The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any 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." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: 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 workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of March, 2011.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of alleged misconduct which is set forth in an Administrative Complaint. The misconduct alleged consists primarily of allegations that the Respondent engaged in inappropriate physical touching of a female student.
Findings Of Fact M. A. is a thirteen year old student at West Miami Middle School. At the time of the alleged incident, she was twelve years of age, was approximately five feet, three inches, tall, and weighed about one hundred sixty pounds. She had gained about twenty or thirty pounds more as of the time of the formal hearing in this case. The School Trust Counselor, Diana De Cardenas, had been seeing M. A. and M. A.'s sister for eating disorder problems because both girls were somewhat overweight. The counsellor had seen M. A. on several occasions because of allegations that M. A.'s mother and M. A.'s brother were hitting her at home. Her brother did not want her to eat and when he saw her eating he would beat her. M. A. saw the counsellor because of these facts and was often upset and crying. The Respondent, Millard Lightburn, is forty-two years old and has been a teacher for over fifteen years. The Respondent is Hispanic. He previously taught school in Nicaragua and speaks both English and Spanish. The accusing child, M. A., is also Hispanic. The Respondent taught a computer application course and from time to time he would use students to help file papers and keep records. Shortly before the time of the alleged incident, the Respondent asked two students, M. A. and a male student named L. D., to help him file papers and perform other similar paperwork tasks. The student named L. D. did not come to help the Respondent on the day in question because L. D. was asked by another teacher to help with a problem in the cafeteria. On the day in question, the Respondent was having lunch while working in his classroom. M. A. was in the class alone with him helping him file papers and perform other similar paperwork tasks. This was the second day that M. A. had assisted the Respondent with the paperwork. As the work was finished, the Respondent said to M. A., "Thank you very much; thank you for your help." He put his hand on her shoulder and put his cheek next to hers and gave her a peck on the cheek in a manner that is customary and traditional among Hispanics in Dade County, Florida. The Respondent demonstrated this gesture at the hearing. This same gesture was also demonstrated by two other witnesses, Shirley B. Johnson and Assistant Principal Eldon Padgett. West Miami Middle School is about 93 percent or 94 percent Hispanic. In that school and in the Hispanic community served by the school, it is customary for people to hug and to touch one another on the cheek or to give one another a peck on the cheek. Such conduct is common at all Hispanic schools in Dade County, Florida. The gesture demonstrated by the Respondent and by two other witnesses is a customary Hispanic gesture in Dade County, Florida, and is not considered to be offensive or inappropriate by other members of the Hispanic community. The Respondent, Millard E. Lightburn, did not at any time touch the student, M. A., in an inappropriate or offensive way.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 11th day of October, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-06174 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3, 4, and 5: Accepted in substance. Paragraph 6: Accepted in substance, but with the additional findings to the effect that another student had been invited to be present at the same time as the student, M. A. Paragraph 7: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 8: Rejected as constituting subordinate and unnecessary details, or as irrelevant. Paragraph 9: Rejected in part as subordinate and unnecessary details and in part as contrary to the greater weight of the persuasive evidence. Paragraph 10: Accepted in substance. Paragraphs 11 and 12: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraph 13: First line rejected for reasons stated immediately above. The remainder of this paragraph is accepted in substance. Paragraphs 14, 15, 16, 17, and 18: Rejected as contrary to the greater weight of the persuasive evidence. The student, M. A., and the Respondent testified to two very different versions of events on the day in question. Considering all of the evidence in context, the Hearing Officer has found the Respondent's version to be more credible than the version described by M. A. Paragraphs 19, 20, 21, 22, 23, 24, and 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted in substance. Paragraphs 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details. Paragraph 32: The first three full lines and the first four words of the fourth line are accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the persuasive evidence. Paragraph 33: Rejected as contrary to the greater weight of the persuasive evidence. Findings submitted by Respondent: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as subordinate and unnecessary details and as also irrelevant. Paragraph 12: Accepted in substance. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of July, 2013.
The Issue Whether Rita M. Green (Respondent), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Brevard County Public School District (school district). As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, Respondent was an employee of Petitioner and was subject to the disciplinary rules and regulations pertinent to employees of the school district. Respondent was assigned to teach an exceptional student education class at University Park Elementary School (UPES). Respondent's class at UPES consisted of a group of pre-K handicapped students with varying exceptionalities. Respondent allowed two students from a nearby sixth grade class to "help out" during a portion of the school day. Additionally, a full- time teacher's aide was assigned to Respondent's class who also assisted Respondent with the students. It is undisputed that Respondent's students were challenging due to their various limitations and exceptionalities. One of the students in Respondent's class was a young, non-verbal autistic child who typically spent only a half day at the school. The child, who was three or four years old, brought food for the lunch period but would primarily eat the finger foods packed by the mother that did not require a utensil. The child's mother packed a special spoon with a certain design and color that the child used for foods like applesauce. Autistic children require consistency and a strict adherence to routine. Deviations from their comfort zone and routine can lead to tantrums or other undesirable reactionary behaviors. The autistic child in Respondent's class was typical in this regard. The student did not adjust well to change and would exhibit adverse responses to the unexpected. Respondent knew the child well enough to understand the need for, and the importance of, consistency and adherence to routine. With regard to the student's individual education plan (IEP), the student was to begin working on feeding skills using a hand-over-hand teaching method. Eventually it was expected that the student would develop the skill to self-feed those foods requiring a utensil. Force feeding was not prescribed by the IEP or expected by the student. In fact, whether or not the student actually consumed food was not required by the IEP. On February 18, 2009, Respondent's aide began to set up the lunch foods for the students in the class. This was one of the aide's assigned duties and was a routine of the class day. With regard to the autistic student previously described, the aide set out the finger foods packed in the lunchbox as well as jars of other foods requiring a utensil. Unfortunately, the student's mother had forgotten to pack the special utensil that the student was accustomed to using/seeing. The student began to eat the finger foods and did not display any agitation or poor conduct. When Respondent approached the student with a disposable "spork" that she intended to use for the food in jars, the child began to tantrum. It was evident the autistic student did not react well to the spork. Respondent observed the adverse reaction but persisted in her efforts to feed the student. She wrongly presumed that if the student would taste the food, the familiarity of the food would overcome the adverse reaction to the spork. The more Respondent tried to get the student to eat, the more the student resisted and fought. At one point Respondent enlisted the assistance of one of the helper sixth grade students (both of whom were in the classroom at the time). Respondent directed the student to hold the autistic child so that she could put the spork/food into the student's mouth. Despite continuous opposition from the child, Respondent held the student's face with one hand and used her other hand to shove food toward the student's mouth. This behavior was confirmed by both of the sixth graders as well as the aide who was also present. As a result of the incident described above, the autistic student was left with bruises that depicted a handprint on one side of the face. This bruising remained visible the next day and was photographed by authorities. Respondent maintained that the student had caused the injuries by resisting and pulling away from her. It is common for autistic children to injure themselves during tantrum events. Nevertheless, had Respondent not held the face so tightly, the bruising would not have occurred. The simple solution to avoid the injury would have been for Respondent to release the student when the adverse reaction to the spork began. In fact, the proper response to any stimulus that causes an adverse reaction with an autistic child is to remove the offending trigger. Autistic children will continue to respond adversely so long as the offensive trigger remains. In this case, Respondent merely wore the student out. The thrashing and resistance continued until the student could fight no more. When the student was scheduled to go home (at the usual pick up time), Respondent advised the mother that the student was asleep. She returned later to pick up the child but noticed the student's demeanor and behavior were different. Further, the bruising on the student's face was evident. The mother accepted Respondent's explanation for the discoloration. Troubled by what she had observed Respondent do, the aide reported the incident to school administrators. Administrators spoke with the two sixth-grade students who had been in the class at the time of the incident who corroborated the aide's representation of what had occurred. The witnesses confirmed Respondent restrained the child with her legs, held the student's face tightly with one hand, and attempted to shove food with the spork. As is required by law, the school administrators reported the incident to authorities who initiated an investigation into abuse allegations. Respondent did not then, and did not at hearing, accept responsibility for causing the bruising on the student's face. Nevertheless, it is undisputed that as a direct result of Respondent's behavior the autistic student suffered bruising. No other person grabbed the student's face and held it with the force necessary to leave bruises. Respondent failed to understand that such behavior is unacceptable. Respondent failed to acknowledge that the proper response to the student's adverse reaction would have been to let the student go. Respondent was not required to feed the autistic student. Respondent was not required to hold the student so tightly that bruises were left. Respondent was not preventing the student from self-injurious behavior. The student in question was not the first autistic child assigned to Respondent's class. Prior to the incident complained, of Respondent had many times dealt with students who were similarly handicapped or limited. Prior to the incident complained of, Respondent had enjoyed a good reputation for dealing with a challenging student population. Respondent offered no credible explanation for why her behavior on the date in question deviated from acceptable teaching standards. Teachers in Florida are not allowed to physically harm students. Subsequent to the investigation of the incident Respondent was suspended from her teaching duties. On May 5, 2009, Richard A. DiPatri, acting as superintendent for the school district, notified Respondent that he intended to recommend termination of her employment as a teacher at the May 12, 2009, meeting of the Brevard County School Board. The notice further explained the basis for the termination and stated, in pertinent part: The reason for my decision is that an investigation has shown that on or about February 18, 2009, you physically abused a 3 year old special needs student assigned to your Pre-K handicapped class at University Park Elementary School. Specifically, you attempted to force feed the student by shoving a spoon down his throat while holding him by the head and neck. In doing so you used such force that the student was gasping for air and spitting up the food and suffered bruises on his face, neck and back. Respondent timely challenged the proposed termination and the matter was appropriately forwarded to the Division of Administrative Hearings for formal proceedings.
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 terminating Respondent's employment with the school district. DONE AND ENTERED this 28th day of April, 2010 in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 28th day of April, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Matthew E. Haynes, Esquire Jeffrey Sirmons, Esquire Johnson and Haynes, P.A. The Barrister’s Building 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard A. DiPatri, Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue The issues are whether Respondent is guilty of misconduct in office, as alleged in the Petition for Termination dated May 19, 2014, and if so, whether termination of her employment is an appropriate sanction.
Findings Of Fact The Parties and the Charges Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent is an instructional employee who received a bachelor's degree in special education in 2007 from Florida Gulf Coast University. She is certified to teach (a) special education kindergarten (K) through grade 12; (b) pre-K through grade three; (c) English to speakers of other languages; and (d) general education K through grade six. Also, she has completed three of four masters level courses in autism required to obtain her Autism Endorsement. On October 1, 2010, Respondent acquired her professional services contract. As an instructional employee, Respondent's employment is governed by the Collective Bargaining Agreement between the Board and the Teacher's Association for Lee County (TALC). In order to terminate an employee under the TALC contract, just cause is required. The incident which gave rise to this proceeding took place on December 12, 2013, at which time the Board alleges Respondent improperly restrained a special education student in her classroom. Several months later, after the parents of two other students in her classroom learned about the incident, they came forward and, for the first time, expressed concerns about behavioral issues with their children and physical injuries (bruises on the legs and a scratch mark) that they attributed to Respondent. (A third parent also telephoned the school but did not wish to file a complaint.) The parents' complaints triggered the Board's proposed action. In a Petition for Termination dated May 19, 2014, the Board alleged that just cause exists for terminating Respondent for the following acts of misconduct while teaching a special education class at Caloosa during school year 2012-2013 and the fall of school year 2013-2014: She improperly restrained a student in her classroom on December 12, 2013; She exhibited "a pattern of inadequate classroom supervision and academic focus prior to that incident"; She yelled at students and was relentless when a student refused to perform a task; She was observed by a colleague attempting to force feed a student; She told a student, "I'm bigger than you, I will win"; The school received complaints from the parents of two children that they noticed an escalation of negative behavior in their children while they were students in her classroom; One of the two parents alleged that her child's behavior immediately improved after the child was withdrawn from the school in February 2014; and The second parent alleged that her child would come home from school with bruises on his legs; that his speech and behavior immediately improved after Respondent left school; and that the child had significant diaper rash and full diapers on several occasions when he arrived at his after-school provider. Respondent does not dispute the allegation that she told a student "I'm bigger than you, I will win." Even so, the undersigned has assigned that statement little, if any, weight in resolving this dispute. Respondent's Employment Prior to School Year 2012-2013 In the spring of 2007 Respondent completed her paid internship with the Board as a student teacher. In August 2007 she was hired by Caloosa on an annual contract teaching intensive academics to students with learning disabilities in grades K through two. At the end of her first year of teaching, Respondent received a performance assessment of high performing and/or satisfactory in all categories. Shelley Markgraf, her evaluator and then the assistant principal of Caloosa, noted that Respondent had a "rough start" but ended the year "with a strong finish" and that Markgraf was "very proud" of her accomplishments. Pet'r Ex. 7, p. 73. Respondent's contract at Caloosa was not renewed at the end of the year. There is no evidence, however, that the non- renewal was due to poor performance. In school year 2008-2009, she was hired by Veterans Park Academy for the Arts (VPA), another District school, where she continued teaching for the next four years. During that four-year period, she taught K, first, and second grade special education students with autism. All were low-functioning students who were not capable of receiving a regular diploma when they finished high school. She was rated as satisfactory or effective for each of those years. School Year 2012-2013 Respondent elected to return to Caloosa for the 2012- 2013 school year, primarily because Caloosa was located closer to her home. By then, Markgraf was principal, and even though Markgraf had misgivings about hiring Respondent, she was hired because of a lack of applicants qualified to teach ESE students. Respondent was assigned to teach a small pre-K social communications class with less than ten autism students. The students were three to five years of age, on the autism spectrum, and many were behaviorally challenged, easily frustrated, and had social communication deficiencies. During most of the year, Respondent's paraprofessional (helping teacher) was Sara Catalano. It is fair to say that the working relationship between the two was not good. Catalano eventually left Respondent's classroom before the end of the school year because she felt she could not continue to work with Respondent. According to Catalano, Respondent did not prepare for class, her continual "scrambling" at the last minute to get activities prepared created a very "stressful" environment, and Catalano felt her efforts could be better served in another classroom. Respondent attributes her preparation deficiencies to the fact that Caloosa used a set teaching curriculum for exceptional students, which had not been used at VPA, and it took time and effort to adapt to the new requirements. On October 10, 2012, Caloosa's Behavioral Specialist, Crystal Dormer, wrote a memorandum to the administration regarding various things she had observed when she visited Respondent's classroom four or five times a week. See Pet'r Ex. 11. As further explained by Dormer at hearing, many times she found Respondent in the bathroom and not supervising the students. She estimated that Respondent went to the bathroom approximately ten to 15 times per day and spent up to 12 minutes in there each time. She characterized Respondent as having controlling behavior, relentless in forcing a student to complete a task, and lacking in patience, as evidenced by her yelling at the students. On one occasion, Dormer observed Respondent attempting to force feed a student who brought his own lunch from home and refused to try the school food. Finally, she was concerned with Respondent's "sporadic mood swings" when she would be calm and pleasant with the students and then suddenly begin yelling at them. On October 12, 2012, Respondent was issued a Letter of Concern by Markgraf regarding "the many concerns various people have had that have come in and out of [her] room." Pet'r Ex. These concerns included "screaming" at students (which was heard by teachers and other personnel passing by the classroom), failing to supervise her students, using her cellphone "all the time" during class for personal calls (most of which were made to her husband in a loud and argumentative tone), being easily frustrated with other teachers, and having a lack of patience with the students. School policy is for teachers to have their cell phones turned off during the day and used only for emergencies. Finally, two teacher aides asked to be removed from her classroom because "they were uncomfortable with the way things were going." In the Letter of Concern, which addressed only some of the complaints received by Markgraf, Respondent was specifically instructed to not have her cell phone out when supervising students; supervise her classroom at all times; treat students with respect; not attempt to force students to try the school lunch if they brought a lunch from home; and focus on school issues rather than personal issues at home. Pet'r Ex. 16. Respondent did not deny the allegations or protest receiving the Letter of Concern. On April 8, 2013, Respondent received a Letter of Reprimand for Unsatisfactory Performance for sleeping during "naptime" at her desk. Pet'r Ex. 17. The incident was first reported by Catalano who, after knocking on the door, entered the classroom to obtain supplies (pencils) and noticed that for around four minutes, Respondent sat at her desk with her head lowered and did not raise her head or otherwise acknowledge her presence. The assistant principal, Diana Lowrey, then went to the classroom and observed Respondent with her head down and appearing to be asleep. Although Respondent contended that she was not sleeping but was holding her head down while waiting for a pain reliever to start relieving a migraine headache, this explanation was not accepted. The Letter of Reprimand directed Respondent to remain awake and alert during all supervisory time periods or call somebody to cover her classroom. The Letter indicated that she had violated School Board Policy 4.01 regarding student safety. The performance evaluation for school year 2012-2013 had a rating scale that included, from best to worst, Exemplary, Accomplished, Basic, and Requires Action. Basic means you need improvement, while Requires Action means something is drastically not right. In the 20 areas evaluated for Respondent that school year, Respondent received one Exemplary (Communicating With Families). According to Markgraf, "parents loved her" because she was "very good at communicating" with them. She also received nine Accomplished, nine Basics, and one Requires Action. See Pet'r Ex. 7. The Requires Action was in the area of Establishes and Manages Classroom Procedures. Id. Markgraf testified that she wanted Respondent to "improve on classroom supervision" and "to improve on the way she spoke to and treated kids, and her peers." In her written comments, Markgraf noted that "[w]hile she had done some great things in her classroom and with her peers, there are some things I would like to see improved for next year." Pet'r Ex. 7, p. 51. Markgraf went on to say that there "have been a couple of instances where supervision has not been optimal in the classroom, this needs to improve to 100%. On days when Shawna is not 100%, she has frustration problems with students and is not always respectful to them, and is not always prepared." Id. The evaluation concluded that "Shawna has done everything I've asked of her this year and I look forward to a very successful next year." Id. School Year 2013-2014 Respondent returned to Caloosa for school year 2013- 2014. Although she was still one course short of obtaining her Autism Endorsement, she was again assigned to teach pre-K autistic students. The class began with four students but by October 2013 had increased to eight. Most of the students were new to a school environment, their academic levels were much lower than the students she had the year before, and they were either nonverbal or had very limited verbal communication. In short, they were a far more challenging group to manage than the students she taught the previous year. Respondent's paraprofessional was Andrea Schafer. A second paraprofessional, Deborah Wagner, spent approximately 90 minutes per day in the classroom after the classroom size reached eight students. At the beginning of the school year, Markgraf instructed Schafer to immediately inform her of any concerns regarding Respondent's conduct or classroom management. Until December 2013, Schafer did not report any concerns to Markgraf. Undoubtedly, as Markgraf suggested, this was because "teachers and staff don't like to tell on each other," but wait until "things have spiraled out of control." When Schafer concluded that things were going "downhill," she spoke with Markgraf on December 6, 2013. She reported that Respondent was engaged in "troubling behavior," and that she was spending "more and more time in the bathroom" and "more time on her phone" texting messages, mainly to her husband. Also, Schafer reported that Respondent would allow the students to just sit in front of the "You Tube videos" for academic lessons, rather than presenting live instruction. While this took place, Respondent would go to the restroom, presumably to use her cell phone, leaving Schafer to manage the classroom. With Markgraf's approval, Schafer began keeping detailed notes on index cards regarding Respondent's performance. See Pet'r Ex. 9. As it turned out, Respondent was suspended a few days later so notes were only recorded for Respondent's activities on December 9, 10, and 11, 2013. They reflect, among other things, that Respondent continued to remain in the bathroom for long periods of time (up to 19 minutes), and she was using her cell phone for personal calls. The notes also reflect that student D.M. was very non-compliant and disruptive, that Respondent had difficulty managing him, and that D.M.'s father met with Respondent in the classroom on December 10, 2013. The other paraprofessional, Wagner, confirmed that after she was assigned to the classroom in October, she observed Respondent spending "a lot" of time in the bathroom, especially when the children were eating, and that she would put her cell phone away when leaving the bathroom. This led Wagner to conclude that Respondent was using her cell phone while in the bathroom. The December 12, 2013 Incident One of Respondent's students was D.M., then four years old, who had transferred to Caloosa in October 2013 from a school in New York City. According to Markgraf, D.M. "was a big kid, and he was violent when he went off, and it wasn't a secret in school." Dormer described him as "aggressive, noncompliant, and disruptive," and that he would "hit, throw things, scream, pinch, [and] bite on occasion." She testified that D.M. was one of two out of 35 autistic students that year that caused her the most problems. Wagner testified that D.M. "had more frequent temper tantrums" than other students and that if you asked D.M. to do anything, he would start crying. Schafer agreed with Wagner's assessment and noted that Dormer had to be called a number of times to remove him from class. At hearing, D.M.'s mother testified (through an interpreter) that as a disciplinary measure at home, her husband would take off his belt and show it to D.M. whenever he misbehaved, but she denied that he ever used it when punishing the child. However, on a visit to Respondent's classroom on December 10, 2013, the father took off his belt and offered to give it to Respondent to use on his son if a disciplinary problem arose. In sum, the evidence shows that D.M. was probably the most difficult autistic child in the school to manage and teach. The incident in question began on the morning of December 12, 2013, after Respondent attempted to have D.M. perform a counting exercise from one to 100. Completing the exercise was necessary before the Christmas break in order for a new Individualized Education Program (IEP) to be prepared for D.M. His current IEP had been prepared in New York and needed to be revised to conform to Florida requirements. Rather than count, D.M. wanted to play on the computer, his favorite activity. At that point he became combative and disruptive. While changing the diapers of a student in the bathroom that adjoins the classroom, Schafer heard yelling in the classroom. When she entered the classroom, she observed D.M. sitting in a chair in front of a table in the back of the room with Respondent standing behind him. D.M. was "very upset and very aggressive" and swinging his arms in an effort to free himself. Schafer stated that Respondent had her hand on the back of D.M.'s neck and was attempting to push his head onto the table in front of him. Respondent says she was simply trying to keep the child seated until the counting exercise was completed. Schafer also observed Respondent holding D.M.'s fingers and pushing them into his wrist in an effort to restrain him from hitting her. When D.M. attempted to bite Respondent, she raised his arm towards his mouth to prevent this. While this was occurring, D.M. was complaining that it hurt and was crying. At one point, Respondent held D.M.'s arms behind his back. Schafer asked Respondent if the behavioral specialist should be called to the classroom. She asked because on prior occasions when D.M. was having a "temper tantrum" or refusing to comply with instructions, Dormer, who "helps out when a student is in crisis," had been called to the classroom to assist Respondent. Respondent replied that this was not necessary. Wagner was present for a part of the incident. She walked into the classroom and observed Respondent standing behind D.M., who was crying and seated in a chair in front of a table. Respondent's hand was on D.M.'s neck pushing his head toward the table. Respondent asked Wagner to stand behind D.M. and hold him while she temporarily left the area to pick up items needed for the other students. Although she did not see Respondent take D.M.'s hands and push his wrists down, she stated that Respondent had done this on a few other occasions whenever a student attempted to bite her. Schafer says the incident was over "pretty quick," and after continual prompting by Respondent, D.M. completed most or all of the counting exercise and was allowed to go to a computer. The student did not suffer any physical injuries during the incident. Schafer did not immediately report the incident, as she was unsure if the techniques being used by Respondent were appropriate, and she did not want to get Respondent in trouble if they were allowed. During lunch hour, she checked with Wagner to see if Respondent's actions may have been authorized. Wagner was not trained in that area and was unsure. After lunch, Schafer discussed the incident with Dormer, who then reported the matter to Markgraf. Respondent testified that her method of restraining D.M. was a safe and effective way to restrain him while he was out of control and was consistent with her training at VPA. She explained that when a special education student resorted to bad behavior as a tactic for not completing a task, she was trained to complete a "work through," which essentially requires the student to finish the task regardless of their behavior. However, this assertion was not corroborated by any personnel from VPA. She also stated that the restraint was consistent with training she had received for her Techniques for Effective Adolescent and Child Handling (TEACH) certification. However, her certification had lapsed, she had not received current training in order to become recertified, and her understanding differed from Dormer's interpretation of TEACH. According to Dormer, who instructs the TEACH certification program at Caloosa, it is never appropriate to bend a student's hands behind his back, push a student's head down towards a table, or bend a child's fingers into his wrist. See Pet'r Ex. 15. She also testified that a teacher should never use physical force in making a child comply with a task. She explained that if an autistic student has a temper tantrum or engages in other non-compliant behavior, the proper protocol is to call her and have the child temporarily removed from the classroom. Dormer's testimony is accepted as being the most persuasive on this issue. Therefore, while Respondent believed that her method of restraining the child was permissible and necessary under school policy, it was contrary to TEACH and constituted improper restraint of a student. After receiving Dormer's report, Markgraf treated the incident as "improperly restraining a student" and contacted the Professional Standards and Equity Office (PSEO). She also collected statements from the witnesses and Dormer. At the end of the school day, Markgraf advised Respondent that she was suspended with pay, effective immediately, while the matter was further investigated. Markgraf also reported the incident to the Department of Children and Families (DCF) as possible child abuse. Although DCF took the report and investigated the matter, no charge of child abuse was ever lodged against Respondent. Finally, D.M.'s parents were notified. Based on the above incident, and "a possible pattern of inadequate classroom supervision and academic focus" prior to the incident, a pre-determination hearing was conducted by the PSEO on January 21, 2014. Notwithstanding these charges, after the hearing, Respondent was notified that she could return to the classroom for the remaining school year. Respondent was told that she would be taking the place of a K teacher who was going on maternity leave. As discussed below, it is fair to say that had D.M.'s father not conducted a one-man vendetta against Respondent in an effort to have her terminated from Caloosa, Respondent would have continued teaching at the school, at least for the remainder of the school year. The Parents When D.M.'s father learned that Respondent's employment with Caloosa would not be terminated, he was obviously very unhappy. Even though his child was not physically injured, he reported the incident to the Cape Coral Police Department and asked that criminal charges be filed against Respondent. A police report was prepared, but no charges were ever filed by the State Attorney's Office. See Pet'r Ex. 18. He also engaged the services of an attorney and put the Board on notice that a civil lawsuit may be filed. After D.M.'s father obtained a copy of the police report, he made additional copies, stood outside the school grounds, and distributed the police report to any "parents [of students] that would take it," or anyone else who was interested, along with a cover sheet stating in pertinent part: Please read the following police report provided by the Cape Coral Police Dept. Regarding: Abuse to my Son by his Special Needs Teacher, Shawna Driggers For Further Information, please contact: [D.M.'s Father] [telephone number omitted] Although the father did not testify at the final hearing, it can be inferred that his intentions were to disseminate information about the incident to as many people as possible in an effort to bring pressure on the Board to terminate Respondent. As a result of the distribution of the hand-out and the police report, the parents of two other children in Respondent's classroom, E.P. and G.D., contacted one another and spoke with D.M.'s father. After speaking with D.M.'s father, they decided that any perceived problems experienced by their children during the fall school year should be reported to the school and blamed on Respondent. After verifying that the police report was accurate, the parents contacted the PSEO and complained that Respondent was responsible for bruises on the legs of one child (G.D.) and a scratch mark on the neck of the other (E.P.). They also attributed certain negative behavioral issues and lack of progress in the classroom to Respondent's actions or neglect. Throughout the fall that school year, the parents received daily planners from Respondent setting forth the activities and progress of their children, and Respondent was always available to speak with them by text, email, or cell phone. They also met with Respondent on several occasions. Notably, before reading the police report given to them by D.M.'s father, and conferring with one another, they had never complained about behavior issues or progress in school to either Respondent or school officials. Ironically, the year before Respondent had been given a high rating for communications with parents, and according to Markgraf, the parents "loved her." The mother of E.P., a three-year-old student with very limited communication skills, testified that her son started to become more aggressive during the first week of school, had trouble sleeping, and began screaming words that he did not hear at daycare or at home. She acknowledged, however, that his limited communication skills may have contributed to his aggressive behavior with others; that Respondent was always "brainstorming" with her throughout the fall on how to improve her son's behavior; and that Respondent was always accessible to discuss any issues about her son. She also admitted that her negative opinions regarding Respondent may have been influenced by the police report. According to E.P.'s mother, the child's behavior improved after Respondent was suspended. However, even after Respondent was replaced with a new teacher in January 2014, the mother was still dissatisfied with her child's progress, and she withdrew him from Caloosa the next month and placed him in daycare. She testified that after he enrolled in daycare, the child experienced a huge improvement in his behavior. The mother of student G.D., a three-year-old who was totally non-communicative when he began the school year, testified that before enrolling in Respondent's class, her child was not violent, did not throw tantrums, and except for being "hyper," did not act out in any way. She noted that while her son made significant progress with sign language, he did not make any progress with his speech, and he consistently came home with "clusters of bruises" on his shins, which she believes were caused by Respondent striking or kicking her son. She further testified that the child's speech improved significantly and he had "a complete turnaround" after a new teacher was assigned to his class. But almost a year later in October 2014, when she testified, she admitted he still had only a "little bit" of speech. Finally, she testified that the child had issues with a diaper rash while in Respondent's care and arrived at daycare two or three times with full diapers. Changing diapers was the responsibility of the paraprofessional, not Respondent, and these concerns were never brought to the attention of Respondent so that the problem, if generated at Caloosa, could be rectified. The allegation that Respondent was responsible for physical injuries to the two students is not credited for several reasons. First, there is no credible evidence that the scratch mark on E.P.'s neck, or the bruises on G.D.'s shins, were caused by Respondent. Moreover, Wagner, who monitored the children in October and December, never observed the alleged injuries. Third, there is no record of any medical treatment at the school clinic for either student. Fourth, except for the scratch mark, the injuries were never reported to school officials at the time they were observed by the parents. As to the allegations regarding behavioral issues or lack of progress in school, they were not corroborated by any other evidence, and it is reasonable to infer that the parents were unduly influenced by the police report and conversations with D.M.'s father. The April Board Action Although it was previously determined that the charges against Respondent did not warrant termination, the PSEO decided to reconsider the matter after the parents came forward with their complaints. A second investigation was conducted, and another pre-determination conference was held on April 22, 2014. After the conference, a recommendation was made to the Board to terminate Respondent, obviously due in large part to pressure from the parents and the notoriety now surrounding the December 12, 2013 incident. This resulted in the issuance of the Petition for Termination. Even though Respondent taught only a portion of school year 2013-2014, Markgraf was required to prepare an evaluation for the school year. Markgraf characterized it as a "very poor evaluation compared to everyone else."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order determining that Respondent is guilty of misconduct, as defined in rule 6A-5.056(2)(b), (d), and (e), terminating her suspension, and reinstating her as a special education teacher at a different school. All other charges in the Petition for Termination should be dismissed. DONE AND ENTERED this 12th day of January, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 12th day of January, 2015. COPIES FURNISHED: Dr. Nancy J. Graham, Superintendent School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 (eServed) Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
