Respondent wrote: Ms. Green, Some of the members of the faculty have come to me to report that you were carrying on in the hall, claiming that you were in fear for your life because you thought I was going to come out and shoot up the school. I just wanted to put your fears to rest. Just because I speak my mind and am willing to stand up for what is right does not mean I will turn to physical violence. That is not me . . . I don’t believe in physical violence and have worked to promote that ideal. But from a psychological perspective it is the person that holds everything in that one day snaps and loses it. You know like tearing up a legal summons, throwing it in the face of a process server and becoming irate that they are arrested. I suppose that person could take it one step further and in what you said if the authorities did not intervene. But I only know what I’ve read in textbooks, I’ve never experienced it. But anyway I would appreciate if instead of you spreading this around the staff and faculty where students could hear you that you come and speak to me about any concerns you have with me, or at least talk to a therapist. Because your unsubstantiated remarks could be considered slander and as I am highly offended by your actions and they affect me professionally. If this were to happen again I would find it necessary to follow up through appropriate channels. Thank you in advance for understanding and acting accordingly [.] On September 24, 2012, Principal Fernandez met with Respondent to discuss the School Board’s e-mail policy, and Respondent’s inappropriate use of e-mails. At that time, Principal Fernandez provided Respondent with a memorandum regarding the appropriate use of e-mails. On September 27, 2012, Ms. Green sent Respondent an e-mail regarding “Addressing your concerns,” which states: “We are mature adults. You should not be listening to RUMORS or hear-say, especially when you see me almost everyday. This could be considered CYBER BULLYING. Thanks for your attention.” Shortly thereafter on September 27, 2012, Respondent responded to Ms. Green by e-mail as follows: Ms. Green, You are right chronologically we are two mature adults. This is in no way cyber bullying. This is me asking you to stop engaging in inappropriate behavior that slanders me, and me promising to take legal action if you don’t. So as a mature adult I am asking you to please stop and warning you of the consequences if you do not. Also there is no reason to yell (all caps), and it is not a rumor when three credible adults (as well as a number of less credible people) come to me at different times and state that they witnessed you doing this. Here say is when someone reports hearing that someone did something but did not see it. And yes I see you every day, and any attempt to communicate is met with negativity and usually ends in your saying “well you do what you want because I’m going to . . .” I hope this clears things up for you. Enjoy the rest of your day. On October 2, 2012, Respondent sent an e-mail to Mr. Yvetot Antoine, the science coach at Thomas Jefferson. As the science coach, Mr. Antoine assists all of the science teachers in implementing the science curriculum in their classrooms. The e-mail states: Mr. Antoine, Please stop sending me all these e-mails with attachments. I do not need my mailbox to go over its limit. I know you are just trying to do your job but as I already told you I already have my plan in place along with methods of assessment and analysis. I do not need to be bombarded with elementary solutions to a problem that you are only exasperating. The problem at TJ is that no one works together in the decision making process, decision are made that further divide the faculty and then they bring in people with little experience to cram their agenda down our throats. Most of us do what we need to and we do not need fixing. The fixing needs to start at the top and that is beyond both of our pay grades. If you need to send this stuff for your service log please use attachment manager. Mr. Antoine was offended and disheartened by this e-mail, because he did not believe that he was implementing elementary solutions or exacerbating a problem. Mr. Antoine forwarded the e-mail to Principal Fernandez. On October 11, 2012, Principal Fernandez met with Respondent to discuss the School Board’s e-mail policy, and Respondent’s inappropriate use of e-mails. At that time, Principal Fernandez provided Respondent with another memorandum regarding the appropriate use of e-mails. On October 18, 2012, Mr. Antoine entered Respondent’s classroom to conduct an informal observation. As the students entered the classroom, Mr. Antoine proceeded to the back of the room. Respondent appeared very serious and disturbed by Mr. Antoine’s presence in the classroom. As the students settled into their seats, Respondent asked the students to raise their hands if they felt that Mr. Antoine’s presence in the classroom was disturbing. In response, some of the students raised their hands. Shortly thereafter, Respondent asked the students again to raise their hands if they felt Mr. Antoine’s presence in the classroom was disturbing. In response, most of the students raised their hands. At this point, Respondent announced to the class that “she would not share her classroom in an oppressive environment where she feels like her civil rights were being violated.” By this time, Mr. Antoine was sitting at a table in the back of the classroom, and he had not said anything to Respondent. Respondent paced up and down the classroom and instructed the students to write definitions for six vocabulary words that were posted on the board. As she paced up and down the classroom, Respondent pulled out her cellphone and tried unsuccessfully to call someone. Respondent then returned to her seat and announced to the students that she has over 20 years of experience and that “I was teaching when this guy [Mr. Antoine] was still in high school.” At this point, the only instruction Respondent had given her students was to tell them to define six vocabulary words. As the class period progressed, Respondent did not give any further educational instruction to her students. Instead, Respondent proceeded to the back of the classroom where Mr. Antoine was sitting, pulled up a chair, and sat directly across from him. Respondent looked directly at Mr. Antoine and stated in front of the students: “I’m going to stare at those eyes that are observing me.” After a while, Respondent got up, went back to her desk, and was at her computer. Toward the end of the class period, Respondent handed a stack of papers to one of her students. The student walked to the back of the classroom and gave the stack of papers to Mr. Antoine. The papers were titled, ”Responsibilities of the Coach-Instructional Coach.”2/ As a result of these incidents from August through October 2012, Principal Fernandez held another CFR with Respondent at some point in October 2012. On November 7, 2012, Respondent encountered Eulalee Sleight, another teacher at Thomas Jefferson. On that date, Ms. Sleight was meeting with a student when Respondent commented, in front of the student, “Do you know I’m not going to be your teacher anymore?” “Because I’m making sure they follow rules. They don’t like to follow rules at this school.” At the end of this same school day, Respondent walked up to Ms. Sleight and took a picture of her and a student who was Ms. Sleight’s assistant. In the presence of the other student, Respondent stated: “This is to show the illegal things that’s happening at the school.”3/ On November 8, 2012, Respondent encountered Thomas Jefferson School Counselor Luis Chiles at Mr. Chiles’s office. On this occasion, Mr. Chiles was in a meeting with an ESOL (English speakers of other languages) teacher, conducting a review of students. Respondent had no business being in the meeting. Nevertheless, Respondent opened the door to Mr. Chiles’s office and stepped inside Mr. Chiles’s office. Respondent was agitated, very upset, and told Mr. Chiles that she hoped he was happy that she was going to lose her job. Mr. Chiles was dumbfounded and did not respond to Respondent’s comment. Respondent then exited the office. As a result of all the foregoing incidents, Principal Fernandez recommended to the School Board that Respondent’s employment be terminated. Thereafter, the School Board recommended that Respondent’s employment be suspended pending dismissal. The evidence at hearing failed to show that Respondent’s conduct on June 4, 2012, constitutes misconduct in office, gross insubordination, or a violation of applicable School Board policies. The School Board merely showed that Respondent chose to leave the CFR with Principal Fernandez, and that she was expected to stay for the duration of the meeting. Respondent’s conduct may have been inappropriate, but the School Board failed to show that the conduct violated School Board policies, and was “so serious as to impair the [Respondent’s] effectiveness in the school system,” so as to constitute misconduct in office. Furthermore, the School Board failed to show that Respondent’s conduct involved “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority,” so as to rise to the level of gross insubordination. The evidence at hearing failed to show that Respondent’s conduct at the EESAC meeting on August 31, 2012, constitutes misconduct in office, gross insubordination, or a violation of applicable School Board policies. Respondent attended the meeting in her capacity as a representative of UTD. Although Respondent may have been rude during the meeting, given the context in which this incident occurred (this was an EESAC meeting--not a classroom situation involving students), the School Board failed to establish that Respondent engaged in conduct which rose to the level of misconduct in office, gross insubordination, or a violation of School Board policies. The evidence at hearing showed that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2), and that she violated School Board Policies 3210 and 3210.01. Respondent engaged in conduct which is unseemly in the workplace and reduces a teacher’s or her colleagues’ ability to effectively perform duties when she met with Principal Fernandez, the science department coach, and two other science teachers on September 20, 2012, to discuss ideas on how to improve the school. When asked by Principal Fernandez to share a document with the other teachers, Respondent became irate and refused to do so. Respondent also violated this rule and School Board Policies 3210, 3210.01, and 3380, when she stood up during the meeting and threatened Principal Fernandez, stating: “Don’t worry, you’ll get yours,” and stormed out of the meeting. Such conduct created a hostile, intimidating, abusive, offensive, or oppressive environment, and involved threatening behavior consisting of words that intimidated Principal Fernandez. The evidence at hearing failed to show that Respondent’s conduct on September 20, 2012, constitutes 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. The evidence at hearing failed to show that Respondent’s e-mails to Ms. Green on September 20 and 27, 2012, and Respondent’s e-mail to Mr. Antoine on October 2, 2012, constitute misconduct in office, gross insubordination, or a violation of applicable School Board policies. The School Board failed to present its e-mail policy at the hearing. Given the context and nature of the emails (between adults and not involving students), and the fact that the School Board failed to present its e-mail policy at the hearing, the School Board failed to meet its burden to establish that the e-mails rose to the level of misconduct in office, gross insubordination, or constitute a violation of applicable School Board policies. The evidence at hearing showed that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2), and that she violated rules 6B-1.006(3)(a), (f), (5)(d), and School Board Policies 3210 and 3210.01, by engaging in conduct which is unseemly in the workplace and disruptive to the students’ learning environment; failed to make reasonable effort to protect students from conditions harmful to learning; violated the students’ legal right to an education; engaged in behavior that reduces her ability or her colleagues’ ability to effectively perform duties or the orderly processes of education; and created a hostile, intimidating, abusive, offensive, or oppressive work environment. Respondent violated these rules and policies when she: 1) asked students in the classroom on October 18, 2012, if they felt that Mr. Antoine’s presence in the classroom was disturbing, they should raise their hands; 2) announced to the students in the classroom that “she would not share her classroom in an oppressive environment where she feels like her civil rights were being violated”; 3) paced up and down the classroom and placed a personal telephone call during class while only instructing the students to write definitions for six vocabulary words that were posted on the board; 4) announced to her students that she has over 20 years of experience, and that “I was teaching when this guy [Mr. Antoine] was still in high school”; 5) proceeded to the back of the classroom, sat across from Mr. Antoine, and announced to the class: “I’m going to stare at those eyes that are observing me”; and 6) handed a stack of papers to one of her students titled, “Responsibilities of the Coach–Instructional Coach,” and had the student hand the stack of documents to Mr. Antoine. Respondent’s conduct on October 18, 2012, sought to advance her personal agenda, was not conducive to her students’ learning, and was harmful to the students’ learning. Respondent effectively used the students in her classroom as pawns in her personal battle against the administration and her colleagues. Rather than focusing on Mr. Antoine’s presence and her personal battle, Respondent should have focused on the students and teaching the students. Respondent’s conduct on October 18, 2012, has no place in a middle school science classroom. The evidence failed to show that Respondent’s conduct on October 18, 2012, rose to the level of gross insubordination in violation of rule 6A-5.056(4), in that the conduct did not involve the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. The evidence at hearing showed that Respondent is guilty of misconduct in office in violation of rule 6A-5.056(2), and that she violated rules 6B-1.006(3)(a), (f), and (5)(d), and School Board Policies 3210 and 3210.01, by engaging in conduct which is unseemly in the workplace and disruptive to the students’ learning environment; failed to make reasonable effort to protect students from conditions harmful to learning; violated the students’ legal right to an education; engaged in behavior that reduces her ability or her colleagues’ ability to effectively perform duties or the orderly processes of education; and created a hostile, intimidating, abusive, offensive, or oppressive work environment. Respondent violated these rules and policies when she: 1) interrupted a meeting between Ms. Sleight and another student on November 7, 2012; 2) told the student “Do you know I’m not going to be your teacher anymore?” “Because I’m making sure they follow rules. They don’t like to follow rules at this school”; and 3) took a picture of a student who was Ms. Sleight’s assistant and stated: “This is to show the illegal things that’s happening at the school.” Through her conduct on November 7, 2012, Respondent again sought to advance her personal agenda, failed to engage in conduct conducive to the student’s learning, and engaged in conduct harmful to the students’ learning. Respondent effectively used the students as her pawns in her personal battle against the administration and her colleagues. Raising a legitimate complaint through the proper channels is one thing. However, a middle school teacher cannot use students as her pawns and air her personal battles to students in an effort to advance her personal agenda.4/ The evidence failed to show that Respondent’s conduct on November 7, 2012, rose to the level of gross insubordination in violation of rule 6A-5.056(4), in that the conduct did not involve the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. The evidence at hearing failed to show that Respondent’s encounter with Mr. Chiles on November 8, 2012, constitutes misconduct in office, gross insubordination, or a violation of applicable School Board policies. The evidence presented at hearing did not establish that Respondent knew Mr. Chiles was in a meeting when she opened the door. It would have been polite for Respondent to knock first. Nevertheless, merely opening a door that is not locked, and telling a colleague that she “hoped he was happy that she was going to lose her job,” and then turning around and leaving, does not rise to the level of misconduct in office, gross insubordination, or a violation of School Board policies.
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 29th day of July, 2014, 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 29th day of July, 2014.
