The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of August, 2015.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of June, 2015.
The Issue Whether Respondent should be transferred from Glades Middle School to an opportunity school.
Findings Of Fact For the 1989-90 school year John Sarmiento was enrolled in the Dade County public school system and he was assigned to the eighth grade at Giades Middle School. On November 27, 1989, Petitioner administratively transferred him from Glades Middle School to J.R.E. Lee, an opportunity school. The stated basis for the transfer was the student's disruptive behavior and his failure to adjust to the regular school. As an opportunity school, J.R.E. Lee has a more structured program than a traditional school, such as Glades Middle School, and is designed to assist students with discipline problems. While attending Glades Middle School, John Sarmiento repeatedly engaged in disruptive conduct that interfered with his own learning and with the learning of others in his classes. This conduct resulted in his being referred to the assistant principal's office between five and ten times per week. On one occasion the student, while in class, threw a piece of chalk at another student. On another occasion, the student engaged in an argument with another student that almost resulted in a fight during class. On an almost daily basis, the student would wander around the class while making loud, boisterous comments. This student's misconduct would have merited his suspension according to the district code of student conduct. Instead of suspending this student, the school officials worked with him and with his parents in an effort to improve his behavior. Unfortunately the considerable efforts of the personnel at Glades Middle School to serve the student's educational needs did not succeed. The student needs the structured environment that the opportunity school can provide, and his educational needs will best be served by his transfer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which approves John Sarmiento's assignment to the J.R.E. Lee opportunity school. DONE AND ENTERED this 3rd day of April 1990, 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 3rd day of April 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Maria Ruiz de la Torre, Esquire 7111 Biscayne Boulevard, Suite Three Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Paul W. Bell Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact The Respondent, Lawrence Brennan, holds Florida teaching certificate number 250648, issued by the State Department of Education. The Respondent is certified in the area of English and his certificate is valid through June 30, 1988. The Respondent is a tenured teacher in the Duval County School System in which he has taught since September 8, 1969. The Respondent has taught at Paxon Junior High School since 1984-84, and has taught compensatory education in Paxon Junior High School during school years 1984-85 and 1985-86. Compensatory education is a special program for children with low test scores. Many of the students also have disciplinary problems. The Respondent received satisfactory evaluations for the last three full years of his employment, to include his years at Paxon. The Respondent was removed from the classroom and Paxon Junior High School following the altercation with a student on February 27, 1986, which gave rise to these charges. The Respondent is currently assigned to one of the media centers of the Department of Education in Duval County. The Respondent was informed in writing of the various requirements and responsibilities of teachers in the Duval County School System. Bresha Woods was a student of the Respondent's in November 1985. Ms. Woods had received six to eight referrals to the Principal's office through November 1985 for disrupting class and for not performing assigned duties. Subsequent to the incident described here, Woods was suspended and transferred to the Darnell Cookman Alternative School in March of the 1985-86 school year. On November 7, 1985, the Respondent told Woods to take her things and to go to the Principal's office for not doing her work and disrupting class. Woods delayed, slowly gathering her books, purse and other belongings. The Respondent approached Woods from the rear as she was at her desk, grasped her by the shoulders, pulled her to her feet alongside the desk, turned her toward the door of the classroom and told her to go to the school office. Woods' statement that she was "marked up" is not credible and the fact that she visited a physician on March 29, 1987, is not relevant because of the passage of time. No report of the physician's findings was offered. Woods' report to Atkinson that Respondent had choked her was contrary to Woods' sworn testimony. Atkinson accepted Woods' version of events as opposed to the explanation of Respondent. See T 179, 180. In January 1986, Delilah Elliott, a new student at Paxon, was late for class and cut across a grassy area between the wings of the classroom building which was closed to walking students. Between classes the Respondent was performing monitoring duties outside the classroom as do many of the teachers and staff and observed Ms. Elliott crossing the prohibited area. The Respondent called for Elliott to stop. Although Elliott heard the Respondent call for her to stop, she ignored him, attempting to go to her next class. The Respondent approached her, grabbed her by the shoulders to restrain her, and pushed her toward the sidewalk. She attempted to walk around him and continue on to her class. Elliott refused to tell the Respondent her name. The Respondent herded Elliott to the Principal's office, sometimes pushing her in the back when she stopped walking. Ms. Atkinson, the Assistant Principal in charge of disciplining girls, having seen the incident, followed the Respondent to the office. Atkinson told the Respondent not to be so physical with the children. The Respondent advised Atkinson that he knew what the rules were. Atkinson advised the Respondent that she would take care of the problem, and that he should return to class. Atkinson took no action against Elliott because, according to Atkinson, walking on the grass was not a referral offense. As the Respondent exited the office, Atkinson heard the Respondent say to Elliott, "You little tramp." The Respondent was frequently in physical contact with students in his class. Craig Monasco and Frank Lane were students in the Respondent's class. The Respondent grabbed their buttocks on several occasions when they were leaning over getting books. This practice, called "scooping" by the students, was a form of horse play engaged in by the students. The students were embarrassed by this. On other occasions, the Respondent pulled students out of their seats in the process of disciplining them within the classroom. Leopolean Spikes was a 13 year old black student in the Respondent's 7th grade comp. ed. English class. Spikes had a history of disruptive behavior in class and had been sent to the Principal's office several times during the school year. On February 26, 1986, Spikes was disruptive in class and the Respondent escorted him to the Principal's office. On this occasion, Spikes had refused to accept the referral, and Spikes said he was going to have his father come out and talk with the Respondent. The Respondent added Spikes' additional comments to the referral regarding Spikes' behavior and escorted Spikes to the Principal's office. Upon re-entering the class, the Respondent stated to the class that had Spikes hit him, the Respondent would have knocked him through the wall. The Principal gave Spikes an in-school suspension for his conduct of February 26, 1986. However, based upon the general school policy, a child with the number of referrals that Spikes had had would have been subject to general suspension. On February 27, 1986, Spikes reported to the Respondent's first period comp. ed. class. Spikes exhibited additional disruptive behavior during the class period of approximately 50 minutes in length. During this time, the Respondent warned Spikes on several occasions that he was going to refer him again if his behavior did not change. Shortly before the class was over, Spikes' continued disruptive conduct caused the Respondent to write a referral of Spikes to the Principal. The Respondent told Spikes to go to the Principal's office. Spikes delayed in getting his personal effects together to go to the Principal's office, and the Respondent went over to Spikes and told him to hurry up and leave the class. Spikes told the Respondent that he would not go to the Principal's office. At this point, a conflict exists in testimony regarding what occurred next. The one non-involved adult observer, Ms. Morkin, the co-teacher, stated that she observed six "acts" to the incident: (1) Spikes stood around reading the referral and not doing anything; (2) Respondent guided Spikes to the door by the shoulder; (3) Spikes ran around her desk to his own desk by the windows and wall; (4) Books were thrown in the direction of her desk from the vicinity of Spikes' desk; and (5) A struggle ensued between Spikes and Respondent, which came to an end with the Respondent kneeling next to Spikes and restraining Spikes on the floor. The various student witnesses had more dramatic versions of the incident, but one can trace the activity by its location. Their versions began with: (1) Spikes refused to go and told Respondent that he was not going to the office at or around Spikes' desk; (2) Spikes or Respondent threw books; (3) Spikes and Respondent fought in the area of the desk; (4) Spikes threatened Respondent with a desk; (5) Spikes and Respondent fought in the area of the wall and Spikes' head hit against the wall; and (6) The fight ended with Respondent pinning Spikes to the floor. The following findings are based upon a most credible evidence and testimony presented: The Respondent was standing in the aisle alongside Spikes' desk and between Spikes' desk and the front of the room where Ms. Morkin's desk was located. Spikes, when confronted by the Respondent and told to hurry, told Respondent he refused to go, and threw his books at Respondent, who was standing between Spikes and Morkin. Spikes adopted a combative stance and the Respondent grabbed Spikes' arms, fearing that Spikes was going to strike him. Spikes began to struggle and both Spikes and the Respondent fell to the floor. Respondent let go of Spikes and regained his feet and Spikes pulled himself to his feet using the back of a school desk which he raised in front of him and advanced toward the Respondent saying, "I'm going to hit you with this desk. See T-70. The Respondent pushed the desk out of the way, grabbed the writing portion of the desk, then grabbed Spikes and a second struggle ensued, during which Spikes hit the Respondent, who grabbed Spikes in a bear hug. Spikes and the Respondent were by the windowed wall of the classroom, and the Respondent attempted to pin Spikes against the windowed wall to stop his struggling and prevent Spikes from hitting him. In doing so, Spikes' head was banged against the window once. Spikes continued to hit the Respondent all this time. The Respondent and Spikes again fell to the floor where Spikes ceased fighting after Respondent pinned him down. After the struggle ceased, Ms. Morkin left to seek assistance as the Respondent requested. After he was at the office, a knot came up on Spikes' head. Spikes parents were called and they took Spikes to the emergency room where he underwent a complete examination, to include X-rays of his head. This examination revealed no abnormal findings except tenderness and swelling in the left occipital area of the head. Subsequent medical problems which Spikes has suffered were related to an injury to the right occipital area. No evidence of such an injury was revealed in the examination or reported by Spikes. See Petitioner's Exhibit The Respondent is approximately 6' tall and weighs approximately 200 pounds. Spikes is approximately 4'6" tall and weighs 72 pounds. Mr. Randolph and Ms. Atkinson, the persons in charge of disciplining children at the school, gave their opinions concerning the appropriateness of the Respondent's actions. In their opinion, the Respondent's actions were inappropriate. The record reflects that both Atkinson and Randolph had failed to apply the requisite disciplinary standards to students by taking action to remove them from the school system permanently, based upon continued disciplinary problems. Atkinson, who observed the Elliott incident, described the Respondent as "striking the student" and was of the opinion that a person who touches another person with their hand is striking the person. Mr. Larry Paulk, Assistant Superintendent for Administrative Affairs for the Duval County Schools, interviewed the Respondent after the altercation. To Paulk, the Respondent appeared hostile and was sarcastic in his dealings and approach to students. Paulk offered his opinion that the Respondent's conduct regarding discipline and leadership was inappropriate. The Respondent has attended psychiatric counseling for the past year to deal with his hostility and to improve his effectiveness as a teacher. There is no evidence of the Respondent receiving progressive discipline for prior acts involving physical contact with students, although he received several written reprimands for inappropriate conduct towards students to include physical conduct, language, and attitude. Mr. Randolph, the principal in charge of boys, advised that the school's solution for the removal of an unwilling child from class was to call the Principal. The Principal would come to the room and ask the student to come out of the classroom and, if the student refused, the Principal would then call a uniformed policeman who would arrest the child for trespassing. In Randolph's experience they had never had to take the final step of calling for a uniformed policeman.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a classroom teacher for the conduct alleged in the Amended Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Both West Hialeah and Aventura are public schools in Miami-Dade County, Florida. During the 2011-12 school year, Respondent was employed as a teacher assigned to West Hialeah. Respondent's teaching assignment during the 2014-2015 school year was as a teacher at Aventura. Respondent's employment is governed by the collective bargaining agreement between Petitioner and the United Teachers of Dade ("UTD Contract"), Florida Statutes, the regulations issued by the Florida State Board of Education as set forth in the Florida Administrative Code, and the School Board's policies and procedures. Respondent's Prior Discipline During the 2011-2012 school year, Respondent was investigated for hitting an exceptional student education (ESE) student at West Hialeah. The investigation concluded that there was probable cause to charge Respondent with violating School Board Policies 3210 and 3210.01. As a result, a conference-for- the-record (CFR) was held on December 15, 2011, wherein OPS District Director, Dr. Brown, issued Respondent directives to: adhere to all School Board policies, specifically 3210, Standards of Ethical Conduct; 3210.01, the Code of Ethics; and 5630, Corporal Punishment and the Use of Reasonable Force; refrain from contacting in person or by any other means any of the parties involved in the investigation; refrain from using physical means as a form of discipline; and [] conduct [herself], both in [her] employment and in the community, in a manner that reflects credit upon [herself] and the district. Respondent signed on January 3, 2012, that she was in receipt of these directives. Although the charges against Respondent relating to physical aggression against a student merited a recommendation from the School Board that Respondent be terminated, the School Board took into consideration Respondent's length of service with the School Board and the fact that she had not received any prior discipline. As such, it was recommended that Respondent be suspended for 25 workdays without pay. Respondent contested this recommendation. Following a final hearing on September 24, 2012, Administrative Law Judge Stuart M. Lerner found that Respondent used physical aggression toward an ESE student and recommended that the School Board uphold Respondent's 25-workday suspension. Ultimately, Respondent was suspended for 25 workdays without pay. The September 2011 incident was reported to the Florida Department of Education (Florida DOE), and a hearing was held on October 15, 2014, to determine whether any disciplinary measures should be taken on Respondent's educator certificate. Following that hearing, conducted by the undersigned, it was recommended to the Florida DOE that "Respondent be placed on probation for 90 days with a letter or reprimand to be placed in her certification file." The Recommended Order provided that, "[t]his penalty takes into account that Respondent's conduct, in striking the student, was inappropriate under any circumstances, but also places the conduct in perspective in relation to Respondent's otherwise incident-free teaching career." The September 17, 2014, Incident Respondent later began working as a teacher with ESE students at Aventura beginning in the 2012-2013 school year. During the 2014-2015 school year, Respondent worked as an Autism Spectrum Disorder (ASD) teacher. M.C., who suffers from ASD, was a student in Respondent's class during the 2014-2015 school year. M.C. and his family are from Argentina and the 2014-2015 school year was the first year M.C. attended a public school in the United States. Initially, M.C. could not take instruction in class. Respondent worked with him to develop the skills to take instruction by demonstrating actions, repeating instruction and praising the student for doing things correctly. Respondent taught M.C. how to write his name, catch a ball, and hold a pencil. Respondent shared a classroom with fellow teacher, Ms. Stubbs. Ms. Stubbs had her own set of students with varying exceptionalities. Ms. Stubbs had six middle school students and Respondent had six elementary school students. Ms. Pollard acted as Respondent's paraprofessional, helping Respondent with her students. Additionally, Ms. Charles would assist Respondent with M.C. for a few hours each day. Respondent's planning period was during the time her students went to art once a week on Wednesday. Respondent voluntarily gave up her planning period to assist the art teacher, Ms. Garcia, with the students. Ms. Garcia worked as an art teacher at Aventura for six (6) years. On September 17, 2014, Ms. Garcia was teaching art to Respondent's students. After Ms. Garcia had provided instructions for the class, she began walking around the room while the students worked on their assignment. M.C. was seated at his desk coloring with crayons. M.C. began throwing crayons on the floor and Respondent, who had been standing behind M.C. with her hands on his shoulders, grabbed M.C.'s hands and wrists and pulled him down to the floor, causing M.C. to fall down to his knees. Respondent told M.C. to pick up the crayons in a loud tone that conveyed she was annoyed. Once Respondent had M.C. on the floor, she held M.C.'s wrists, forcing him to pick up the crayons off the floor. All the while, M.C., who is non-verbal, was making noises like he was not happy. Ms. Garcia tried to help, but Respondent did not allow her, insisting that M.C. had to clean up by himself. M.C. eventually returned to his seat and then began spitting on the floor. Once again, Respondent pulled M.C. to the floor by his wrists, causing him to land on his knees. Respondent again appeared annoyed as she was forcing M.C. to wipe up the spit. Ms. Garcia attempted once more to assist in the clean-up, but Respondent did not allow her, stating that M.C. had to clean up his own mess. Although Ms. Garcia has seen other ESE students being restrained, she has never seen a teacher treat a student like Respondent treated M.C. by forcefully pulling him to the floor. There was no indication that M.C. was going to hurt himself or other students. Although Ms. Pollard did not see the interaction between Respondent and M.C., because she was busy helping the students with their assignment, she did hear Respondent yell, "Pick it up!" in a tone loud enough to be heard over the noise of the classroom. At the end of the art class, M.C. pinched another student with ASD, K., in front of Respondent. Respondent responded by instructing K. to pinch M.C. back. Ms. Garcia was only three feet away from Respondent when she heard Respondent say this. K. is a very obedient student. When Respondent told him to pinch M.C. back, K. looked confused, shrugged his shoulders and reluctantly pinched M.C. back. Ms. Garcia was shocked by what she witnessed. She verbally intervened by telling Respondent that she would not tolerate Respondent's behavior in her classroom. Ms. Garcia admonished Respondent that the students should not be taught to retaliate against each other. Respondent just stood silent and stunned during the confrontation. Meanwhile, M.C., upset at K.'s retaliation, ran off and pinched another student, R., who retaliated by repeatedly hitting M.C. back. The situation Respondent created was total chaos. Two children, K. and R., who are otherwise well-behaved, were acting aggressively towards each other. Ms. Garcia then had to physically intervene by separating the fighting children because Respondent just stood by. Ms. Pollard, who had been outside Ms. Garcia's classroom with the rest of the class, began to wonder what was taking the other students so long. When Ms. Pollard peered back into the classroom, the expression on Ms. Garcia's face startled her. Ms. Pollard asked Ms. Garcia what was wrong, to which Ms. Garcia responded, "Do you believe she [Respondent] told K. to hit M.C.?!" Ms. Pollard looked over to Respondent, but Respondent remained silent. Ms. Garcia informed Principal Bello that she witnessed Respondent handle M.C. in an inappropriate manner and that Respondent instructed another student to pinch M.C. in retaliation. Respondent denied these allegations. Ms. Garcia did not have any issues with Respondent prior to Ms. Garcia reporting the incident to Principal Bello. After the incident, Respondent stopped coming into Ms. Garcia's classroom with her students. Respondent's Post-Incident Conduct On September 29, 2014, Mr. Bello issued Respondent a letter, directing her to refrain "from contacting any complainant(s) and/or witnesses, with the intent to interfere with the investigation of the above listed allegation." In November of 2014, M.C.'s mother, S.C., received a telephone call from Respondent on a Saturday night at around 8:00 p.m. Respondent proceeded to tell S.C. that she was going to lose her job and teaching license because of S.C.'s son, M.C. Respondent asked S.C. to have her ex-husband, M.C.'s father, write a letter and backdate it to the first day of school in August 2014. Respondent's call made S.C. feel "extremely horrible" and "guilty." S.C. did not want anyone losing their job because of her son. Subsequently, Respondent repeatedly took advantage of the fact that S.C. picked up M.C. in the classroom to talk to S.C. about the allegations. Respondent cried to S.C., telling her that M.C. had behaved well on the last day of school before the Thanksgiving break because M.C. must have known it would be Respondent's last day as his teacher. Respondent's words and actions towards S.C. made S.C. question why the school was investigating or targeting Respondent and she wanted to ask the school to stop their investigation. The effect that Respondent's words and actions had on S.C. is precisely what Petitioner tries to avoid by issuing standard directives that employees being investigated may not contact witnesses with the intent to interfere with the investigation.1/ Respondent was afforded her employee and due process rights, including the opportunity to file exceptions to the investigative report and request a superintendent's review. At its regularly scheduled meeting on December 10, 2014, the Petitioner took action to suspend Respondent without pay and initiated dismissal proceedings against her. Respondent claims that allegations against her are falsified, that Ms. Garcia was "coached" for reasons Respondent could not articulate, and that her co-teacher, Ms. Stubbs, is out to get her. She also believes "the principal and his agents" conspired against her. Notably, Ms. Stubbs was not the individual who reported the incident. She did not provide a statement in support of the allegations nor did she testify at the final hearing. Respondent could not identify the alleged agents of the principal. Respondent's denial of the allegations and conspiracy theory are identical to the defenses she asserted in response to her prior incident of inappropriately touching a child for which she received a 25-day suspension and probation.2/ Respondent presented no credible evidence in support of these defenses. Respondent also claims that M.C.'s father gave her verbal permission at the beginning of the school year to teach his son "life skills" and put physical limits on his son. The father did not testify, there was no corroboration, and it was denied by S.C. Even assuming this was true, it is implausible that M.C.'s father, or any parent, would envision a scenario in which his child would be pulled to the ground forcibly by his teacher, or another student would be encouraged by a teacher to physically retaliate against his child, to teach "life skills." Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent engaged in misconduct in office, gross insubordination, and violated School Board rules 3210 and 3213.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, including Respondent's prior 25-day suspension for similar conduct (inappropriate physical contact with a student) and the seriousness of these violations, it is RECOMMENDED that the School Board enter a Final Order terminating Respondent's employment. DONE AND ENTERED this 26th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2015.
The Issue The ultimate issue in the instant case is whether Respondent should be administratively reassigned to Petitioner's alternative education/disciplinary program at the Youth Opportunity School-South.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Centennial Middle School is a public school operated by Petitioner. Respondent has been a student at Centennial Middle School since the beginning of the 1987-88 school year. As a student at the school, Respondent has consistently engaged in disruptive conduct that has adversely affected the educational process at the school. On approximately nineteen separate occasions, Respondent has been formally referred to the school administration by one of his teachers for disciplinary reasons. The school administration has made exhaustive efforts to help Respondent improve his behavior, but these efforts have been unsuccessful. The incident that precipitated the decision to remove Respondent from the regular school program at Centennial Middle School occurred on July 19, 1989, while Respondent was attending summer school. On that date Respondent brought to school a weapon in the form of a steak knife that he concealed in his sock the entire school day. He intended to use the knife to defend himself, if necessary, against a group of students with whom he had an ongoing dispute. Pursuant to Petitioner's Code of Student Conduct, students who bring weapons to school are subject to expulsion. On July 20, 1989, upon learning that Respondent had a concealed weapon on his person while on school grounds the previous day, Ted Hennis, Jr., one of the Assistant Principals at Centennial Middle School, suspended Respondent and recommended to the Dade County School Superintendent that Respondent be expelled from the Dade County public school system. In lieu of expulsion, the Superintendent decided to administratively reassign Respondent from Centennial Middle School to the alternative education/disciplinary program at the Youth Opportunity School-South. This decision to reassign Respondent is the subject of the instant controversy.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order approving Douglas Freeman's reassignment to the alternative education/disciplinary program at the Youth Opportunity School-South. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of November, 1989. STUART M. LERNER 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 6th day of November, 1989. COPIES FURNISHED: Stuart M. Gold, Esquire 1570 Madruga Avenue, Suite 211 Coral Gables, Florida 33146 Jewel Harper 11001 Southwest 224th Street Miami, Florida 33170 Madelyn P. Schere, Esquire Assistant Board Attorney 1450 Northeast Second Avenue Miami, Florida 33132 Russell W. Wheatley, Assistant Superintendent Office of Alternative Education 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
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.
