The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 20, 2003.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Audrey Larson-Kalich (referred to herein as Ms. Kalich, as she was called by her students and fellow teachers), holds Florida Educator Certificate No. 711981, covering the areas of elementary education (grades 1-6), English to Speakers of Other Languages (ESOL), and primary education (grades K-3), which is valid through June 30, 2008. At all times relevant to this proceeding, Ms. Kalich was employed as a kindergarten teacher at Tillman Elementary School ("Tillman") by the Manatee County School District (the "District"). Ms. Kalich began her teaching career in Texas in 1981. She taught second, third, fifth, and seventh grades during a three-year period at a parochial school. After the 1983-1984 school year, she got married and took a hiatus from teaching. Beginning with the 1986-1987 school year, Ms. Kalich taught for seven years in the public school system of San Patricio County, Texas, the last four as a kindergarten teacher. Ms. Kalich left Texas after the 1992-1993 school year to join her husband in Manatee County, where he had commenced working at a position in the university system in March 1993. Ms. Kalich spent the next three years as a substitute teacher in the District, all the while seeking a full-time position. She performed well in a long-term substitute position at Braden River Middle School, teaching science to sixth and seventh graders. Ms. Kalich also substituted three different times at the Adolescent Recovery Center, a residential facility for students in rehabilitation for alcohol or drug abuse. Near the end of the 1995-1996 school year, while substituting at Tillman, Ms. Kalich learned of a full-time vacancy for a kindergarten teacher at that school. She applied for the position, though she knew that Tillman was a "very, very rough school." At the time, Tillman had a disproportionately large percentage of students with a lower socioeconomic background, learning disabilities, and difficulties complying with ordinary classroom discipline. As the 1996-1997 school year approached, the position remained unfilled. Ms. Kalich drove to Tillman to speak personally with Principal Gloria Mitchell and resolve lingering questions regarding her certification to teach kindergarten. After her certification was verified, Ms. Kalich was hired for the 1996-1997 school year. She taught at Tillman for five years. Principal Mitchell's evaluations of Ms. Kalich for the 1996-1997, 1997-1998, 1998-1999, and 1999-2000 school years were all "satisfactory." Ms. Mitchell's comments regarding Ms. Kalich's job performance stated that she "creates a positive learning environment" and is "always searching for new ways to improve student progress." Ms. Mitchell retired after the 1999-2000 school year. She was succeeded as principal by Patsy Roberson. An assessment document completed by Ms. Roberson during the 2000-2001 school year indicated that Ms. Kalich "consistently meets and/or exceeds district competency standards of performance." Paula Rosario was a kindergarten teacher at Tillman with Ms. Kalich. She and Ms. Kalich were personal friends, as well as colleagues. Ms. Rosario testified that she became increasingly alarmed at Ms. Kalich's classroom behavior during the 2000-2001 school year. As she walked down the hall, Ms. Rosario often heard Ms. Kalich yelling at her class, "Shut up. Just shut up." Ms. Rosario discussed this behavior with Ms. Kalich, urging her to lower her voice and to ask for help with her class if she needed it. Dawn Stewart, a kindergarten teacher at Tillman whose classroom shared a wall with Ms. Kalich's, testified that she often heard Ms. Kalich raising her voice, even "yelling at the top of her lungs," and telling her class to "shut up." Karen Ammons, currently the magnet coordinator at Tillman, was assigned as Ms. Kalich's "peer teacher" when Ms. Kalich was hired. A "peer teacher" advises a new teacher during her probationary period. Prior to the 2000-2001 school year, Ms. Ammons had advised Ms. Kalich not to grab students. Ms. Ammons testified that there are ways of moving a child from one place to another without grabbing the child's arms, which the child can perceive as malicious. Ms. Ammons also advised Ms. Kalich against yelling at her students. Ms. Ammons believed that yelling at children is counterproductive because children tend to respond better to a calm, quiet voice. This opinion was supported by Ms. Rosario, who advised Ms. Kalich to be "fair, firm, and friendly" when trying to establish order in her classroom. Ms. Rosario also testified that if a situation in the classroom appeared to be escalating to the point where physical restraint would be necessary, she would phone the office for assistance. Ms. Stewart testified that if a child is out of control, she moves the other children away from the flailing child and calls for assistance from an administrator. Carolyn Furnbach, another teacher at Tillman, testified that she would call for help before attempting to physically restrain a student, even though she had been trained in safe methods of restraint. Ms. Ammons testified that during the 2000-2001 school year, she saw Ms. Kalich trying to line up her class in the hallway. Ms. Kalich's class was a loud, boisterous group, and Ms. Kalich was being very loud in trying to lay down the rules. Ms. Ammons saw Ms. Kalich grab one little boy by the arm and jerk him back into line. She then bent down and started talking to him very loudly, putting her finger near his face. The rest of the class became louder, seeing that Ms. Kalich was occupied with this boy. Ms. Ammons intervened and calmed the class down. After school, Ms. Ammons discussed the matter with Ms. Kalich. Ms. Ammons told Ms. Kalich that she could not handle children in that manner. Ms. Kalich claimed not to know what Ms. Ammons was talking about. At the hearing, it was established that the practice among the Tillman kindergarten teachers was to defuse emotional disciplinary situations by sending the offending student to a different classroom for a "time out." Ms. Rosario was the "team leader" for the Tillman kindergarten teachers and offered her classroom as the "time out" room for any teacher who needed a break from a certain student. Ms. Rosario testified that, while other teachers would send their "time out" students down to Ms. Rosario's classroom, Ms. Kalich often dragged them in by the arm. Ms. Rosario told Ms. Kalich to take her hands off the students, and that it was improper to pull on students' arms. D.W. was a female student in Ms. Kalich's class during the 2000-2001 school year. She was prone to throwing tantrums. She would freeze herself to one spot or fall to the ground kicking, screaming, flailing her arms, and refusing to be moved. Children in D.W.'s vicinity during one of these tantrums were likely to get kicked or hit by D.W.'s flailing arms. Ms. Rosario witnessed Ms. Kalich carrying or pulling D.W. into Ms. Rosario's classroom for "time out." Ms. Rosario conceded that D.W. was a "challenging" child and that Ms. Kalich had great difficulty in getting D.W. to listen or follow her classroom rules. Once in Ms. Rosario's room, D.W. would calm down and comply with Ms. Rosario's instructions. Ms. Rosario never asked D.W. about events leading to her being sent to Ms. Rosario's classroom, because her immediate goal was to get D.W. under control. Ms. Rosario testified that neither D.W. nor any other student sent to her class by Ms. Kalich ever reported abuse by Ms. Kalich. Prior to May 29, 2001, D.W. and Ms. Kalich had several confrontations that led either to allegations of abuse against Ms. Kalich or discipline against D.W. On April 10, 2001, D.W. alleged that Ms. Kalich hit her on the hand with a book. Assistant Principal Deborah Houston removed D.W. from the classroom pending an investigation of the allegation. After interviewing several teachers and a student, Ms. Houston determined that the allegation could not be sustained, and she returned D.W. to Ms. Kalich's classroom. On April 23, 2001, D.W. refused to report to a "time out" classroom and, later, pushed another child in the lunch line. When Ms. Kalich came near her in the lunch line, D.W. bit Ms. Kalich. Ms. Houston conferred with D.W.'s mother and imposed a three-day in-school suspension on D.W. On May 23, 2001, D.W. called Ms. Kalich "an ugly bitch," when Ms. Kalich told her to go to another classroom for a "time out." On this occasion, Ms. Houston imposed a two-day out-of-school suspension on D.W. Ms. Kalich testified at length concerning the events of May 29, 2001. This was the next to last day of the school year, and the children were therefore in a higher state of agitation than usual. Ms. Kalich was preparing her class to go out for physical education ("PE"). She called the children by name to line up in the classroom before walking down the hallway. When D.W.'s turn came to line up, she was displeased with her position and began pushing other children to make her way to the front of the line. Ms. Kalich ordered D.W. to go to the end of the line. D.W. refused. Ms. Kalich then informed D.W. that, if she would not go to the end of the line, she would walk to PE alongside Ms. Kalich. D.W. commenced a tantrum, throwing herself on the floor. She lay on her stomach, flailing her hands, and kicking her feet. Ms. Kalich closed the classroom door to minimize the disturbance to other classes. She then got down on her knees beside D.W. and rested her hands on D.W.'s calves and feet to stop her from kicking. She kept her hands in that position for "a few minutes," until D.W. calmed down. Ms. Kalich conceded that the position of her hands might have made it look as though she were dragging D.W. by the legs, but she denied dragging the child. After D.W. quieted down, Ms. Kalich helped her to her feet. They started out the door, with Ms. Kalich holding onto one of D.W.'s hands. As they went out the door, D.W. began hitting other students with her free hand. Ms. Kalich took both of D.W.'s hands and clasped them between her own, and in that way they walked down the hallway and outside the building. Another of Ms. Kalich's students, J.Q., was carrying a chair outside because she was to be disciplined with a "time out," while the rest of the class took PE. As Ms. Kalich and D.W. were rounding a corner outside the building, J.Q. dropped the chair, creating a loud crashing sound. Ms. Kalich testified that just as she was distracted by the crash, D.W. jerked away from her grip and hit her head on the wall. D.W. began to cry and ran away to the corner of a fenced area outside the school. Ms. Kalich joined Ms. Stewart in checking to see if J.Q. was hurt. After she was assured that J.Q. was not hurt, Ms. Kalich told the child, "That's what you get for acting silly." Ms. Kalich turned her attention back to D.W., ordering her back into the line. D.W. refused to come. Ms. Kalich testified that she told D.W., "Then I will go to the office and tell them you're not coming back." The PE coach, Michael VanSerke, came out and helped Ms. Kalich move D.W. from the corner to the PE area. Coach VanSerke told Ms. Kalich that he would have two of his first grade "helpers" take D.W. to a classroom for "time out" during the PE class. Ms. Kalich was skeptical that two first grade boys could handle D.W. She saw D.W. approach one of the boys and try to kick him. Ms. Kalich interceded. She carried D.W. under the arms and, with the help of the two first grade helpers, got D.W. to the "time out" classroom. Ms. Stewart's version of the events of May 29, 2001, was very different. Ms. Stewart walked with Ms. Kalich because some of the children in her class went to PE at the same time as Ms. Kalich's class. Ms. Stewart testified that she looked in the doorway of Ms. Kalich's class and saw D.W. sitting on the floor, flailing her arms and crying, refusing to get up. Ms. Kalich grabbed D.W. by the ankles and dragged her out of the room. Ms. Stewart asked Ms. Kalich if she needed help, but Ms. Kalich said she did not. Ms. Stewart recalled that J.Q. dropped the chair on her foot and was crying. Ms. Kalich still had D.W. by the arm, and D.W. was still flailing. Ms. Kalich jerked D.W.'s arm, presumably to make her stop flailing, and the child's head hit the wall and she began to cry. Ms. Stewart did not believe that Ms. Kalich deliberately pushed D.W. into the wall. Ms. Stewart recalled Ms. Kalich telling D.W. "something like, 'You never need to come to school again.'" Carolyn Furnbach, another teacher at Tillman, witnessed the portion of the incident that occurred outside. She recalled that there was "a lot of commotion" and that Ms. Kalich "had the child by the arm and was pulling her quite forcibly." Ms. Furnbach was concerned for D.W.'s safety. D.W. testified at the final hearing. She recalled being pushed into the wall by Ms. Kalich but could offer no further details of the incident. Ms. Stewart's testimony is credited as to Ms. Kalich dragging D.W. out of the classroom. Ms. Kalich's testimony that she was merely resting her hands on D.W.'s calves to calm her is not credible for several reasons. First, given the general descriptions of D.W.'s tantrums involving flailing arms and wildly kicking legs, it is not credible that Ms. Kalich's resting her hands on the child's calves would have the effect claimed by Ms. Kalich. Second, Ms. Kalich's placing her hands on the child's legs would not stop D.W.'s flailing arms. Third, it is not credible that Ms. Stewart would mistake hands resting on the child's calves for the act of dragging the child out of the classroom. Fourth, it is not credible that the rest of the class would stand by quietly for the "few minutes" Ms. Kalich claimed it took her to calm D.W. Ms. Stewart's testimony is credited as to Ms. Kalich's causing D.W.'s head to hit the wall. Ms. Stewart's testimony was bolstered by that of Ms. Furnbach, who also saw Ms. Kalich pulling on D.W.'s arm. Ms. Kalich's testimony is credited as to her statement to D.W. after the incident. Ms. Stewart's recollection of that statement was not precise and could have been consonant with Ms. Kalich's version of her statement. It is found that Ms. Kalich was trying to obtain D.W.'s cooperation by threatening to tell the office that D.W. was not coming back to school, not telling the child not to come back to school. Ms. Rosario did not witness the May 29 incident, but afterwards Ms. Stewart and Ms. Furnbach came to her, as their kindergarten team leader, with their concerns about Ms. Kalich's handling of D.W. Ms. Rosario advised them to go to Principal Roberson with their concerns. Ms. Roberson asked all three of the teachers to submit written statements outlining their observations of, and concerns about, Ms. Kalich's behavior in the classroom. Ms. Rosario opined that Ms. Kalich is a "great person" and a caring, hard-working teacher, but that she was teaching in the wrong school, because Tillman students are "hard on you." Ms. Rosario noted that there are many special needs children at Tillman, including some from bad homes and some who were "drug babies" or "fetal alcohol children." Because they have just started school, many of these children have not yet been identified for special services. Ms. Rosario stated that she would not send her own children to Tillman. She believed that Ms. Kalich tried everything she knew to deal with her students, but that nothing in Ms. Kalich's education or background prepared her for the type of students she encountered at Tillman. Ms. Furnbach testified that Tillman is a school with a "tough group" of students, many of whom have behavioral problems. She believed that Ms. Kalich always had the right intentions, was a good instructor, and cared about her students. Ms. Furnbach believed that Ms. Kalich should receive some help in classroom management and dealing with problem students before returning to Tillman or that she be assigned to work with less challenging students. Lisa Revell, another kindergarten teacher at Tillman, worried that Ms. Kalich was "too nice" to be working in the Tillman environment. Ms. Mitchell, the former principal, commented that certain children were able to take advantage of Ms. Kalich. In summary, the Department demonstrated by clear and convincing evidence that Ms. Kalich repeatedly yelled at the children in her kindergarten class, telling them to "shut up"; and that on May 29, 2001, Ms. Kalich dragged D.W. from the classroom by her ankles, pulled her by the arm, and jerked her arm in a manner that caused D.W.'s head to hit an outside wall. The evidence did not establish that Ms. Kalich told D.W., "You don't need to ever, ever come back to school again," or words to that effect. The evidence did not establish that any of Ms. Kalich's actions were motivated by malice or an intent to abuse the children. To the contrary, even those teachers who testified against Ms. Kalich spoke highly of her dedication and desire to provide the best possible educational environment for her students. The evidence established that Ms. Kalich was ill- equipped to deal with the unique needs of the student population at Tillman and that, in her desperation to maintain order, she would resort to yelling and rough handling of young children. Ms. Kalich submitted several letters attesting to her good character and her quality as a teacher. These have been considered, but are beside the point. Ms. Kalich's good character is not at issue. Specific acts were alleged. Eyewitnesses testified that they observed these acts, even as they continued to believe that Ms. Kalich was a person of good character who sincerely cared about the children in her charge. Grabbing students, jerking them by the arms, dragging them by the ankles, yelling at them, all are improper means of maintaining order in the classroom. Ms. Kalich's inability to cope with the behavior of the children in her classroom evokes some sympathy, but it must be noted that the other kindergarten teachers at Tillman managed to keep order in their classrooms without resort to such abusive methods.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in her certification file and placing her on a two-year period of probation, subject to such conditions as the Commission may specify, including classroom supervision by another certified educator and completion of appropriate college courses in classroom management. DONE AND ENTERED this 9th day of January, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2004.
Findings Of Fact Respondent currently holds Florida teaching certificate number 576645, which covers the areas of elementary education and mathematics. Respondent's certificate is valid through June 30, 1992. During the 1990-91 school year, Respondent was employed as a third grade teacher at Markham Elementary School in the Broward County School District. 1/ On an undetermined date during the 1990-91 school year, Respondent hit, M.R., a female student, with a wooden ruler that was twelve inches long and one inch wide. Respondent's action was in response to M.R.'s behavior of talking in class without permission. M.R. was hit on the palm of her hand with the ruler in front of the class. M.R. was embarrassed by the incident, but she did not cry. On another occasion, M.R. was talking in class. There was a dispute in the testimony as to whether M.R. was using profanity. Respondent testified that M.R. was using profanity, while M.R. denied using profanity. Respondent took M.R. to the bathroom at the rear of the classroom, told M.R. to place soap on her hands, and made M.R. wash her mouth out with soap. 2/ During the 1990-91 school year, Respondent hit K.S., a female student, on the palm of the hand with the twelve inch wooden ruler. This discipline occurred at the door to the bathroom at the rear of Respondent's classroom. K.S. became upset and began to cry. Another student saw K.S. crying. On one occasion, while talking to K.S. in the bathroom, Respondent told K.S. to pretend to cry to make the other students believe that she had been punished. Respondent had not administer corporal punishment to K.S. on that occasion, but Respondent wanted the other students to believe that they would be punished if Respondent took them to the bathroom. The Respondent hit K.C., a male student, on the palm of the hand with a wooden ruler, and on the buttocks with a small board. On one occasion the Respondent took K.C. into the bathroom and hit him with a ruler. The Respondent threatened on other occasions to hit K.C. with a ruler. The Respondent threatened to hit L.S., a female student with a ruler. L.S. witnessed the Respondent hitting other students on the hand with a ruler. The Respondent hit V.D., a female student, on the palm of the hand with a ruler. V.D. cried after being hit with the ruler. The Respondent hit K.C., a female student, on the palm of the hand and buttocks with a ruler. The Respondent hit K.C. in the bathroom and in the classroom. The Respondent hit S.T. 3/, a female student, on the palm of the hand with a wooden ruler, causing S.T. to cry. The Respondent hit or tapped T.B., a male student, on the hand with a ruler. The Respondent's conduct in hitting the students with a ruler was not done in self-defense, but as a disciplinary measure that was intended to both punish and intimidate the students. At hearing, the Respondent offered a composite exhibit of permission forms, purporting to demonstrate parental permission to use corporal punishment against K.S., T.B., K.C. (female student) and D.R. (a student who did not testify). Respondent did not offer any permission forms from the parents of M.R., S.T., K.C. (male student), or V.D., although the evidence established that Respondent struck these students with a ruler. Regardless of parental permission, the discipline administered by Respondent violated district policy, which forbids corporal punishment of any kind. After an investigation into allegations that the Respondent had struck students, students were called to the school office to be interviewed. The Respondent discussed the pending investigation with her class. Several students recalled that on the day that they were to be interviewed she told them she might go to jail if students told the investigators that she had hit them. None of the students testified that Respondent told them, as a group, to lie to the investigators. In fact each of the students testified that the Respondent told the class to tell the truth. There was a conflict in the evidence as to whether Respondent told S.T. and V.D. individually not to reveal that she had hit them, or to say that she had hit them fewer times than she actually had. This conflict is resolved by finding that Respondent's denial that she told either S.T. or V.D. to lie is more credible than the testimony to the contrary from S.T. and V.D. Therefore, it is found that Petitioner failed to establish that Respondent told her students to lie about her discipline practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of facts and conclusions of law contained herein, which provides that a letter of reprimand be issued Respondent by the Education Practices Commission, and which places Respondent's certification on probation for a period of two years. It is further recommended that the terms and conditions of probation be identical to those recommended by Petitioner in its post-hearing submittal. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of May, 1992. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1992.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 1st day of March, 2011.
Findings Of Fact The Respondent Philip Arthur James holds Florida Teacher's Certificate number 357596, rank 3, covering the areas of mental retardation and emotionally disturbed children. During the 1982-1983 school year, the Respondent James was employed as a public school teacher at the Paul B. Stephens Exceptional Center in the Pinellas County School District. During the 1982-1983 school year, the Respondent James was assigned to teach a class of approximately six profoundly mentally handicapped students. None of the students in the Respondent's class could talk, walk, read or write. Some were incontinent and wore diapers. Howie Flood, one of the profoundly mentally retarded students in the Respondent's class, was 17 years old. Because of Howie's severe condition, it was almost impossible to elicit any type of response from him. The Respondent, however, attempted to force Howie to respond by pulling or yanking his hair on a number of occasions. The Respondent did not pull Howie's hair to punish or hurt him, but rather to attempt to get some type of positive response from the student. This type of behavior management was never approved prior to administration, by Ms. Torres, the school's behavior specialist, as required by written school policy. Della McYenna, a profoundly mentally retarded student in the Respondent's class was 17 years of age. This student was extremely sensitive and did not like being touched. On one occasion, while the Respondent was attempting to change Della's diaper on a small changing table, he placed tape on her leg. When the tape was yanked off Della's leg, the student flinched. The Respondent placed the tape on Della's leg because the student was squirming about which made it difficult to control the situation. Although the Respondent could have placed the tape on the table, out of convenience he elected to place the tape on Della's leg knowing that this student was extremely touch sensitive. Andrea Miller, a profoundly mentally retarded student in Respondent's class, had a habit of poking a finger into the corner of her eye, causing the eye to bulge out of its socket. If left untreated, this situation could ultimately result in the loss of the eye. In attempting to stop this behavior, the Respondent slapped Andrea's arm. The Respondent employed this technique to cause Andrea to stop attempting to poke out her eye. Prior to administration, this behavior management technique was never approved by Ms. Torres, the school's behavior specialist, as required by written school policy. Pamela Baker, a 17 year old profoundly mentally retarded student in Respondent's class, was confined to a wheelchair. While changing Pamela's diaper, the Respondent lightly tapped Pamela in the area of her mouth. This tap, however, was not sufficient to cause any bleeding. Apparently, Pamela caused the injury by hitting herself in the face when struggling with the Respondent. Although the Respondent is charged with striking Pamela on the foot with a ruler for pulling toys off a shelf, insufficient evidence was produced to demonstrate that this event occurred. After the Respondent's conduct was reported to Principal Diem in October, 1982, he was suspended from his position of employment and later dismissed by the Pinellas County School Board. Dr. M. Juhan Mixon, Director of Personnel Services, Pinellas County School Board testified that in his opinion, Respondent's effectiveness as an employee of the school board was seriously reduced based on the school board's finding that he had committed the acts charged and should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered suspending the teaching certificate of the Respondent Philip Arthur James for one year and placing him on probation for the following two years, during which period the Respondent be required to successfully complete additional appropriate college class work in the area of mentally and emotionally behavior management of handicapped students as prescribed by the Education Practices Commission. DONE and ENTERED this 27th day of December, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 23rd day of December, 1983.
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY 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 22d day of November, 1994.
The Issue Whether Respondent's continuing contract of employment with the Petitioner should be terminated for incompetency or for gross insubordination and willful neglect of duty.
Findings Of Fact At all times pertinent to this proceeding, the Respondent has been employed by Petitioner as an elementary school classroom teacher pursuant to a continuing contract of employment. Respondent is 57 years of age and has been a classroom teacher for a total of 29 years. She began working for Petitioner during the 1975-76 school year and has worked under a continuing contract since August 1980. Prior to that time, she was a classroom teacher in Winter Park, Florida. In 1980, Respondent's principal observed that Respondent was habitually tardy at the work site and had difficulty accepting criticism. During the 1983-84 school year, Respondent's principal found Respondent to be deficient in classroom management, student-teacher relationships, instructional techniques, and supportive characteristics. Efforts to have Respondent correct these deficiencies were unsuccessful. A prescription of assigned activities was developed in an effort to help Respondent to correct these deficiencies. Respondent was required to attend a teacher education course in classroom management to obtain ideas on how to better manage her class. Respondent failed to complete that course. She also failed to follow administrative directives that she arrive at school on time and that she maintain anecdotal records for students. Respondent's poor teaching performance and insubordinate behavior in failing to follow directives led Respondent's principal to recommend that her employment be terminated. No action was taken on that recommendation. There was no evidence as to Respondent's job performance between the 1983-84 school year and the 1991-92 school year. From 1991 through 1993, Respondent was assigned to teach a second grade class at Palm Springs North Elementary (Palm Springs). Dawn Hurns was the Respondent's principal at Palm Springs and Raquel Montoya was her assistant principal. Respondent frequently took her class to lunch earlier than scheduled and picked her class up from lunch after the period had expired. Ms. Montoya directed Respondent to adhere to her lunch schedule. Respondent failed to comply with that directive. On February 6, 1992, Ms. Montoya advised Respondent that her continued failure to adhere to administrative directives would result in formal disciplinary action being taken against her. During the 1992-93 school year, Ms. Hurns observed Respondent's performance and noted deficiencies pertaining to record keeping, attendance, tardiness, and organizational skills. After formally observing Respondent's deficient classroom performance, Ms. Hurns met with Respondent and gave her an opportunity to work on her deficiencies. In subsequent observations, both Ms. Hurns and Ms. Montoya found Respondent's performance to be deficient. In an attempt to remedy her unacceptable performance in the classroom, Respondent was provided prescriptive activities designed to improve her classroom management. On November 2, 1992, Ms. Hurns issued Respondent a memorandum addressing her chronic tardiness to school and her failure to notify the school of her expected tardiness in violation of her professional responsibilities. As a result of frequent tardiness, Respondent's students were often left unattended on the basketball court where they assembled before school began. Ms. Hurns often had to escort Respondent's students to their classroom in the absence of the Respondent. Ms. Hurns held a "Conference for the Record" (CFR) with Respondent on December 10, 1992, to address her unacceptable performance and to notify her that continued unacceptable performance would yield an unacceptable annual evaluation. Ms. Hurns also offered Respondent assistance in correcting her deficiencies, including a referral to the Petitioner's Employee Assistance Program (EAP). Although two meetings were scheduled for Respondent at the EAP, Respondent did not attend either meeting and did not take advantage of the EAP. By December 21, 1992, Respondent had received two unacceptable observations, which yielded an unacceptable summative assessment as established by Petitioner's Teacher Assessment and Development System (TADS). 2/ On January 13, 1993, Ms. Hurns completed a TADS summative assessment form that found Respondent's classroom performance unacceptable in three out of seven categories. The first category was "Knowledge of Subject Matter" with the observed deficiency being ineffective presentation of the subject matter. The second category was "Teacher-Student Relationships" with the observed deficiency being the failure to attempt to systematically involve all students in class activities. The third category was "Assessment Techniques" with the observed deficiency being the failure to properly record grades for students. Ms. Hurns observed Respondent's grade books and discovered that, except for one or two grades in reading, there were no grades or other assessment of the students' work over a period of nine weeks. Respondent was directed to follow the prescribed grading policy, which required a teacher to have at lease one grade per week for each subject area. It was impossible to adequately assess students' work with such few grades or with no grades at all. In addition to the foregoing, Respondent continued to be absent or tardy without excuse. On January 14, 1993, Ms. Hurns held a CFR with Respondent to discuss Respondent's lack of compliance with her professional responsibilities, her irregular attendance, and her frequent tardiness. At the CFR, Respondent was directed to notify an administrator of her intent to be absent or tardy to school, to provide lesson plans for her substitutes, and to provide grades for her students. By memorandum dated February 17, 1993, after a prolonged absence by Respondent, Ms. Hurns advised Respondent of her continuing failure to complete her prescribed activities, and her continuing lack of attendance. Ms. Hurns directed Respondent to either take a leave of absence and notify the school when she expected to return or to resign. On March 8, 1993, Ms. Montoya notified Respondent of her continued disregard for administrative directives. After a parent requested to see proof of her daughter's lack of academic progress in Respondent's classroom and complained of Respondent's refusal to assist the parent in improving her child's performance, Respondent was directed by Ms. Montoya to provide the parent with a daily progress report on the student's performance. Respondent failed to comply with this directive. On March 11, 1993, Ms. Hurns formally observed Respondent's classroom performance and noted that Respondent had not complied with School Board rules, labor contract provisions, and school site rules. Respondent did not maintain accurate student records pertaining to grades for her students, she had not completed her prescriptive activities, and she continued to be absent on a frequent basis. Ms. Hurns held another CFR with Respondent on March 11, 1993, and told her that her continuing failure to comply with the administrative directives given January 14, 1993, constituted gross insubordination. As a result of Respondent having obtained two unacceptable summative assessments, Ms. Hurns requested that Petitioner send to Palm Springs a trained observer to conduct an observation of the Respondent's performance. In response to that request, Norma Bossard, a Language Arts supervisor who had been trained as a TADS observer, was sent by Petitioner to observe the Respondent. Ms. Hurns was present when Ms. Bossard conducted her formal observation of Respondent's classroom performance. Both Ms. Hurns and Ms. Bossard found Respondent's performance to be unacceptable in the following categories: "Preparation and Planning," "Knowledge of the Subject Matter," "Techniques of Instruction," and "Assessment Techniques". During the external observation, Respondent gave a lesson on spelling that lasted approximately an hour longer than it should have. Respondent also failed to give her students a pretest to determine whether the spelling lesson was even necessary. The external review by Ms. Bossard was consistent with the observations made by Ms. Hurns as to deficiencies in the Respondent's job performance. Ms. Bossard concluded that Respondent was wasting the time of her students. Ms. Bossard observed that Respondent appeared to be very wide-eyed and disoriented. On April 19, 1993, a CFR was held with Respondent at the Petitioner's Office of Professional Standards to address her unacceptable performance in the classroom, her insubordination in the form of her continued noncompliance with directives relating to her assigned prescriptive activities, and her excessive absences and chronic tardiness. At this CFR, Respondent was again directed to comply with previous administrative directives, and was informed that such compliance had become a condition of her continued employment. By the end of the 1992-93 school year, Respondent had been absent at least 59 days and had been tardy on at least 31 occasions. Despite being specifically told to do so, Respondent frequently failed to call the school and inform school administrators that she would either be absent or tardy. Although Respondent was chronically absent from the work site, she failed to provide lesson plans for substitute teachers. Respondent's persistent absenteeism, failure to provide lesson plans, and lack of assessment of students' work had a detrimental impact on the students assigned to her classroom. As a result of Respondent's continued unacceptable classroom performance, her failure to remediate her deficiencies and her failure to comply with administrative directives, Respondent received an unacceptable annual evaluation by Ms. Hurns. Ms. Hurns submitted a recommendation that Respondent's employment with the Petitioner be terminated. Ms. Hurns had intended to hold a CFR with Respondent to address her unacceptable annual evaluation, but Respondent was absent from school for an extended period of time and the CFR was not held. On July 7, 1993, Petitioner suspended Respondent's employment on the grounds of gross insubordination and incompetency and instituted these proceedings to terminate her continuing contract. Petitioner established that there was a continuing refusal to comply with administrative directives by Respondent and that she failed to abide by procedures for maintaining adequate grading of the work of her students, did not provide appropriate lesson plans, and failed to take advantage of the prescriptive activities assigned for her performance improvement. Respondent's considerable and excessive absences from the classroom and her failure to provide lesson plans and properly grade students' work resulted in a failure to communicate with and relate to her students to such an extent that Respondent failed to provide her students with a minimum educational experience. Despite the fact that Respondent was given ample opportunities to correct her behavior, she constantly and intentionally refused to obey direct orders to contact administrators when she was going to be absent or tardy, to provide lesson plans for her substitutes, and to maintain grades for her students. Ms. Hurns and the other administrators involved in evaluating Respondent's performance, took reasonable measures to communicate directly with Respondent about her classroom deficiencies and her attendance. At the formal hearing, Respondent testified that she became confused and disoriented and conceded that she had difficulty working. Respondent introduced evidence in an attempt to establish that her poor job performance was caused by medical problems. Under the Respondent's health care system, Respondent was required to obtain a referral for health care services from her primary physician who was, at the times pertinent hereto, Dr. Olive Chung-James. Dr. Chung-James saw Respondent several times starting in February 1993, for various symptoms and illnesses. In May 1993, Dr. Chung-James, who had been treating Respondent for respiratory problems and vomiting, recommended that Respondent seek psychological counselling because she thought the Respondent was stressed out. After the suspension of her employment in July 1993, Respondent met by coincidence a certified psychologist named Lani Kaskel. Respondent called Dr. Kaskel several times before she was able to arrange an appointment. Because Respondent had not been referred to Dr. Kaskel by Dr. Chung-James, the Respondent's health insurance did not pay for her visit to Dr. Kaskel. When Dr. Kaskel examined the Respondent, the Respondent was in a weak condition, somewhat disoriented, and clearly depressed. Respondent was seeking help and appeared overwhelmed. Dr. Kaskel suggested to Respondent that she might have an organic feature to the depression she was experiencing and referred her to Luis Escovar, a clinical psychologist who had been approved by Respondent's insurance plan. Respondent was referred to Dr. Kenneth Fischer, who is board certified in neurology by the American Board of Psychiatry and Neurology. Dr. Fischer's records reflects that Respondent presented herself with a history of personality disorder and headaches. Dr. Fischer conducted a series of tests to determine if there was a physical cause for the headaches she was experiencing, including a Magnetic Resonance Imaging (MRI) test, which was abnormal. The MRI revealed an area of the brain with decreased density which was interpreted by the consulting radiologist to be a low-grade tumor. Following his examination of the Respondent, Dr. Fischer was of the opinion that Respondent had either an ischemic process stroke or a brain tumor. His tests were inconclusive, and he could not testify that Respondent's poor performance and her failure to follow directives were attributable to organic causes. Respondent testified that during the 1992-93 school year she got behind in her work and she had trouble finishing her work and the prescriptions mandated by the school administrators. She testified that she did not willfully fail to meet the performance expectations, but that she could not do so because she was ill. Dr. Luis Escovar, a psychologist who treated the Respondent and who performed a series of psychological testing, expressed the opinion that on February 14, 1994, the Respondent was physically and mentally able to return to her employment as a classroom teacher. Respondent asserts that Respondent's poor classroom performance was due to an illness and that she should have been placed on sick leave. Respondent's assertion is rejected for two reasons. First, the medical testimony is speculative and does not establish that Respondent's poor job performance and failure to follow directives were caused by a stroke or by a brain tumor. Second, while Respondent testified that she sought sick leave, she offered no evidence as to whom this request was made, the date the request was made, the duration of the leave requested, the manner in which the leave was requested, or any other circumstances of the request. In light of the many offers of assistance that were made to the Respondent, which she repeatedly declined, it is found that Respondent did not establish that she made a proper request for sick leave that was refused by the administrators of Palm Springs. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order which adopts the findings of fact contained herein and which terminates the Respondent's continuing contract of employment. DONE AND ENTERED this 28th day of July 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July 1994.
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent's professional service contract should be re-newed.
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Helen F. Ruby (Respondent) was employed with the Petitioner as a teacher pursuant to a professional service contract (PSC). Respondent has been employed with Petitioner as a PSC teacher for approximately 15 years. Respondent is a member of the United Teachers of Dade (UTD). As a member of UTD, Respondent is bound by all the provisions of the labor contract between Petitioner and UTD. The UTD contract requires the utilization of the Teacher Assessment and Development System (TADS) to evaluate the performance of teachers. All teachers employed by the Petitioner are evaluated pursuant to the TADS, which is an objective instrument used to observe minimal teaching behaviors. The TADS instrument evaluates teacher classroom performance in six categories which are preparation and planning; knowledge of subject matter; classroom management; techniques of instruction; teacher-student relationships; and assessment techniques. A seventh category, referred to as professional responsibility, reflects the duties and responsibilities of a teacher in complying with the Petitioner's rules, contractual provisions, statutory regulations, site directives, and all policies and procedures relating to record-keeping and attendance. This system of evaluation records deficiencies observed during the observation period and provides the prescription for performance improvement. At all times material hereto, the document used to evaluate Respondent's performance was the TADS document, more specifically, TADS, Classroom Assessment Instrument (CAI). The TADS CAI contained the six categories, not the seventh, in evaluating Respondent's performance. 1995-96 School Year During the 1995-96 school year, Respondent was assigned to John F. Kennedy Middle School (JFK) to teach Language Arts at the seventh grade level. On November 13, 1995, Respondent was formally observed by JFK's Assistant Principal. Respondent was found unacceptable in classroom management. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management. The prescription, which includes the prescriptive activities and a date certain for completion or submission of the prescriptive activities, is recorded on the TADS Record of Observed Deficiencies/Prescription for Performance Improvement (ROD). After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities on the ROD. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document; but Respondent did not provide a response on the TADS document to the noted deficiencies. On December 15, 1995, a mid-year Conference-for-the- Record (CFR) was held. Present at the mid-year CFR were the Principal, Assistant Principal, Respondent, and a UTD representative. During the mid-year CFR, Respondent's prescription status was addressed, due to her unsatisfactory performance in classroom management, and her future employment status with Petitioner. Respondent was provided an opportunity to address the deficiencies and concerns noted in the mid-year CFR; however, Respondent did not provide a response. A written summary of the mid-year CFR, dated January 8, 1996, was prepared by the Principal. Respondent received a copy of the summary. On March 11, 1996, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management, which were recorded on the ROD. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. At times during the post-observation conference, Respondent was argumentative and resistant. On March 21, 1996, a CFR was held. Present at the CFR were the Principal, an Assistant Principal, Respondent, and two UTD representatives. During the CFR, Respondent's unacceptable performance in the classroom, resulting from the unacceptable observations of November 13, 1995, and March 11, 1996, was discussed. Respondent was notified that a second unacceptable consecutive summative would result in an external review and that a recommendation to not renew her professional service contract may be made. A written summary of the CFR, dated March 22, 1996, was prepared by the Principal. A copy of the CFR summary was provided to Respondent. The evidence is insufficient to conclude that a summative observation form was provided to Respondent or Respondent’s UTD representatives. By letter dated March 22, 1996, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that she was being charged with unsatisfactory performance in classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Further, Respondent was notified that, if her performance deficiencies were not corrected during the 1996-97 school year, her employment with the Petitioner may be terminated; and that the assessment of her performance would continue throughout the remainder of the school year. By letter dated March 28, 1996, the Petitioner’s Associate Superintendent of Schools notified Respondent, among other things, that she had not been recommended for renewal of her PSC and that the Petitioner had acted on the recommendation to not renew her PSC. Further, Respondent was notified, among other things, that her performance would continue to be assessed throughout the 1995-96 and 1996-97 contract school years; and that, unless her performance deficiencies were remediated, her employment with the Petitioner would terminate at the close of the 1996-97 contract school year, with her last day of employment being June 14, 1997. On April 29, 1996, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in classroom management and techniques of instruction. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. As a result of Respondent receiving three unacceptable observations during the 1995-96 school year, JFK’s Principal requested an external review of Respondent’s classroom performance. An external review is a formal observation which requires an on-site administrator and an off-site region or district office administrator to be observers, a two-on-one observation. The observers are both in the teacher’s classroom at the same time; they observe the same lesson plan; and they rate the TADS CAI items independently, using their own judgment. After the two observers independently assess the teacher’s classroom performance, they meet and collaboratively prepare a prescriptive record of observed deficiencies which includes their observations substantiating the deficiencies. The prescription is recorded on the ROD. Written notice must be provided to the teacher that an external review will be conducted. The CFR summary dated March 22, 1996, provided Respondent with notice that an external review would be conducted if a condition precedent occurred, which was the occurrence of a second unacceptable consecutive summative. There is no dispute that the formal observations conducted on November 13, 1995, and March 11, 1996, comprise the first two consecutive TADS CAI observations; and that the formal observations conducted on March 11, 1996, and April 29, 1996, comprise the second two consecutive TADS CAI observations. There is disagreement as to whether the observations comprise the first unacceptable consecutive summative and the second unacceptable consecutive summative, respectively; however, a finding is so made and, therefore, the condition precedent was satisfied. Moreover, a finding is made that the mid-year CFR summary dated March 22, 1996, provided Respondent notice of the external review. On May 30, 1996, an external review of Respondent’s classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Each observer rated Respondent independently on the TADS CAI. The two observers did not discuss their ratings of Respondent prior to completing the TADS CAI rating. After performing their independent ratings, the two observers discussed Respondent’s performance. Neither observer changed their ratings during or after the discussion. As a result of Respondent receiving an unacceptable external review, the two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. After an external review, the on-site observer has the responsibility of conducting the post-observation conference and preparing and issuing the prescription. In accordance therewith, the Assistant Principal held a post-observation conference with Respondent and discussed the noted-deficiencies and the prescriptive activities. On June 14, 1996, Respondent was placed on prescription in the category of professional responsibility, the seventh category of TADS, by the Principal. Respondent was given prescriptive activities to assist her to overcome her deficiencies in professional responsibility, which were recorded on the ROD. The Principal held a conference with Respondent to discuss the prescription. Respondent’s annual evaluation was conducted on June 14, 1996. During the 1995-96 school year, the Principal and her staff provided Respondent with assistance to overcome the noted deficiencies. However, Respondent’s classroom performance remained unacceptable. Respondent’s overall performance was found unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, assessment techniques, and professional responsibility. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1995-96 school year. 1996-97 School Year JFK had a new principal for the 1996-97 school year. The Principal was informed as to Respondent’s prescription status. The Principal met with Respondent, reviewed the prescription with her, and offered to assist Respondent with the prescriptive activities. Respondent indicated to the Principal that she needed no assistance. By memorandum dated September 24, 1996, the Principal notified Respondent that, pursuant to the prescription, Respondent had failed to submit the prescriptive activities which were due on September 20, 1996, and that, therefore, she was in noncompliance with the prescription. Respondent was also notified that, if she failed to submit the prescriptive activities by September 25, 1996, the professional responsibility (category seven) prescription would be extended for noncompliance. Finally, the Principal provided Respondent duplicates of the June 14, 1996, prescription and TADS documents. Respondent failed to complete the prescriptive activities by September 25, 1996. On October 3, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the CFR, Respondent’s prescriptive status, noncompliance with the prescription and administrative directives, and future employment status with Petitioner were discussed. The June 14, 1996, prescription was extended to November 4, 1996, and Respondent was advised that her failure to complete the prescriptive activities by the prescribed deadline would be considered insubordination. A written summary of the CFR was prepared by the Principal. Respondent was provided a copy of the summary. On October 8, 1996, approximately one week after the CFR, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in techniques of instruction and assessment techniques, which were recorded on the ROD. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. On October 14, 1996, a memorandum from the Principal was submitted to Respondent which notified Respondent that she had failed to submit all prescriptive activities which were due on October 4, 1996, in accordance with the prescription dated June 6, 1996. Respondent was also notified that the required prescriptive activities must be submitted by October 15, 1996; and that, if they were not, the prescription of June 6, 1996, would be extended due to noncompliance. On December 16, 1996, a mid-year CFR was held. Present at the mid-year CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the mid-year CFR, Respondent’s noncompliance with school site directives, noncompliance with Petitioner’s rules, prescriptive status, and future employment status with Petitioner were discussed. Additionally, the assistance provided Respondent to assist her in improving her classroom performance was reviewed. During the mid-year CFR, Respondent was advised that she was in her second year of unacceptable performance status and that she had failed to remediate her noted deficiencies. She was also advised that, if she failed to remediate the noted- deficiencies by the end of the 1996-97 school year, a recommendation would be made for the non-renewal of her PSC, which would be reported to the Florida Department of Education. Additionally, during the mid-year CFR, Respondent was advised that to remediate the noted deficiencies she must receive two consecutive acceptable summative decisions, which would require three formal observations. Respondent was further advised that, if she received two consecutive unacceptable summatives or four formal observations with no pattern of two consecutive acceptable or unacceptable summatives, an external review would be conducted. A written summary of the mid-year CFR was prepared by the Principal. Respondent received a copy of the summary. On February 6, 1997, Respondent was formally observed by the Assistant Principal. Respondent was found unacceptable in classroom management and techniques of instruction. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. Respondent was required to complete the prescriptive activities by February 26, 1997. After the formal observation, the Assistant Principal conducted a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. Respondent failed to complete the prescriptive activities by February 26, 1997. By memorandum dated March 4, 1997, the Assistant Principal notified Respondent, among other things, that she was in noncompliance with the prescription because of her failure to complete the prescriptive activities by February 26, 1997; and that she had until March 5, 1997, to submit the prescriptive activities. On February 24, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and a UTD steward. During the CFR, among other things, Respondent’s prescriptive status, unacceptable classroom performance, and noncompliance with school site directives were discussed. Respondent was advised that she had not remediated her deficiencies and was notified that, therefore, an external review was requested. Respondent was also notified that, if she did not remediate the noted-deficiencies, a recommendation would be made to terminate her employment with the Petitioner and not renew her PSC. A written request for an external review was made by the Principal. Respondent received a copy of the request. A written summary of the CFR was prepared by the Principal. A copy of the CFR summary was provided to Respondent, who was informed that she could provide a written response to the summary. Although not required for PSC teachers, an interim evaluation is used to inform PSC teachers on prescription of the latest summative decision. Also, the interim evaluation notifies the PSC teacher that he/she may be in jeopardy of losing their PSC at the end of the school year. On February 27, 1997, Respondent received an interim evaluation. She was found to be unacceptable in classroom management, techniques of instruction, and assessment techniques. The overall unacceptable interim evaluation was based on the compilation of the unacceptable formal observations of October 8, 1996, and February 6, 1997. On March 7, 1977, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in preparation and planning, techniques of instruction, and assessment techniques. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in preparation and planning, techniques of instruction, and assessment techniques, which were recorded on the ROD. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. The Assistant Principal offered to provide any assistance that Respondent requested to assist her to improve her performance. The date for completion of the prescriptive activities was March 27, 1997. Respondent failed to timely complete the prescription, submitting the prescriptive activities on April 9, 1997. By letter dated March 10, 1997, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that the deficiencies noted in Respondent’s performance in the 1995-96 school year had not been corrected, that he would be recommending to the Petitioner that Respondent’s PSC not be re-issued, and that the Petitioner would act on his recommendation on March 19, 1997. Further, Respondent was notified that her performance would continue to be assessed for the remainder of her contract. On March 19, 1997, the Petitioner acted on the Superintendent’s recommendation. The Petitioner decided not to renew Respondent’s PSC and not to reappoint Respondent to a teaching position. On April 16, 1997, an external review of Respondent’s classroom performance was conducted by JFK's Principal (the on- site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Each observer rated Respondent independently on the TADS CAI. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD. After the external review, the Principal held a post- observation conference with Respondent. The Principal discussed the noted deficiencies and the prescriptive activities. Subsequent to the post-observation conference, the Principal assisted and assigned school staff to assist Respondent to improve her classroom performance and with her prescriptive activities. The date for completion of the prescriptive activities was May 9, 1997. Respondent completed the prescriptive activities on May 8 and 9, 1997. On May 29, 1997, an external review of Respondent's classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Petitioner's Regional Director (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Each observer rated Respondent independently on the TADS CAI. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD. After the external review, the Assistant Principal held a post-observation conference with Respondent. The Assistant Principal discussed the noted deficiencies and the prescriptive activities. Subsequent to the post-observation conference, the Principal again assisted and assigned school staff to assist Respondent to improve her classroom performance and her prescriptive activities. The date for completion of the prescriptive activities was June 12, 1997. Respondent failed to timely complete the prescriptive activities, submitting them on June 13, 1997. During the 1996-97 school year, Respondent failed to remediate the noted deficiencies. Respondent’s annual evaluation was conducted on June 11, 1997. Respondent’s overall performance was found to be unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1996-97 school year. By letter dated July 15, 1997, the Petitioner's Office of Professional Standards notified Respondent, among other things, that her performance assessment record for the 1995-96 and 1996-97 school years had been transmitted to the Florida Department of Education. Respondent was further informed that her performance assessment record was transferred due to Respondent receiving two consecutive unsatisfactory annual evaluations and that she was being provided written notice that her employment with Petitioner was being terminated, not being renewed, or that the Petitioner intended to terminate, or not renew, her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a final order: Not renewing the professional service contract of Helen F. Ruby. Dismissing Helen F. Ruby from employment with the School Board of Dade County. Denying backpay to Helen F. Ruby. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Twila Hargrove Payne, Esquire School Board of Dade County 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest 3rd Avenue, Suite 1 Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Mr. Roger C. Cuevas, Superintendent School Board of Dade County 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308
The Issue The issue in this case is whether Respondent is guilty of misconduct in office or wilful neglect of duty as a teacher.
Findings Of Fact Respondent is a professional chef. After teaching at two schools for 17 years in Massachusetts, Respondent moved to Florida and became a culinary arts instructor at Mid-Florida Tech in January, 1990. Mid-Florida Tech is a vocational educational center operated by Respondent, evidently for students of at least high school age. Respondent was employed at Mid-Florida Tech as a culinary arts instructor through May, 1993. For the 1992-93 school year, Respondent was employed under a professional service contract. Typically, the culinary arts program leads to a certificate certifying that the student has completed the course requirements in training to become a chef. The course normally takes 18 months of classwork, which consists mostly of practical exercises by the students preparing various types of food. There is little lecturing in the class, which is located in a very large institutional kitchen with four or five workstations. There is an adjoining dining room in which the students can serve the meals that they have prepared. There is also a walk-in refrigerator in which various foods are stored. Respondent has an office adjoining the kitchen area. The office has a large window with no blind, so that it is visible from almost all points within the kitchen. Respondent taught the students and was assisted on an occasional basis by two visiting chefs. Much of the classwork, which took place daily from about 7:30 am to 2:00 P.M., consisted of students preparing food under the direct supervision of Respondent, who would circulate among workstations through the vast kitchen. The class during the 1992-93 school year was loosely structured. Several of the students were special education students. Some students presented behavioral problems. Some students were adults who were expressly interested in retraining for a new career. For a variety of reasons, attendance was sometimes irregular as some students merely cut the class and others could not always attend due to the conflicting demands of children and jobs. J. D. became a student at Mid-Florida Tech in February, 1993. She enrolled in the culinary arts department and was assigned to Respondent's class. The mother of four children, J. D. received financial assistance from a private industry council and intended to obtain her culinary certificate in order to begin a new career and better support her children financially. J. D. became uncomfortable in Respondent's classroom due to the sexual tone of Respondent's comments. Respondent interspersed numerous sexual jokes and innuendos with his teaching. Amid the confusion that often prevailed in the class, Respondent would circulate, "entertaining" the students with various comments and behaviors, such as a recurring imitation of stereotypical behavior associated with male homosexuals. In this routine, Respondent would place one hand on his hip, hold another hand in front of him with a limp wrist, raise his voice an octave, and sometimes muse to the class whether he wanted a boy or a girl today. At some point, the sexual humor became vulgar by any reasonable standard. Respondent one time recounted to J. D. that he had a dream that she was sitting on his face while he was having oral sex with her and, when he awoke, he found his cat sleeping on his face. Respondent recounted versions of this dream to J. D. on two occasions: one time they were in the kitchen out of hearing range of other students in the area and another time in the presence of another male classmate E. K., who was a good friend of J. D. On another occasion, J. D. was speaking to Respondent about an upcoming test. There were various competencies that each student had to demonstrate to Respondent's satisfaction in order to progress to the point where they could take the final test leading to the certificate at the conclusion of the program. Respondent assured her that if she had sex with him "three different ways" that she would not have to take the test. Another time, as J. D. and Respondent were talking just outside of his office, he said to her, "Come behind my desk and given me some head." By "head," Respondent was referring to oral sex. On one other occasion, Respondent greeted J. D. with the remark that she looked hot and he wanted to peel the pants off her. The record does not disclose any additional remarks that Respondent made to J. D. directly or to the women in the class generally. However, he did, on more than one occasion, moan as J. D. walked by him. Three times Respondent initiated offensive touching. One time, he followed J. D. into the walk-in refrigerator and briefly grabbed her buttocks. Another time he passed by her closer than was necessary and brushed her breasts with his hand or shoulder. Another time he squeezed against her body as she and other students were circled around a workstation watching a demonstration by a visiting chef. The above-described sexual behavior was unwelcome by J. D., who found Respondent repulsive. In part due to a vast difference in their size and personalities--Respondent is more extroverted and J. D. more introverted--J. D. felt intimidated by Respondent. She did not ask him to stop this offensive behavior for fear of offending him and jeopardizing her ability to obtain a chef's certificate. She did not complain to other teachers or administrators until May, 1993, for the same reasons. Due to her increasing repulsion at Respondent's behavior and the demands of a new job, J. D.`s attendance fell off somewhat toward the end of Respondent's employment with Mid- Florida Tech. There is no doubt that Respondent's behavior, regardless of his intentions, interfered with J. D.'s education and would have interfered with the education of any reasonable person under the circumstances. Another perspective on Respondent's behavior during the 1992-93 school year is provided by a female staff person, Clair Blanchard. Ms. Blanchard is a special needs coordinator, whose responsibilities required that she visit Respondent's classroom periodically to monitor the progress of the special education students attending Respondent's class. Respondent's routine with Ms. Blanchard was to hang over her at Wednesday luncheons, in front of all the other students, singing in imitation of the entertainer, Dean Martin. Respondent would get in Ms. Blanchard's face and tell her she was beautiful. He would wrap his massive arms around her, as well as other females in Ms. Blanchard's presence. Ms. Blanchard repeatedly demanded that Respondent stop hugging her and he ignored her. On another occasion, Ms. Blanchard and Respondent had a conference with a male student, whose misbehavior jeopardized his continued enrollment at Mid-Florida Tech. The purpose of the meeting was to discuss the student's behavior and warn him that he could be expelled if he did not straighten out. Despite the gravity of the situation, Respondent undercut Ms. Blanchard's role by constantly blowing her kisses across the desk in full view of the student. A situation unrelated to the present case led to Respondent's removal from the classroom in May, 1993. Respondent did not endear himself to certain administrators at Mid-Florida Tech for a variety of reasons, such as his involvement of the union in a pay issue, flamboyant classroom behavior, and loose classroom management. In any event, a long-standing dispute concerning Respondent's contract status came to a head toward the end of the 1992-93 school year. Fearing that Respondent would not be hired to teach the following year, various students became involved in an effort to retain Respondent. Many of the students were quite fond of Respondent. Some of the students feared only that the culinary arts course would be discontinued if Respondent were not rehired. It is unclear to what extent Respondent was involved with the students' efforts, but he did telephone a newspaper reporter, hand the phone to J. D., and ask her to tell the reporter what was going on and express her support for Respondent. J. D. did as instructed, and the reporter told her that there was no story there. Sensing that Respondent was behind the students' efforts to allow him to keep his job, the administration relieved Respondent of his teaching duties on May 14, 1993, and assigned him administrative duties until the end of the school year. Respondent's replacement was Valerie Shelton, who was a female teacher in the culinary arts program. Two weeks after Ms. Shelton assumed Respondent's duties, J. D. felt sufficiently emboldened to complain to her about Respondent. Ms. Shelton arranged for the still-reluctant J. D. to speak with an administrator. Following an investigation, Petitioner terminated Respondent's contract on the grounds set forth in the Administrative Complaint. Respondent provided no insight into his behavior, as he elected at the hearing to deny that any of the above-described events took place. Likely, Respondent intended to be humorous with at least some of his comments. As J. D. reported to Ms. Shelton, J. D. herself believed at first that Respondent's behavior was, although in poor taste, only joking. However, as the comments became more vulgar and accompanied by offensive touching, J. D. was more profoundly affected by Respondent's behavior. Regardless of Respondent's true intent, J. D. became more reluctant to attend class and contemplated dropping out of the culinary arts program. Regardless of Respondent's specific intent or state of mind when engaging in this behavior, the reaction of J. D. was reasonable under the circumstances. Respondent's conduct constitutes misconduct in office as it pertains to J. D. Respondent's misconduct, as described above, was so serious as to impair his effectiveness as a teacher in the school system. In addition to the effect that he had on J. D., Respondent undercut the authority of another teacher, Ms. Blanchard, and thereby implicitly condoned student misbehavior and explicitly reinforced the sexually abusive classroom atmosphere. Despite Ms. Blanchard's protests, Respondent continued to hug her repeatedly in the presence of students and treated her in a demeaning manner based on sex. This behavior undermined her authority with the special needs students and, more importantly, with the other students who periodically mistreated the special needs students.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's contract for misconduct in office. ENTERED on April 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 4th day of April, 1994. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-4860 Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as recitation of evidence. 5: rejected as subordinate. 6: rejected as recitation of evidence. 7-22: rejected as subordinate. 23-28: adopted or adopted in substance. 29: rejected as subordinate. 30-31: adopted or adopted in substance. 32: rejected as subordinate. 33: rejected as recitation of evidence. 34: adopted or adopted in substance. 35-36: rejected as subordinate. 37-38: rejected as irrelevant. 39-41: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4-5: rejected as subordinate. 6-9: adopted or adopted in substance. 10-11: rejected as recitation of evidence and subordinate. 12-13 (first and second sentences): adopted or adopted in substance. 13 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 14: rejected as subordinate. 15-16: rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence to the extent that the effect of Respondent's offensive behavior is discounted. 18: rejected as irrelevant. 19-27: rejected as subordinate. COPIES FURNISHED: Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Donald Shaw Superintendent, Orange County School District P.O. Box 271 Orlando, Florida 32802-0271 Rosanna J. Lee Honigman, Miller 390 Orange Ave., Ste. 1300 Orlando, Florida 32801-1677 Ronald G. Meyer Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, Florida 32302 Frank C. Kruppenbacher Kruppenbacher & Associates, P.A. P.O. Box 3471 Orlando, Florida 32801-3685
Findings Of Fact The Respondent Carr has been employed as an art teacher for the School Board of Dade County, Florida, since approximately 1972. He has taught at the senior high, middle school, and elementary school levels. He obtained tenure during 1976 or 1977. He has had varying levels of success according to his official performance evaluation ratings that are contained in his personnel file. In all but three years of his service, his annual evaluations have contained at least one category that was at or below an acceptable level of teaching in the Dade County Schools. Since the 1979-80 school year, the Respondent has received unacceptable ratings in three out of eight evaluative criteria on his annual evaluations. Respondent Carr has been the subject of personnel investigations on five different occasions, each involving the alleged use of physical contact beyond what is normally acceptable with students. Three instances of misuse of physical contact/corporal punishment were tried at the November 14, 1983, hearing. In the first incident which occurred in September, 1978, the Respondent came up behind a student and placed his hand in the student's hair in order to remove him from a classroom. From that point forward, it is unclear exactly what occurred since the incident which happened five years prior to the hearing could not be specifically recalled by the student. The student did, however, swing his arms at the Respondent in order to release the Respondent's grasp on the back of his head. In the second incident which also occurred in September, 1978, Respondent reached across student Byron Martin's desk with a pole or a stick and tapped the student on the head. The Respondent did not hurt the student who testified at the final hearing that other people made a bigger issue out of the incident than he did. In the final incident, during October or November, 1982, the Respondent turned the head of student Karen Bass, a nine-year-old girl, in order to get her attention. Karen became scared and began to cry. The Respondent did not intend to strike or frighten Karen, but turned her head to try and prevent her from being distracted by another student. Respondent was formally observed by the assistant principal of Edison Park Elementary School, Jill Witlin, on May 15, 1980. He was found to be overall unacceptable and specifically unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. The Respondent was marked unacceptable in classroom management because he was not able to manage the classroom. The students did not respond to him. They did not follow his directions or do what he asked them to do. As he became frustrated with the class, he would use sarcasm and cynicism. The Respondent addressed the students in an angry manner and did not seem to know their names. At times he would bring students to the office, pushing them toward the assistant principal saying that he could not deal with them. This is an inappropriate way to handle students because it lets students know that a teacher cannot deal with them, lets them see the teacher's frustrations, and is a misuse of physical force. A teacher is required to have the skills and techniques for dealing with students calmly, despite emotions. Mrs. Witlin rated Respondent unacceptable in techniques of instruction because Respondent dealt with very technical kinds of instruction without following conventional, developmental learning modes of children. The lesson was too heavily teacher-directed and Respondent was very concerned with the ultimate art product. His instruction was very technical without giving the children any sense of where they were headed. This is not an appropriate way to teach elementary school children. Such children learn best when they have some sense of what they are doing and why they are doing it, rather than just following instructions. Respondent taught above the level of the children and used vocabulary and instructions that were too difficult for them to understand. There were times when Respondent did not use CurriculArt. There were other times when he did use CurriculArt but he did not fulfill many of the aspects of what the CurriculArt manual suggested. Respondent was marked unacceptable in teacher-student relationships because he talked to the students in a harsh manner. He did not know the names of his students so he called them "Boy" or "Girl." He referred to the students in a negative manner and did not have a good opinion of what they could accomplish or learn. He was negative toward what they knew and what they could produce. He was also negative about their behavior. There was screaming coming from his room that could be heard in the hallways. Respondent could be heard saying "shut up" to his students. Respondent would make negative comments about students in front of other students. This is inappropriate because it can damage a child's self- concept, does not provide a proper role model for a child, and makes the teacher immediately lose his position as an authority figure. As a result, some of the Respondent's art students did not want to go to his class at all. On Respondents's annual evaluation, although he received three unacceptable categories, he was recommended for employment the following year. His classroom management was unacceptable because he spent a great deal of time at the outset of classroom time lecturing students about their behavior from the previous week's class. He took up 10 or 15 minutes of instruction time doing this. Once he got the class started, the students lacked direction and walked around the room not knowing what their particular task was. Respondent had great difficulty in keeping their interest and keeping everyone on task. At times the room became so noisy that Respondent had to scream and yell in an attempt to get the class under control. The class got progressively worse as the classroom time extended. The Respondent was marked unacceptable in teacher-student relationships because he had difficulty in working with students in a positive manner. He name-called and belittled students in front of other students. He said such things as "stupid" and "you are stupid" and "you really don't know what you are talking about; you are no good." These statements are demoralizing and ridiculing to students in front of other students. His instructional techniques did not motivate and enable students to learn. Respondent was next formally evaluated by his principal, Della Zaher, on June 16, 1981. He was found to be overall unacceptable and was rated unacceptable in the categories of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was marked unacceptable in preparation and planning because he did not have his materials ready for this particular class. He began the class by talking about the children's negative behavior from the week before. Then he spent a good portion of the class time trying to retrieve the materials and getting them ready for the classroom instruction. In the meantime, the children became disruptive because of the time that Respondent had taken for this preparation. Respondent was marked unacceptable in knowledge of the subject matter because his vocabulary was overly advanced for elementary-age children and they had no idea what he was saying. The students did not understand the intent of the lesson. Most of the time, they were sitting idle, not comprehending the lesson. This led to unacceptable classroom management. Respondent was marked unacceptable in classroom management because of his negative and sarcastic comments to the children. There was no mutual respect on the part of the children or the teacher. If the children did not follow exactly what was presented to them, he would tear up their papers and throw them in the waste basket. When the children did their tasks incorrectly, Respondent could be heard outside of his classroom scolding his students even with the door closed. The children were not in their seats and were not working on the lesson. The entire classroom period was devoted to this type of disruptive behavior. Respondent could not correct the children by calling their names because he apparently did not know their names although he could have learned their names through the use of a seating chart or name tags. Other teachers who taught special classes, and who had as many students as Respondent, did not have the same difficulty ascertaining the names of the children. Respondent did not improve in his knowledge of the children's names by the end of the school term or from year to year when he had many of the same children again. Respondent was marked unacceptable in techniques of instruction because he did not have a way of explaining the assignments and giving clear instructions to his students. He never completed a task on time because he took too much classroom time disciplining the students and telling them about their behavior from the previous week. Because of this, he did not finish his lessons. The endings of his class periods were chaotic. Respondent was marked unacceptable in assessment techniques because of the manner in which he graded students' papers. He used a random assessment technique. There was no consistency in grading procedures. He would have the students stand up and show their papers and he would try to grade them. This technique can be ridiculing to students. There was very little meaning in the lesson for the children because he did not explain to them why they got the grades they got. He never completed an entire class and he spent a great deal of the class time at the end of the period trying to record grades. The students who were not being graded were disruptive. The Respondent kept no individual folders on the students where a student's progress could be monitored; instead, the papers were placed in a stack of papers in a closet. With Respondent's lack of a paper filing system, it would be impossible to explain to a parent why a child got a particular grade on his report card. His grade book was not up-to-date and he did not have sufficient grades for each child. Respondent was also marked unacceptable in student-teacher relationships because of his continual negative approach. Respondent did not indicate any real respect for each individual child in his classroom. There were some students who did not want to go to art class. In every conference that Respondent had with the principal, Respondent reminded her that black children could not learn. He also stated this belief to Ms. Witlin in that he felt the schools were spinning their wheels and wasting their time working in a low income, black area. Respondent was marked unsatisfactory in professional responsibility because he had difficulty turning his grades in on time so that the classroom teachers could record the students' art grades on their report cards. Respondent was again recommended for employment on his annual evaluation for the 1980-81 school year, although he was rated unacceptable in the categories of classroom management, techniques of instruction, and teacher- student relationships. He was recommended for reemployment because he had shown some improvement and the principal was interested in trying to improve his instructional techniques and his classroom instruction. Respondent was next formally observed by his principal, Mrs. Zaher, on September 25, 1981. While Respondent was marked overall acceptable, he was still unacceptable in classroom management, teacher-student relationships, and in one subcategory of preparation and planning. Respondent was unacceptable in classroom management because his voice was still very loud. He would almost lose complete control when he could not get the students' attention. He still began the class by lecturing to them about their behavior from the previous week. He did not have the materials ready to begin the lesson which added to the poor classroom management and resulted in more disruption. The children became disruptive each time Respondent had to retrieve supplies. Respondent was marked unacceptable in teacher-student relationships because he was unaware of the lack of student interest and other individual differences which caused students to be disruptive. Respondent was next formally observed by Ms. Witlin on October 23, 1981. Although he was found to be overall acceptable, this observation was a result of priming by Ms. Witlin. She met with Respondent early in the year to go over the observation form in great detail prior to the actual observation in an attempt to show him exactly what she would be looking for. He followed through on many of the things she had suggested. As a result, the lesson was acceptable. The next formal observation was performed by Jacqueline Hinchey, Art Supervisor for the Dade County Public Schools. Ms. Hinchey was called in to give advice to Respondent. She attempted to be as positive as possible. She rated the Respondent acceptable even in borderline areas in her attempt to be helpful and positive. Ms. Hinchey rated the Respondent overall acceptable. She felt that while he had made strides in improving his instructional techniques and public relations strategies, his knowledge of child development was still very limited. The major shortcoming of his teaching was that because he did not understand how children grew, he was unable to level his knowledge in a manner so that the children could understand and be able to succeed. Because of his lack of understanding how children grew, he had unreal expectations of them. This resulted in his will being pitted against the children's will. As a result, Respondent became angry. The children were not doing what he expected them to do or what he wanted them to do or they could not do it, and he, therefore, became angry. He was not using CurriculArt. CurriculArt is a School Board-approved program which incorporates the School Board's balanced curriculum. A teacher is required to use CurriculArt unless he has submitted a different, but acceptable, program to Ms. Hinchey. Since no school in the county has submitted an alternate curriculum, it would be expected that all art teachers, including Respondent, would be using CurriculArt. Respondent was still assessing the children's work by having them hold up their work, and he would say that one child's work was the best. This is not an appropriate assessment technique because he did not explain why a work was the best and also makes the other children feel inadequate. The Respondent tended to talk too long and his demonstrations were too technical and detailed for the age group with which he was working. Since not all the children could see his demonstration, they would begin to get fidgety. Respondent was recommended for reemployment at the end of the 1981-82 school year. Although Respondent needed to improve his techniques of instruction, he was showing some improvement. Respondent was next formally observed by Ms. Witlin on November 15, 1982. He was found to be overall unacceptable and was rated unacceptable in one subcategory of preparation and planning and in the areas of techniques of instruction, assessment techniques, and professional responsibility. Respondent was marked unacceptable in Part A of preparation and planning because while his planning was done, the lesson was not an effective one. He needed to plan his lesson in much greater detail in terms of what he wanted to accomplish, what time frames he would use, and what specific actions he would take. Respondent was still not using CurriculArt. Respondent was marked unacceptable in techniques of instruction because he did not accept student responses and utilize students' ideas, and he did not vary instructional strategies or adapt his methodology to different students. Respondent was marked unacceptable in assessment techniques because art projects were not graded and were not organized into portfolios. There were insufficient grades in the grade book. There was no ongoing regular assessment week after week and the assessment was irregular. Respondent was marked unacceptable in professional responsibility because there were consistent delays in getting his art grades to the home room teachers. If Respondent would have kept up with his grades on a weekly basis and had averaged them, he would not have had a problem getting his grades to the home room teachers. He had to rush to get the grades in to the teachers at the last minute and as a result, the other teachers bothered the assistant principal for them all day long on the teacher workday. This was not a professional way to operate. Further, Respondent's room was very disorganized, messy, and uninviting. The next formal observation was performed by Ms. Witlin approximately a week and a half after her last observation. This observation took place on November 24, 1982. "While his progress was not fully acceptable, there was propress over the prior observations. Ms. Witlin wanted to encourage Respondent's use of CurriculArt which she had prescribed in the prior observation. His classroom management was unacceptable because he spent an inordinate amount of time introducing the lesson, preparing the materials for it and following the CurriculArt card to the letter. He began to lose track of time. He was not able to pace the lesson properly and when he told the children to stop doing their work they did not listen to him. As time ran out and things started to unravel, the Respondent became frustrated. Classroom discipline broke down badly. He was not able to grade the children's work or give them a conduct grade. He was marked unacceptable in a subcategory D of techniques of instruction because he did not give ample time for cleanup, or organization of materials, and for putting away art products. The next formal observation was performed by Ms. Zaher on December 14, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in classroom management, techniques of instruction, and in one subcategory of preparation and planning. He was found unacceptable in category C of preparation and planning because he did not arrange for the distribution of materials in an effective manner, and he did not begin his lesson on time. He would begin his lesson by spending time talking about the children's behavior from the prior weeks. He was never able to complete a lesson because of the time taken to discipline the children and to give instructions as to how they should behave. Respondent was marked unacceptable in classroom management because he never got the class under control. He ran out of time and did not complete grading. He did not close his lesson. He spent too much time trying to get the classroom under control. Students were out of their seats running around the room and exhibiting disruptive behavior. Respondent was marked unacceptable in techniques of instruction because the children had no time to finish their lesson and clean up. Respondent lost instructional time because of disruptiveness. Although Respondent was rated acceptable in assessment techniques, he was still shouting out grades in front of the whole class, and taking up a great deal of time trying to grade the children. The next formal observation was performed by Ms. Hinchey on January 10, 1983. He was rated overall unacceptable and was unacceptable in the areas of classroom management, techniques of instruction, and teacher-student relationships. Respondent deteriorated in his teacher-student relationships and in his teaching techniques since Ms. Hinchey's prior observations. Teacher-student relationships was marked unsatisfactory, because Respondent frequently appeared and sounded angry with his students. He still did not know the names of the students and pointed or gestured at the students when he wanted them. The students became fidgety and began to nudge each other and whisper. The more this happened, the more upset Respondent became. He gave the students angry looks and raised his voice. Techniques of instruction was marked unsatisfactory because one-third of the class could not see a demonstration rubbing. As a result, the children did not get the idea of what a rubbing is. They did not get the idea of repeating the shapes on the page and there was no planned critique at the end of the lesson so that the children could see if they understood the goals of the lesson. Respondent was still assessing the students' work by choosing the best one at the table. Respondent was using the Curricul Art card but the lesson was misleveled and the lesson was very minimal. During the many informal observations of Respondent, he fared no better. He had the same kinds of problems that he had on the formal observations. He was having trouble in all of his classes and he was frustrated and angry with his students. The administration has attempted to help Respondent improve his teaching. Since Respondent had been having difficulties in his prior school assignment, Ms. Hinchey recommended that he be placed in the elementary level where there was more structure and a curriculum that could easily be followed. She recommended that he be put with an administrator who was known to be a helping person and someone who would patiently work with him. Her recommendation was that Respondent be placed with Della Zaher at Edison Park Elementary. Ms. Zaher had a reputation of being an administrator who could get along with individuals and would try to work with them closely to get the best out of them. After various classroom observations, the administrator prescribed various means of help for the Respondent. It was recommended that Respondent observe two good art teachers in other inner-city elementary schools in order to see that it was possible to get good control from these students. An assertive discipline workshop was also prescribed for the Respondent. It was recommended to Respondent that he take the time to learn the students' names. The administration ordered any supplies that Respondent wanted in order to provide him adequate materials with which to work. The administrators recommended that Respondent establish classroom rules, enforce them, and use behavior modification techniques. Conferences were held with Respondent in order to help him improve. It was suggested that Respondent meet with the counselor of the school in order to learn positive techniques for motivating student interest and for learning techniques to control student behavior in a positive way. It was recommended that Respondent attend workshops. It was recommended that he tape his own lessons to hear how he addresses students so that he would be aware that he was not getting the response that he wanted. Ms. Witlin asked Respondent to discuss his feelings about the students and to take a humanistic attitude toward the children and to observe a variety of teachers at Edison Park, teachers of the young, and teachers of old, and teachers of ethnic groups to see how pleasantly and positively they got along with the students. In early October, 1981, as discussed above, Ms. Witlin gave Respondent extra help prior to his November 15, 1982 observation in order to help him reach an acceptable observation. After the November 15, 1982 observation it was prescribed that Respondent begin to use CurriculArt. Ms. Witlin developed an elaborate procedure in order to help the special teachers get their grades to the home room teachers on workdays. Ms. Zaher brought in the art supervisor, Jacqueline Hinchey, to give advice to Respondent. Ms. Hinchey recommended the CurriculArt workshops for Respondent. She also recommended that the area art consultant and the assistant principal work with Respondent. The area art consultant worked specifically with Respondent in the areas of classroom management and planning five or six times during the 1982-83 school year. He assisted Respondent with planning and did a demonstration lesson for Respondent. The art consultant recommended the two teachers whom Respondent was to visit in the other schools. None of these prescriptions seemed to improve Respondent's performance. As a final attempt to offer Respondent an opportunity to improve his teaching, Ms. Zaher recommended a reduction from continuing contract to annual contract status. She felt that if he would understand that the school system meant serious business, Respondent would do something about his teaching. This was the last remedial action, a final opportunity for Respondent to improve his teaching while on a probationary status and placing the burden of competent performance on him. On December 17, 1982, Ms. Zaher put Respondent on notice that he had not sufficiently improved in the areas of planning, classroom management, and techniques of instruction and assessment. At that time, she could not recommend him for continuing contract status. She indicated that in order to be recommended for continuing contract by February 25, 1983, there must be improvement as indicated in her memo. On February 9, 1983, Ms. Zaher notified Respondent that she would be recommending that he be returned to annual contract status for the 1983-84 school year since the standard of performance indicated on her memo of December 17 had not been achieved. At a conference-for-the- record with the Executive Director, Division of Personnel Control of the Dade County Public Schools, on March 14, 1983, the charges were made known to the Respondent, and his prior investigative reports were reviewed. It is the consensus of opinion of the administrators who observed Respondent that the students in Respondent's class did not receive the minimal amount of educational experience to which they were entitled. There was a repeated failure on the part of Respondent to communicate with and relate to the children in his art room to such an extent that they were deprived a minimum educational experience. The art experience was a very negative experience for his students. Although Respondent is intelligent and knows his subject matter, he is a poor teacher. On March 23, 1983, the Superintendent of Schools notified Respondent that he would recommend to the School Board at its next regularly scheduled meeting on March 30, 1983, that Respondent's continuing contract be removed and that he be returned to annual contract status for the 1983-84 school year. The Superintendent's letter indicated a right to a hearing and a time frame within which to exercise that right. It also contained a copy of the charges, to wit: . . . for just cause including, but not limited to, incompetency . . . . On March 30, 1983, the Superintendent filed his written recommendation with the School Board, and the School Board acted to remove the continuing contract of Respondent and to return him to annual contract status effective for the 1983-84 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: That a final order be entered by the Petitioner, Dade County School Board, affirming the reduction of contractual status of the Respondent Richard Carr from continuing contract to annual contract status. DONE and ENTERED this 11th day of October, 1984 in Tallahassee, Florida. SHARYN L. SMITH 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 11th day of October, 1984. COPIES FURNISHED: Ellen L. Leesfield, Esquire Jesse J. McCrary, Esquire DuFresne and Bradley 3050 Biscayne Boulevard 2929 S. W. Third Avenue Suite 800 Fifth Floor 3050 Miami, Florida 33137 Miami, Florida 33129 William DuFresne, Esquire Dr. Leonard Britton 1782 One Biscayne Tower Superintendent of Schools 2 South Biscayne Boulevard Dade County Public Schools Miami, Florida 33131 1410 Northeast Second Avenue Madelyn P. Schere, Esquire Suite 200 1410 N. Second Avenue Miami, Florida 33132
