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.
Findings Of Fact Richard L. Gryte holds Florida Teacher's Certificate Number 323641, issued on January 4, 1983, covering the areas of elementary education, early childhood education, emotionally disturbed education and Junior College. Until his resignation on March 13, 1984, Gryte was employed by the Seminole County School Board as a teacher of emotionally handicapped students at the Milwee Middle School located in Longwood, Seminole County, Florida. Gryte was initially hired by Douglas Smith, assistant principal at Milwee, in the summer of 1981, to serve as an emotionally handicapped (herein referred to as EH) resource teacher. This was based on Gryte's prior work history, as well as his educational background; including a master's degree in exceptional education. As a resource teacher, Gryte did not have academic responsibilities, but was used as a counselor who would work with students for a period during the day. These students would be assigned to the resource room by their regular classroom teachers, primarily if they had problems regarding behavior. As a teacher involved with emotionally handicapped students, it was necessary for Gryte to prepare forms known as Individual Educational Plans (hereinafter referred to as IEP's). The IEP's were required by Federal and State law and were necessary in order for the school district to obtain funding. From the beginning of his employment and assignment at Milwee Middle School, Gryte had difficulty performing administrative duties regarding documentation and other paperwork. Gryte recognizes that correct documentation is the responsibility of a good teacher, but also acknowledges his weakness in that area. When this problem was brought to the attention of Douglas Smith, assistant principal, he immediately sent memos and spoke with Gryte regarding the problem. During the 1981-82 year, out of the 22 IEP's necessary for Gryte to complete, at least 12 were incomplete or not done. The IEP's that were done were incomplete in that they lacked objectives, goals and other qualitative methods by which to determine the progress of the child. Even as a resource teacher, Gryte failed to prepare lesson plans which were required of all teachers. In fact, Respondent failed to prepare lesson plans for the entire 1981-82 school term, despite being counseled and informed about the necessity of preparing and submitting lesson plans. Overall, Gryte's teaching performance for the 1981-82 school term was not in keeping with minimum standards required of his profession. In addition to the paperwork and other administrative tasks, Gryte had a problem maintaining classroom discipline and control and would violate school rules by leaving the class unattended. During the 1982-83 school term, Mr. Willie G. Holt became the principal at the school. He first became concerned regarding Gryte's performance because of safety concerns he had for student's in Gryte's resource class. Due to the nature of these children and their behavioral problems, it was a policy of the school that children would not be left alone and unattended. Gryte knew of this policy. During the 1982-83 school year, Gryte would periodically leave his class unattended. On two occasions in the spring of 1983, a female student was involved with and performed sexual acts including masturbation and oral sex in the presence of two male students. These acts occurred when Gryte left his class unattended. Gryte recognized that it was wrong to leave the class unattended, but felt he could trust the boys involved and was only gone for a brief period of time. Due to concern for the safety and welfare of the students entrusted to Gryte and because of a need to relieve the previous self-contained teacher, Mr. Holt, school principal, and Mr. Smith, assistant principal in charge of the exceptional education program, decided to place Gryte in the self-contained EH class for the 1983-84 school year. This was thought to be appropriate since the self-contained class had a full-time aide, Betty Manly, who would always be present in the event Gryte would leave the class unattended. Gryte objected to this assignment, but based on his certification and education, he was qualified to be in the self- contained classroom and he was so assigned. Gryte's teaching performance in the self-contained classroom during the 1983-1984 school term was extremely unsatisfactory in all aspects. As in previous years, Gryte was required to submit weekly lesson plans. This was a requirement of all teachers. As in prior years, Gryte was derelict in preparing his lesson plans. From the beginning of the school term until January, 1984, he submitted lesson plans for the first five weeks, but failed to submit any lesson plans thereafter. He next submitted lesson plans for two weeks during the weeks of January 20 and 27, 1984. Thereafter, he did not submit any additional lesson plans until the date of his resignation in March, 1984. The assistant principals, Gordon Hathaway and Douglas Smith, repeatedly instructed Gryte to submit lesson plans timely, but he failed to do so. Even the lesson plans which were submitted were not proper in that they were too generalized and did not serve the proper function. In addition, for the 1983-84 school term, Gryte still had problems completing his IEP's timely and in a proper manner. It was a concern of the school officials that if they were ever audited, they would lose funding. Gryte was counseled by Dr. Daniel Scinto and Dr. Robert Carlton regarding the preparation of IEP's, as well as class management, but little improvement occurred. Gryte's classroom was extremely noisy, unruly and out of control. Dr. Carlton worked with Gryte on several occasions regarding implementation of behavioral management techniques. However, no improvement was noted. The excessive noise from Gryte's classroom was disturbing to the adjoining classes. Mr. Holt started receiving complaints from other teachers. Mrs. Poole indicated that students in her classroom actually complained about the noise from Respondent's class, as did she. The teacher's aide, Betty Manly, observed that Gryte did not assert control. He allowed the students to do as they pleased and demonstrated an apparent lack of classroom control. Gryte himself recognized that there was an excessive amount of noise in his class which was disturbing to other teachers. Some of the noise was due to Gryte's policy of allowing students to use curse words and engage in verbal altercations, which at times led to physical violence. He would permit the students to use "damn", "hell", and other similar curse words. On occasion, fights would break out among the students because Gryte would allow an argument to become too heated and would not assert control. He thought it was necessary for the children to have the freedom to release their anger in this manner. He ultimately hoped to be able to work with the students and this was part of his counseling therapy. Gryte often imposed corporal punishment as a means of discipline with the students. However, he frequently imposed the punishment in violation of State law and School Board policy. The School Board policy, as set forth in the student disciplinary code, requires that all corporal punishment be administered in the presence of another adult and not administered in the presence of other students. On numerous occasions, Gryte paddled a student in the classroom without the presence of another teacher or administrator as a witness and also while in the presence of other students. This practice was against direct orders of the principal. In addition, students were embarrassed by punishment being administered in front of other children. Further, the practice is not appropriate when dealing with any student, but even less so when dealing with emotionally handicapped students. On one occasion, Gryte lined the entire class up for "licks." The noise of the paddling and the student's yelling brought an adjoining teacher to see what had occurred. When she arrived, a student was lying on the floor and his leg was shaking and the student was grimacing and in pain. The teacher advised Gryte not to administer any more punishment, because it was in violation of the school policy. During the first nine weeks of the 1983-84 school year, Gryte failed to provide grades for the students in his class. He was unable to give grades because students had not performed a sufficient amount of work in order for Gryte to evaluate their progress and to assign a competent grade. This was in violation of the school policy as well as the State law, and was upsetting to the administration. The school was required to send blank report cards, with the exception of P.E. grades. Gryte was told to produce his grade book and test papers which had been performed by the students. A review of the grade book showed tests and work had not been required or performed or recorded in order to evaluate the students. What papers were produced by Gryte were not of sufficient quality or quantity to effectively grade the students. The policy of the school was to assign enough work each week to allow the students to receive periodic grades. Gryte recognizes his duty to maintain paperwork and other documentation. He understands this is part of being a competent and effective teacher, even though he would place greater emphasis on the students. Jeanette Burgess was a female student in Gryte's self- contained classroom his last year at Milwee. Gryte had a propensity to touch Jeanette in an inappropriate and unprofessional manner. He would periodically touch her on her face, ears and buttocks. This was embarrassing to Jeanette. On one evening, Gryte called Jeanette's home to speak with her. Her mother, Diana Oliver, answered the phone and inquired as to the nature of the call. Gryte indicated it was a private matter and he needed to speak with Jeanette personally. This offended the mother and she refused to allow him to speak with her daughter and advised him that any matters pertaining to Jeanette in school should be discussed with her. In addition, in the mother's opinion, Gryte had been drinking. She formed this opinion based on slurred speech and other mannerisms. On another occasion, Betty Manly entered the classroom and discovered Gryte standing extremely close to Jeanette and, in Ms. Manly's opinion, touching Jeanette inappropriately. Jeanette was forced back against Ms. Manly's desk and was obviously embarrassed by the situation. Gryte had dismissed the other students to attend P.E. class and was left in the room alone with Jeanette. The situation was upsetting to Jeanette, because she dropped her head and started crying when she was questioned about what had occurred between Gryte and her. Following the telephone incident, Gryte, the principal, and Jeanette's mother had a conference and Gryte was directed not to administer corporal punishment or otherwise touch Jeanette for any reason. Gryte violated this direct order in that he did subsequently administer corporal punishment to Jeanette. Another student in Gryte's self-contained class was a child by the name of Kelly Owens who had self-destructive tendencies and frequently would injure herself. On one occasion, Gryte sent her to the office alone and on the way, she took a piece of glass and cut her wrist and neck, not severely enough to cause death, but enough to result in extensive bleeding. Gryte had been specifically advised not to leave this child unattended. On one occasion, he gave her a pass to leave the school and go to an area known as the "swamp". This is an area off campus where students gather to smoke marijuana and allegedly participate in other similar activities. This occurred after a conference with the child's parents which Gryte attended and in which it was emphasized that the child needed close supervision. On another occasion, Gryte actually left the child in the classroom asleep. This was at the end of the school day. Another teacher came by and found the child sleeping in the class by herself. Gryte indicated he was unaware that Kelly was still in the classroom. In addition to the incident involving the telephone conversation with Jeanette Burgess' mother, Gryte appeared at an open house held on the school campus in the beginning of the 1983-84 school term. It was apparent that Gryte had been drinking. Those teachers present were definitely under the·impression that he had been drinking too much due to his slurred speech and demeanor. When confronted by Mr. Holt, Gryte admitted he had been drinking, but stated he only had one drink prior to the meeting. Based on Gryte's conduct and performance at Milwee, the principal and assistant principal felt he was neither effective nor competent and would not employ Respondent in a teaching position. Respondent recognizes he is not qualified and competent to teach certain areas of his certification. He basically desires to be a counselor and not a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order revoking the teaching certificate of Richard L. Gryte for a period of three years, subject to reinstatement thereafter pursuant to Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: L.Haldane Taylor, Esquire 331 East Union Street Jacksonville, Florida 32202 Richard L. Gryte 7703 Meadowglen Drive Orlando, Florida 32810 Karen B. Wilde Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 Ms. Marlene Greenfield, Administrator Professional Practice Service 319 West Madison Street, Room 3 Tallahassee, Florida 32301 APPENDIX The following constitutes any specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Petitioner's Proposed Findings of Fact 1-31 are all adopted in substance. Rulings on Proposed Findings of Fact of Respondent Respondent filed no Proposed Findings of Fact.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 27th day of January, 2010.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner/Agency has established by preponderant evidence that there was just cause to dismiss Sakina A. Jones, the Respondent, for alleged misconduct in relation to her teaching of students in alleged violation of Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact The Petitioner is the Duval County Florida School District or "School Board" charged with regulating the practice standards for teachers and the manner of practice of teachers who are employed by it in the Duval County School District system. The Respondent is licensed to teach in Florida, holding Florida Educator Certificate No. 831562, effective from July 1, 2000 through June 30, 2002. The Respondent has a Bachelor's Degree in Psychology received on December 11, 1998. She has worked as a substitute teacher for the Duval County School District between approximately September 4, 1998 and August 9, 2000, after which time she became a full-time elementary teacher at Annie R. Morgan Elementary School. The Respondent has a Bachelor's Degree in Psychology. Her training and experience in the field of education beyond college, at which she had no academic training as an educator, at the point she commenced her second year of teaching at Annie R. Morgan Elementary School, in August 2002, included the following: substitute teaching experience at elementary schools. teaching ESE students at DuPont Middle School as a substitute teacher. participation in the Teacher Induction Program during the 2000-2001 school year while full time teaching at Annie R. Morgan Elementary School. having a designated mentor (Mrs. Shipley) from whom to seek guidance. completion of a college level introduction to education course while teaching full time during the 2000-2001 school year. completion of a course in "Teaching Diverse Populations" in the summer of 2001. receiving a book called "Positive Discipline." attending a faculty meeting on classroom discipline which focused on steps that could be taken in the classroom before sending a child to the principal's office. The Respondent had no training in the specifics of teaching and disciplining either ESE students or the educable mentally handicapped (EMH) students which she was teaching at times pertinent to this case. The Teachers' Induction Program in which Ms. Jones participated during the 2000-2001 school year is a program for new teachers in the District which includes assessments involving at least two classroom visits a week. Six "domains" are covered in the program including classroom management, instructional planning and testing, some of which are presented in a workshop format. The program requires a year to complete, at the end of which the principal must assess whether a new teacher has passed or failed in her participation in the program. For the 2000-2001 school year Ms. Jones accepted a position as a full-time, third grade teacher at the Annie R. Morgan Elementary School. The principal that year was Delores Milton. After about five weeks, Ms. Jones was shifted to an ESE class, an area in which she had no training. Later that year she was assigned to an EMH class which she was even less qualified to handle in terms of having any specific training in teaching and disciplining EMH students. Ms. Jones, indeed, had serious reservations about taking the EMH job because of her lack of training or experience with EMH children and she related this to her principal and they had a discussion about it. Ultimately, the principal assured her that she could go to workshops and in other ways get additional training and so Ms. Jones accepted the position because it would guarantee her a position so that she would not be on the "surplus list" (being first subject to lay-offs). Carolyn F. Davis was assigned as Principal at Annie R. Morgan Elementary School on July 1, 2001, replacing Ms. Milton. Ms. Jones' EMH teaching assignment continued into the new 2001- 2002 school year. Her class included twelve boys and two girls ranging in advancement from grade one to grade three. A teacher's assistant was assigned to her on a full time basis. The teacher's assistant, at the beginning of the year, was Tiffany Bullard. Ms. Bullard had been working with Ms. Jones as a teaching assistant the prior school year from approximately November 2000 through the end of the school year in May 2001. That had been her first experience as a teacher's assistant. Due to budgetary cuts, Ms. Bullard was "surplused" (laid-off) on September 4, 2001. Several months later she was re-hired at a different school. A second teacher's assistant worked with Ms. Jones in her classroom after Ms. Bullard departed. This was Arnette Felton. Ms. Felton had a year's prior experience as a teacher's assistant at an elementary school as well as a prior year of such experience at Annie R. Morgan Elementary School. She worked with Ms. Jones from September 5, through October 16, 2001. She asked to be relieved when she claimed that Ms. Jones threw a bottle of "white-out" at a student who ducked, such that the bottle hit Ms. Felton. The totality of the credible testimony reveals that this incident did not happen at, least in that fashion, as Ms. Jones never intentionally threw a bottle of white-out at anyone. In reality, there appears to have been some personal friction between Ms. Felton and Ms. Jones which helped to cause Ms. Felton's departure. Ms. Jones' third teacher's assistant was Brenda Medlock. Ms. Medlock has approximately one year and a half of college and had been serving as a teacher's assistant for ten years in the Duval County School system. She remained with Ms. Jones until Ms. Jones was removed from her teaching duties on or about November 19, 2001. Ms. Medlock had no prior experience with EMH students although she had worked with ESE students and had some training of unknown amount and duration in behavior management while working as a teacher's assistant at a prior school. The EMH students in Ms. Jones class were all students with below average I.Q. who function at grade levels significantly below the norm for their age. Their I.Q. range was from 49 to 69. Greater patience is required in disciplining and instructing EMH students. Relevant federal law protects them from being disciplined for reasons of their disability. In all instances with respect to such students, a determination has to be made concerning whether the conduct for which discipline is about to be meted out is a manifestation of the disability, and if so, there can be no discipline. Some of the students had limited communication skills and difficulties with memory and Ms. Jones was aware of this information concerning her students upon getting to know them. Students with a low I.Q., such as Ms. Jones' students, should not appropriately be made to write sentences repetitively as a disciplinary measure. This is because they would typically not understand and cannot practicably execute the requirement. Upon learning that Ms. Jones had made students write sentences repetitively as a disciplinary measure, Principal Carolyn Davis instructed her not to use this form of discipline at a conference the two had on October 23, 2001. Student Raymond Houston testified. He was placed in the bathroom, which was in the classroom, a number of times for a few minutes as "time out" when he misbehaved. Although the light in the bathroom may have been turned off when this occurred, no one prevented any student, being placed in the bathroom as "time out," from turning the light on. Raymond Houston (R.H.) also stated that he and several other students had to do the "duck walk" or "jumping jacks" as discipline for misbehavior on a number of occasions. He was also required to write sentences such as "I will be good" or "I will pay attention" when he had misbehaved. The teacher's assistant, Ms. Bullard, confirmed that the Respondent had placed children into the classroom bathroom for "time outs." The totality of the credible testimony reveals, however, that these sessions lasted only from three to five minutes and no student had been placed in the bathroom as long as an hour or a half-day or anything of that nature. Ms. Jones also made certain male students do pushups for disciplinary reasons, such as R.H. and T.S. In this connection, some of the calisthenics her students performed were done as part of a fitness program she instilled in her daily lesson plan, including the exercise regimen known as "Tae Bo." Most occasions, when students did exercises such as pushups, were not for disciplinary reasons. Student R.H. also was required by the Respondent to wash at the lavatory and put on a clean shirt, which she had in the classroom to give him. This was because he had not bathed in several days and had a bad odor. While some other students may have observed this, it was done for hygiene reasons and was not done in order to berate the student or expose him to unnecessary embarrassment. During the 2001-2002 school year on one occasion, student "Shaquille's" book bag was taken from him by the Respondent and she put it in a trashcan. This was not a trashcan used for refuse or garbage, however, it was simply a trashcan type receptacle where she would keep students' book bags when they did not need them or when they were not supposed to be in possession of them. Ms. Jones also instituted a system which permitted the children to go to the bathroom three times per day. This system was implemented by having the students use tokens, three apiece, which they could use when they needed to go to the bathroom. This was done to help instill order in the classroom. However, those students who were unable, for various reasons, to comply with this bathroom schedule were allowed to go on an as-needed basis. In any event, the three-bathroom-visits policy was ended by the Respondent one month into that school year. All students at the Annie R. Morgan Elementary School receive a free breakfast every morning, at the beginning of the school day. Breakfast is provided in the classrooms to the students at their desks. Ms. Jones had a rigid five-minute time limit, enforced by a timer, during which the children were to eat their breakfast. She would have the students start in unison (those that were present) and when the timer rang after five minutes, she would make the children discard any portion of breakfast not eaten. Ms. Jones was not aware that there was any prohibition against the five-minute time limit for eating breakfast and for discarding unused food. After being instructed by her principal, at their meeting of October 23, 2001, that the students should be allowed fifteen minutes for breakfast, the Respondent complied. The only exception to this, established in the record, was when student James Brown arrived at school late and missed breakfast. This, however, was involved with an agreement the Respondent had with James Brown's mother, who had informed Ms. Jones that if he were late she could assume that he had already had breakfast, because his mother would ensure that he had already breakfast. The denial of his breakfast, on the day in question, was not due to any cruelty or other violation of the rules referenced herein, but rather because she knew that his mother would have already given him breakfast on that day when he was late. Although the Respondent was accused by witness Arnette Felton of throwing objects in the classroom at students, including pencils, chalk, an eraser and a white-out bottle, the preponderant, credible testimony indicates otherwise. Although the Respondent acknowledged tossing snacks, candy, chalk or pencils to students for them to use during the course of their classroom activities, she never purposely and forcefully threw any object at students in anger or as a misguided disciplinary measure or anything of the sort. Further, although as a classroom management technique the Respondent placed students in time-out in the restroom for a few minutes when she felt it necessary to restore order and decorum in the classroom, she never instructed her assistant to forcibly hold the bathroom door shut to "lock-in" a student for disciplinary reasons. Ms. Felton maintained that she observed Kenny Brown come to Ms. Jones' desk, when told not to, so that Ms. Jones, in anger, threw his book bag in the trash, took his folder out of the book bag and threw it in the sink, getting it wet. The most credible testimony does not support that assertion. It is determined this incident did not occur in this fashion. Rather, Ms. Jones, at most, took student K.B.'s book bag from him and placed it in the receptacle for holding book bags, which happened to be in the form of a trashcan, but which was not used as a trash or garbage can, as found in the other instance referenced above. It is true that Ms. Jones criticized Ms. Felton when she was unable to change a CD disc, calling her a "dummy." This was not done in a way that the other persons or students present in the classroom could hear, however. It is also true that Ms. Jones and Mr. Felton got into a verbal altercation in the classroom for which the Respondent, Ms. Jones, received a reprimand from the principal, Ms. Davis, for engaging in an argument in front of the students. Teacher's assistant Brenda Medlock succeeded Ms. Felton as the teaching assistant for the Respondent. She observed James Brown arrive at school, missing breakfast, on October 29, 2001, which has been discussed above. Withholding breakfast may have been contrary to the principal's instruction, but in this regard it was done for a justifiable reason because, due to the understanding with the student's mother, Ms. Jones knew that he had already had breakfast when he got to school that day when he arrived at school late. Ms. Medlock also observed, on October 29, 2001, that, after the students were disruptive, the Respondent put a sentence on the board, "I will pay attention," and required all of the students to write that sentence repetitively for approximately fifteen to twenty-five minutes. Some of the students had the ability to write the sentence only a few times or only once. This episode was in violation of instructions given by the principal at the meeting she had with the Respondent on October 23, 2001. The principal had a conference with Ms. Jones on October 23, 2001, in which Ms. Jones admitted that she had placed students in the bathroom for time-out for disciplinary purposes and that she had given children only five minutes in which to eat breakfast. She was informed that fifteen minutes were allowed for eating breakfast and she was directed not to use the bathroom for time-out disciplinary purposes anymore. She refrained from doing so thereafter. She was also directed not to withhold food from a child which she complied with thereafter, with the exception of the James Brown breakfast episode, which was adequately explained by the Respondent to not involve any disciplinary or disparagement reason for its occurrence. Ms. Jones did, as found above, violate the instruction from Ms. Davis about not requiring students to write sentences repetitively, as a disciplinary measure, by the incident she caused on October 29, 2001, found above. In summary, it is significant that the only sources of factual information are the testimony of the teacher's assistants who were assigned to the Respondent during the 2001- 2002 school year. An analysis of their testimony shows that none of them had any affection for the Respondent and it appears from examination of their testimony, and the Respondent's testimony, that each had specific reasons for harboring resentment or animosity toward the Respondent. Their attitudes towards the Respondent appeared less than friendly, so that their testimony, taken together, with the instances of admissions by the Respondent show that some of the situations described happened, but did not happen in the heinous way described in the testimony of the teacher's assistants Ms. Felton and Ms. Medlock. Although some of these situations, which occurred as part of the Respondent's attempt to properly deal with her classroom environment, may have justifiably resulted in criticism of the Respondent, the statement of the Petitioner's own witnesses show that there was no formal standard and no formal definition of acceptable versus unacceptable conduct imparted to the Respondent before she embarked on her duties with this EMH class. The Petitioner's representatives acknowledge that there was no advance training or instruction given to the Respondent. The Respondent was required to seek assistance and additional training largely on her own initiative with little support from the school administration. Consequently, as the Respondent attempted to develop techniques for the management of her classroom and for the instruction of her students, numerous events occurred that were later deemed inappropriate, although she had not been instructed in advance that they were inappropriate. Some of these occurrences or events were due to poor judgment on her part as well, and the resentment occasioned in her teacher's assistants or "para-professionals" was probably partly the result of her own failure to adequately control her temper on occasions. However, the fact remains that as soon as the Respondent was notified of any perceived inappropriate behavior, or classroom or student management techniques, she modified her conduct or techniques accordingly, so as to comply with those instructions. The only time she continued behavior that had been deemed unacceptable by the principal concerned the subject of the breakfast of one student, for whom she had a specific instruction from the student's parent that the student did not need to have breakfast when he arrived late, because he would already have had breakfast. The other occasion of continued behavior that was unacceptable was the single, October 29, 2001, requirement of students to write repetitive sentences, which was directly contrary to the instructions she received from the principal on October 23, 2001. Since the only complaints were made to the administration by the paraprofessionals and the investigation therefore concentrated on those individual's statements, there is no substantial, credible evidence that the Respondent's actions rose to the level of intentional embarrassment or disparagement of students or otherwise constituted a breach of the Code of Ethics for educators, as embodied in the rules on which the Respondent's termination was based. Although the Respondent's actions were mis-directed in several instances and constituted exhibitions of poor judgment on some occasions, they have not risen to the level of a violation of the ethical requirements imposed on teachers.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Duval County compensating the Respondent for the salary and benefits to which she is entitled from the date of her termination of employment (suspension without pay) forward to the end of the 2001-2002 School Year. DONE AND ENTERED this 14th day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of November, 2002. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Ernst D. Mueller, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent has been licensed in the fields of elementary education and exceptional student education. Her Florida education certificate number is 840291. Her certificate expires on June 30, 2010. Respondent was employed by the Bradford County School District from 1994 to 1996, from 1998 to 2001, and finally from 2004 to 2007. She has worked as a substitute teacher, a parent specialist, and a teacher of varying exceptionalities. At the time of the events alleged in the Administrative Complaint, Respondent was the principal and teacher at Believer's School of Learning (Believer's School) in Bradford County School District. Believer's School was a charter school, for grades K-3, meant to give alternatives to traditional public school. Charter schools fulfill various purposes such as improving student learning and increasing learning opportunities. With respect to the Believer's School, a special emphasis was placed on low- performing students and reading. An "exceptional student" is defined by Section 1003.01(3)(a), Florida Statutes, as: ny student who has been determined eligible for a special program in accordance with rules of the State Board of Education. The term includes students who are gifted and students with disabilities who have an intellectual disability; autism spectrum disorder; a speech impairment; a language impairment; an orthopedic impairment; an other health impairment; traumatic brain injury; a visual impairment; an emotional or behavioral disability; or a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; students who are deaf or hard of hearing or dual sensory impaired; students who are hospitalized or homebound; children with developmental delays ages birth through 5 years, or children, ages birth through 2 years, with established conditions that are identified in State Board of Education rules pursuant to s. 1003.21(1)(e). Respondent had Exceptional Student Education (ESE) students in her school. Believer’s School was required to follow federal and state guidelines with respect to ESE students. Those requirements include keeping complete, current and accurate records with respect to exceptional education students. These recordkeeping requirements are required by federal and state law and are necessary for the school system of Bradford County, of which Believer's School was a part, to remain eligible for federal and state funds allocated to pay costs associated with educating exceptional students. In accordance with Florida Administrative Code Rule 6A- 6.03028(3), Respondent was required to prepare an Individual Education Plan (IEP) for each ESE student attending Believer's school. Rule 6A-6.03028(3) states: (3) IEP Requirements. An IEP or individual family support plan (IFSP) must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. An IEP is necessary to evaluate the student's educational level, to establish short and long-term educational objectives, to develop alternative ways to accomplish those objectives, and to record the progress of the plan and establish a means for review of the student's educational progress. The proper preparation and maintenance of an IEP is a basic responsibility of the Respondent for exceptional education students at Believer's School. An improperly prepared IEP is potentially harmful to the learning of an ESE student because services and accommodations must be listed on the student's IEP before they can be provided. IEP’s are created by an IEP Team during a meeting involving the parties as set out in Florida Administrative Code Rule 6A-6.03028(3)(c) as follows: (c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include: The parents of the student; Not less than one (1) regular education teacher of a student with a disability... Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student; A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. . . An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., or (3)(c)4., of this rule;. . . Upon completion, the IEP is signed by the regular education teacher, the ESE teacher, the local education agency (LEA), and the parent or guardian of the student. The LEA is ultimately responsible for what goes into the IEP. If something is in the IEP it is because the LEA determined that it was feasible to carry out. The ESE teacher examines the psycho-educational reports and the specialized needs of the student. He or she often provides strategies to the regular education teacher to use with the ESE student. The regular education teacher is the most familiar with the curriculum being used for the student’s grade level. He or she provides insight as to how that curriculum can be adapted for the ESE student. Members of the IEP Team for an ESE student are supposed to be teachers and individuals associated with the student’s current grade level and involved in the student's education, in order to provide accurate curriculum and services for the student. The IEP Team is supposed to review the child’s test scores or have access to the child, know about the curriculum being used, and what types of accommodations an ESE student of the particular grade level would need. By signing the IEP, the individual team members are stating they met to discuss the ESE student, to develop goals and objectives and services for the student, and that they will follow up on making sure those goals and objectives are met. IEP's are updated on an annual basis. The annual IEP conference is mandatory, and failure to provide such a conference is a violation of federal, state, and School Board rules and policies. Failure to hold such a conference deprives the parents of the exceptional student any meaningful participation in determining the student's educational goals and may deprive the child of the assistance to which he or she is entitled. It also jeopardizes continued state and federal funding of the School Board's exceptional education program. Respondent was instructed, as were other teachers of exceptional students in the school district, that every IEP must be reviewed at least once a year through an annual IEP conference. Respondent was trained in how to prepare IEPs by the Bradford County School District on July 19, 20, and 21, 2005. Florida Administrative Code Rule 6A-6.03028(3)(b) requires that the school notify parents of an ESE student that an IEP meeting is scheduled prior to the IEP Team Meeting taking place. This notification is more than a formality; it is meant to insure meaningful participation by parents or guardians in the IEP process. Rule 6A-6.03028(3)(b) states as follows: (b) Parental participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following: Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and Scheduling the meeting at a mutually agreed on time and place. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. . . . * * * A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents’ home or place of employment and the results of those visits. To comply with Rule 6A-6.03028(3)(b), it is Bradford County School District’s policy to send out a Parent Notification Form 10 days prior to an IEP team meeting. A few days after the first notification was sent, a second notification is sent to the parent. After the two written notifications are sent, a phone call is made to the parent of the ESE student. Student S.B. began school in the Bradford County School District when she was in pre-K. She was identified as a student with developmental disabilities. In 2005, she was living in Richmond, Virginia, and found to be eligible for exceptional education services as a student with a developmental disability. Upon return to Florida, S.B. was enrolled in Southside Elementary on March 17, 2005. In May 2005, an IEP team met, determined that S.B. was a student with specific learning disabilities, and developed an IEP outlining the services required for S.B. Without those services, S.B. would not receive a free appropriate public education as contemplated under the Individuals with Disabilities Education Act (IDEA), or Florida law regarding the provision of exceptional education. IEPs for exceptional education students are required to be completed every year before the prior year’s IEP expires. S.B.’s next IEP was due on May 17, 2006. On February 13, 2006, S.B. enrolled in Respondent’s charter school, Believer's School of Learning, approximately three months before S.B.’s next IEP was due. There was apparently some delay in providing S.B.'s May 2005 IEP to Respondent, but the length of the delay is unclear. In order for a school district to receive the extra funding for its ESE students all the ESE students’ IEP’s must be current by "FTE week." FTE week is when the schools determine a final head count of all the students that are in attendance. The FTE week for Bradford County School District in 2006 was October 13, 2006. All the ESE students within the school district had to have their IEPs in by that date or the schools would not receive the extra funding associated with that student. If S.B.’s IEP was not turned in before October 13, 2006, Believer's School would have only received its normal funding only instead of the additional ESE funding. As of the last week of September 2006, Respondent had not completed the IEP for S.B. In late September, Respondent called Verdell Long, and asked for some assistance in preparing an IEP for a third grader. On September 28, 2006, Respondent met with Verdell Long, at Bradford County High School, during Ms. Long’s lunch break, for assistance with preparing an IEP for a third grader at her charter school. Verdell Long was a high school teacher at Bradford County High School who had worked with ESE students, with a focus on mental retardation from grades K-12. She had assisted Respondent with IEPs in the past. She understood that she was assisting with a “sample” IEP to be used as a model. However, it was Respondent’s intention to use the product created as an IEP for the student S.B. The day of the meeting Verdell Long’s computer was not working so she could not access the IEPs she had on file. She asked another high school teacher, Dr. Vivian Haynes to assist in the meeting. Dr. Haynes was an ESE teacher at Bradford County High School in September 2006. She was very experienced with preparing and writing IEPs, having just completed a doctoral dissertation which included copies of third and fifth grade IEPs. Dr. Haynes had not previously met Respondent. Dr. Haynes brought several blank “dummy” IEPs with her to the meeting in order to have examples to show Respondent. The IEP prepared at the meeting included the various components of an IEP, such as the measurable goals and objectives for a third grader, but did not include the demographic information on any student. The document prepared at the meeting did not have a student’s name or test scores on it anywhere. Respondent did not bring the student S.B. or her test scores with her to the meeting. However, neither Ms. Long nor Dr. Haynes expected to see individualized information because they did not understand that an IEP for an actual child was being prepared. Verdell Long signed the IEP as the ESE teacher, Dr. Vivian Haynes signed as the LEA, and Respondent signed as the regular education teacher. Neither Verdell Long nor Dr. Vivian Haynes was contracted with Believer's School by the Bradford County School District to provide services as an LEA representative or an ESE teacher. Both Verdell Long and Dr. Vivian Haynes believed the purpose of the meeting was to construct a model IEP in order to assist Respondent with properly preparing an IEP for an ESE student. Neither expected the document created at their meeting to be submitted as an actual IEP for S.B., or any other student, and neither considered the meeting to be an IEP team meeting. Neither Verdell Long nor Dr. Vivian Haynes was shown a Parent Notification Form indicating that their meeting was to be an IEP team meeting. Neither would have signed the IEP if they had seen such a form because they did not believe that an IEP team meeting was being conducted. After the meeting on September 28, 2006, Respondent took the IEP form prepared with the help of Ms. Long and Dr. Haynes, and inserted information specific to S.B. She then submitted the form as S.B.’s IEP and turned in to the Bradford County School District. Submitted with the IEP form was a document which purported to be the Notification of Meeting Form for the IEP team meeting. Only one notification is referenced. The form was dated September 15, 2006, and identified Dr. Vivian Haynes and Verdell Long as participants in the meeting, notwithstanding Respondent's acknowledgement that she did not meet Dr. Haynes until September 28, 2006, and did not know until that time that Dr. Haynes would be participating in the meeting. The form also indicated that the IEP meeting would take place at the Believer's School, as opposed to the Bradford County High School, where the meeting between Respondent, Ms. Long and Dr. Haynes took place. There is no other indication of other attempts of notification. The signature line reserved for a parent or legal guardian is signed by a Rudolph Williams and dated September 29, 2006, the day after the meeting took place. Respondent claims that Mr. Williams is S.B.'s stepfather. However, there is nothing in the Bradford County School District's records to indicate that Mr. Williams is a parent or legal guardian of S.B., and school district officials were not aware of anyone by that name living in the home. By her own admission, Respondent did not keep "official records" for any of her students, including ESE students. She was not particularly concerned with who signed the IEP, because she apparently considered it to be simply a matter of paperwork to be filed with the School District. In her view, the person responsible for ensuring that a child is receiving the appropriate education is her teacher, regardless of the directives in the IEP. She felt that some of the things identified as required simply could not be done at a school her size. She did not consider the role of the LEA and the ESE teacher on the IEP to be all that important. To her, the real responsibility for the child's education lay with the teacher who worked with her on a daily basis. S.B. was later withdrawn from Believer's School and now attends Starke Elementary School. Believer's School has since closed and is no longer operating as a charter school.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts Two through Seven and dismissing Count One of the Administrative Complaint; imposing a fine of $500; suspending her certificate for one year and placing Respondent on probation for a period of three years. DONE AND ENTERED this 22nd day of October, 2009, 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 22nd day of October, 2009.
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract dated May 8, 2012.
Findings Of Fact The Duval County School Board is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Mr. Kristopher J. Hunter has been employed by the Duval County School Board as an Exceptional Student Education (ESE) teacher since 2006. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act) and the Collective Bargaining Agreement between Duval Teachers United and the School Board for 2009-2011. At the time of the events at issue in this proceeding, Mr. Hunter was assigned to Arlington Middle School. Mr. Hunter was born in Florida in 1977. He attended college at the University of Virginia, graduating in three years with a degree in Geography. He played professional basketball for about six years. He then returned to school and received a teaching degree from the University of North Florida. He began teaching at Arlington Middle School in the Duval County School District in 2006. He was teaching as an ESE teacher, successfully working with children with a range of cognitive and physical disabilities integrated into the least restrictive environment, that is, the regular school classroom environment. At the beginning of the 2011-2012 school year, Mr. Hunter was assigned to a classroom in the Day Treatment Program (DTP). The DTP is the most restrictive environment offered at Arlington Middle School for ESE students. The program is housed in a separate building at the back of the school, and has five teachers and 22 students. The students assigned to DTP are those with the most severe emotional and behavioral disorders, and Mr. Hunter's previous ESE experience did not include working with students of this type. Although his ESE qualification covered working with these students, Mr. Hunter felt unprepared. The DTP teachers have access to an "intervention room" and four "time out" rooms contained within the intervention room if it becomes necessary to remove a student from their classroom because of a high magnitude disruption. The teacher can call, and staff from the intervention room will respond to help remove the disruptive student. Mr. Gary Mericle is the Site Director for DTP, responsible for the overall administration of the program. He has taught Physical Education for about 12 years and is also the Athletic Director. He is not ESE certified, but has administered the DTP for three years. Mr. Mericle is trained in Professional Crisis Management (PCM), including the use of three techniques designed to gain control of a disruptive student in a safe, efficient, and secure manner to minimize danger to the student and others. The "wrist–triceps" hold is the simplest method to obtain basic physical control over a student; the "Sunday stroll" technique is a bit more secure; while the "bar procedure" is the most difficult to effect, but results in the student being immobilized in a prone position, and so is appropriate for the most violent situations. Each ESE teacher in DTP has a para-professional assistant in their classroom. Ms. Edna Lee is assigned as Mr. Hunter's assistant. Ms. Lee has 14 years of experience in ESE and has been working with the most severely disabled students for the last six or seven years. She has experienced highly disruptive behavior and violence on numerous occasions and has been trained in PCM. R.J. is an ESE student who was transferred into DTP at Arlington prior to the Christmas break. His behavior is erratic and unpredictable. R.J. is calm some days, but at other times he engages in violent behaviors, throwing any items within his reach in a room. Mr. Hunter was aware of these behaviors in R.J., but had never experienced them in his own classroom, although R.J. did "act out" in other ways "every single day." Sometime after the Christmas school break, Mr. Hunter was trained in the PCM techniques described above for the first time. Training for the school personnel had been staggered so that everyone would not be away from their duties at the same time. After his training and before the incident involving R.J. which led to this proceeding, Mr. Hunter had had occasion to use both the "wrist-triceps" and "Sunday stroll" techniques. Mr. Mericle was aware that Mr. Hunter had completed this training and had seen Mr. Hunter employ those tactics to manage disorderly students. In the early afternoon of April 2, 2012, R.J., who had been released from a voluntary "time out" in the intervention room, entered Mr. Hunter's classroom through the door at the lower-right corner1/ of the room. When he entered, Mr. Hunter was seated at his desk in the upper-left corner of the classroom, diagonally across from the door through which R.J. entered. Ms. Lee was seated at her desk in the upper-right corner of the room straight ahead of R.J. In the middle of the room were nine student desks, arrayed roughly in a square formation. Ms. Lee testified that as soon as R.J. entered the room, she could see that he was in an agitated state. Another student may have been in the room when R.J. first entered, but immediately left,2/ leaving only Mr. Hunter, Ms. Lee and R.J. in the classroom. R.J. began walking toward Ms. Lee, going to a computer set up on a table against the right hand wall. When he was unable to sign on at the computer because it was locked, he became even more upset, cursing and kicking the chair. Ms. Lee asked R.J. what was wrong, but he did not respond. He grabbed a fistful of pens or pencils and began to throw them. Mr. Hunter asked him to stop, and when he did not, Mr. Hunter warned him that he would have to call intervention. R.J.'s behavior continued, and Mr. Hunter used his walkie-talkie to call Mr. Mericle in intervention and asked him to come to the classroom. Mr. Mericle immediately responded to the call. There was no physical contact between Mr. Hunter and R.J. prior to the time Mr. Mericle entered the room. When Mr. Mericle entered, R.J. was out of control, throwing pencils, books, and other items. Mr. Hunter and Ms. Lee were still at their desks. After observing R.J. for only a moment, Mr. Mericle concluded that his behavior constituted a high magnitude disruption, and that R.J. needed to be escorted back to intervention. At this time R.J. was moving generally in a counter-clockwise direction around the room, on the outside of the student desks. He had been throwing pencils at the window above Mr. Hunter's desk, and some of these pencils had bounced off the windows and had hit Mr. Hunter. Mr. Mericle had responded alone because they were short-handed in intervention. Mr. Mericle went to Mr. Hunter's desk and asked for his help to restrain R.J. Mr. Mericle had dealt with R.J. before under similar circumstances and believed that R.J. could be restrained fairly easily with the "wrist- triceps" hold, in which two people approach the disruptive student from each side, securing the student's wrist with their outside hand and placing their inside hand on the underside of the student's upper arm. R.J. was of slight build, about five feet, eight inches tall, and weighing about 140 pounds. Mr. Hunter is a big man, about six feet, 10 inches tall, and weighing about 290 pounds. Mr. Mericle believed that R.J. could easily be restrained. R.J. was continuing his counter-clockwise walk around the room, now going down the left side of the room opposite the computers, and turning onto the base wall of the room which contained the door where he had originally entered. As he reached the counter against this base wall, he began to run his arm across the top of it, scraping all of the items that were sitting on the counter off onto the floor. He picked up a soap dispenser and threw it. Mr. Mericle and Mr. Hunter were approaching him from behind, and caught up with him as he was about ten feet away from the wall containing the computers, when R.J. was almost back to the point at which he had first entered the room. Just as Mr. Mericle was about to draw even with R.J. on R.J's left side and was reaching for his left arm, R.J. shot forward at a high rate of speed, slammed into the wall straight in front of him, and then slid down and collapsed to the floor. Ms. Lee testified that Mr. Hunter, who had been approaching R.J. from behind on R.J.'s right side, had raised his right foot and shoved it into R.J.'s lower back, propelling R.J. into the wall. Ms. Lee testified that while R.J. had been propelled into the wall from the push, that she believed R.J. was exaggerating the effect of the push, because the effect on R.J. was overdone, like "bad acting." Mr. Hunter then quickly followed R.J., picked him up off the floor by his shirt or shoulders, lifted him completely off of the floor, shook him, and slammed his back against the wall with R.J.'s face held above Mr. Hunter's head. Mr. Mericle said that he heard R.J.'s head hit the wall behind him. Ms. Lee stated that Mr. Hunter said to R.J. in a loud voice, "You can't come in my room doing this." When Mr. Hunter released him, R.J. dropped to the floor, and then got up and left the room. Mr. Mericle went after R.J., saying, "I've got him, I've got him." Ms. Lee testified that she found Mr. Hunter's actions to be "very shocking." Mr. Mericle followed R.J., who went to the front of the school. The School Resource Officer (SRO) was there and Mr. Mericle told the SRO what had happened before continuing his pursuit. Mr. Mericle caught up with R.J. on the softball field. He asked R.J. to return to the DTP building with him. R.J. went calmly, without any use of PCM. R.J. was subsequently transported by Jacksonville Fire Rescue to Shands Medical Center. There was no evidence at hearing of any serious injury. Mr. Hunter's version of events was slightly different. He testified that he stuck his foot out and that R.J. tripped. He stated that R.J. was holding a pencil like a knife in a threatening manner, and that this was the reason Mr. Hunter then grabbed R.J. and lifted him up against the wall. Mr. Hunter said that R.J. calmed down when he was lifted off of the floor and that Mr. Hunter then lowered R.J. back to the floor. Mr. Hunter testified that he never intended to harm R.J. and that he was just trying to get control of the situation. Mr. Hunter testified that R.J. could have hurt anyone in the room or even himself. Mr. Hunter admitted that his actions, even as he had described them, were not appropriate. Ms. Lee was a credible witness whose demeanor suggested that she did not wish to cause Mr. Hunter trouble. She relayed the facts as she saw them, while giving every benefit to Mr. Hunter in her own interpretation of those facts. Her testimony that Mr. Hunter kicked R.J. into the wall is credited. Ms. Lee's conclusion that Mr. Hunter "didn't lose control, but was only trying to get R.J.'s attention" seems quite charitable, however. In any event, it is not acceptable to kick students or lift them off the ground and slam them against a wall to "get their attention." Mr. Hunter's suggestion that his actions were motivated in part by defensive or safety concerns because R.J. was wielding a pencil is discredited. Neither Ms. Lee nor Mr. Mericle, both of whom were closely watching R.J., saw a pencil displayed in a threatening manner. Even if a pencil had been wielded as a weapon, the response was completely inappropriate. At all relevant times during this incident, there were three PCM trained adults in the room with a single ESE middle school student. Mr. Hunter did not cooperate with Mr. Mericle's efforts to use approved techniques. Shoving a student or picking him up and slamming him against a wall are inconsistent with the sanctioned procedures designed to defuse high magnitude disruptions in a safe and secure fashion. Mr. Hunter, provoked by R.J.'s behaviors, used physical force against R.J. in frustration and anger. Mr. Hunter did not intend to physically hurt R.J., but acted inappropriately to get R.J. under control. Ms. Sonita Young is the Chief Human Resources Officer for Duval County Schools. In determining the appropriate action to recommend to the Superintendent in this case, Ms. Young considered the progressive discipline policy reflected in the Collective Bargaining Agreement. Ms. Young testified that she discussed the matter with others, and that she concluded that termination was appropriate even though Mr. Hunter had not had the various steps of progressive discipline imposed on him earlier, because of the severe behavior in this incident. On May 8, 2012, a Notice of Termination of Employment Contract and Immediate Suspension Without Pay was sent to Mr. Hunter. On May 9, 2012, Mr. Hunter was arrested on felony child abuse charges based on the incident. Subsequently, on or about June 15, 2012, Mr. Hunter voluntarily entered and was accepted into a pretrial diversionary program in regard to his May 9, 2012, arrest. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that Duval County School Board policies prohibited the conduct described therein. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that the State Educator's Code of Ethics and Principles of Professional Conduct of the Education Profession prohibited the conduct described therein. Respondent's demonstrated inability to follow prescribed protocols and his resort to physical force in dealing with an ESE student in frustration and anger impairs his effectiveness in the school system. Respondent's misconduct in office constitutes just cause to terminate his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment contract of Kristopher J. Hunter as a teacher. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 3rd day of October, 2012.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, on behalf of the Education Practices Commission, is the state agency charged with the responsibility of disciplining teachers certified by the State of Florida. At all times material to the allegations of this case, Respondent held a Florida Educator’s Certificate, number 615411, covering the areas of physical education and health education which is valid through June 30, 2003. The juvenile justice system operates a facility for incarcerated minor males located in Okeechobee County, Florida. The facility, named the Eckerd Youth Detention Center (Eckerd), contracts with the Washington County School Program to provide educational services for the minor males. At all times pertinent to the allegations of this case, Respondent was employed by Washington County at Eckerd to teach physical education. On or about April 21, 1994, Respondent used inappropriate language toward an employee at Eckerd. Specifically, Respondent called a disciplinary dean a "nigger." During this heated encounter, which was provoked by Respondent, the dean also used inappropriate language toward Respondent and he was subsequently reprimanded for such conduct. Respondent told another employee at Eckerd that the dean "had a body odor that don’t stop." On another occasion, Respondent was unnecessarily loud in accusing an instructor in the Diversified Career Training (DCT) program of providing contraband to one of the students. This incident occurred in the office of the DCT administrator and, despite efforts to get the Respondent to be quiet, resulted in an inappropriate, public accusation of the painting instructor. During the 1993/94 school year, students complained that Respondent called them inappropriate names such as "crack babies." Two Eckerd employees overheard Respondent’s language and confirmed the allegations made by the students. It is not, however, confirmed that all student allegations were accurate. The students at Eckerd were there due to their serious behavioral problems. Many were aggressive. Some were violent. All were deemed less than credible on occasion. Had they been model students, they would not have been placed at Eckerd. Nevertheless, these students were entitled to the same considerations given to all students governed by state rules. That is, they should not be subject to disparaging remarks. Prior to the 1993/94 school year, Respondent was advised that she needed to improve areas of her performance at Eckerd. Specifically, Respondent was told of a need to maintain appropriate interpersonal relationships and to improve in the evaluation of students. Respondent was also advised that her abrasive and inappropriate vocabulary needed improvement. On March 29, 1994, the administrative staff of the Washington County School Board decided to not re-employ Respondent for the following school year. Notification of this decision was provided to Respondent on March 30, 1994. On May 10, 1994, Respondent was suspended from her duties for the remainder of the school year. Respondent argues that the actions of the school to terminate her employment (and inferentially this action) were in retaliation for Respondent’s claims of violations of various requirements concerning exceptional education students. Respondent suggested that various records were not maintained as required by law. Such argument has not been deemed credible or persuasive. Moreover, Respondent’s complaint with regard to these allegations was resolved in favor of the school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the violations set forth above, requiring Respondent to take appropriate remedial courses to improve her interpersonal skills, and imposing an administrative fine in the amount of $1000.00. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 4th day of June, 1999. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 701 Mirror Lake Drive Apartment 109 St. Petersburg, Florida 33731-0131 Sallie M. Smith 2605 Chesterfield Drive Fort Pierce, Florida 34982
