The Issue Whether the Respondent committed the violations alleged in the Petition dated May 29, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Dunaway has been a teacher with the School Board since 1988. At the times pertinent to this proceeding, she was employed under a professional service contract as a third-grade teacher at Elbridge Gale Elementary School. As a classroom teacher in Palm Beach County, Ms. Dunaway's employment is subject to the collective bargaining agreement between the School Board and the local teacher's union. Disciplinary action was taken against Ms. Dunaway prior to the events giving rise to this proceeding. On April 18, 2007, the School Board issued a Written Reprimand for Violation of School Board Policy 3.96, Drug- and Alcohol-Free Workplace, after a drug test administered by the School Board in 2007 showed a positive result for cocaine. In the written reprimand, Ms. Dunaway was advised that, if she failed to comply with School Board Policy 3.96, a recommendation for termination of her employment with the School Board would be issued. Pursuant to the collective bargaining agreement, the written reprimand was placed in Ms. Dunaway's personnel file. Ms. Dunaway began using cocaine in 2003 as a result of her feelings of devastation, humiliation, and embarrassment after an ex-boyfriend sent nude pictures of her, via electronic mail, to every employee of the school at which she was a teacher. After she tested positive for cocaine in the early part of 2007, Ms. Dunaway requested and received assistance through the School Board's Employee Assistance Program, and she stopped using cocaine as a result of her successful completion in November 2007 of an intensive program at the Gratitude House Ms. Dunaway was transferred to Elbridge Gale Elementary School in August 2008. Ms. Dunaway had a strained relationship with the school principal, Gail Pasterczyk. Ms. Dunaway felt that she was subjected to frequent, intense scrutiny by Ms. Pasterczyk, and this caused Ms. Dunaway to feel uncomfortable and increasingly anxious. According to Ms. Dunaway, Ms. Pasterczyk conducted a formal evaluation of Ms. Dunaway's teaching performance on Thursday of the second week in February 2009, which was February 12, 2009. Ms. Pasterczyk was very critical of Ms. Dunaway and gave her a poor evaluation. Ms. Dunaway was very upset about the poor evaluation and, on Friday, February 13, 2009, she used cocaine for the first time since November 2007. Ms. Dunaway admitted that she took "lots of [cocaine]” but stated that she had "stopped on Friday."2 Ms. Dunaway returned to school the following Tuesday, February 17, 2009, because Monday was a holiday. According to Ms. Dunaway, she had a very bad toothache during the weekend and arranged a dentist appointment for Tuesday afternoon. She was very nervous and took Xanax, which had been prescribed for her in February, to ease her anxiety. Ms. Dunaway claimed to have taken a Xanax right before lunch on Tuesday and to have become so "inebriated" from the Xanax that she doesn't remember anything that happened after she noticed that she was slurring her speech. On Thursday, February 19, 2009, while Ms. Pasterczyk was eating lunch in the teachers' dining room, several third- grade teachers approached her and expressed their concern about Ms. Dunaway's behavior during the morning and at lunch. Ms. Pasterczyk went to Ms. Dunaway's classroom and observed Ms. Dunaway standing at the front of the classroom, slurring her words, saying inappropriate things in front of the class, and using an overhead projector, unaware that the paper she had on the projector was upside down until she was alerted to this by her third-grade students. Ms. Pasterczyk returned to her office and consulted with Britoni Garson in the School Board's employee relation’s office. Ms. Garcon sent Ms. Pasterczyk a Drug and Alcohol Documentation of Observable Behaviors form by facsimile transmittal, which Ms. Pasterczyk completed and sent back to Ms. Garson by facsimile transmittal. On the form, Ms. Pasterczyk noted that she had observed sudden changes in Ms. Dunaway's behavior, emotional behavior, nervousness, slurred speech, increased and/or loud talking, and hand tremors. Ms. Garson reviewed the documentation submitted by Ms. Pasterczyk and determined that there was reasonable cause to subject Ms. Dunaway to a drug test. Ms. Garson contacted Ms. Pasterczyk and told her that she was to go to Ms. Dunaway's classroom and accompany Ms. Dunaway to her office, where they would wait for the drug-test team to arrive. Ms. Pasterczyk did as Ms. Garson directed, and the drug test was administered to Ms. Dunaway at approximately 2:30 p.m. on Thursday, February 19, 2009. The results were submitted to the School Board on February 25, 2009, and were positive for cocaine and for benzodiazepines, the family of drugs within which Xanax falls. Cocaine is a mood-altering drug that raises a person's tempo and makes them more animated. Xanax is a type of tranquilizer that is prescribed for people who are nervous or who cannot sleep, and it has a calming effect. Cocaine stays in the body for two to three days, but, by the fourth day after use, the results of a drug test would be negative for cocaine, that is, the amount if cocaine would be less than 300 nanograms per milliliter. Ms. Dunaway met with Alfredo Taulh to discuss her test results, and Mr. Taulh advised her that she could challenge the results of the drug test within seven days; she did not do so. The School Board conducted an investigation and, after going through all of the pre-disciplinary steps required by the collective bargaining agreement, the Superintendent of the Palm Beach County school system issued a Notice of Suspension and Recommendation for Termination from Employment dated April 24, 2009, advising Ms. Dunaway that he intended to recommend to the School Board her suspension without pay and termination of employment at the May 6, 2009, School Board meeting. Article II, Section M of the collective bargaining agreement governs the discipline of employees. Article II, Section M of the collective bargaining agreement provides in pertinent part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. . . . * * * Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph # 7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, and employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation . . . Summary Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay . . . Dismissal - An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with the provisions of this Section, including just cause and applicable laws. Based upon a consideration of all of the evidence presented, the proof is sufficient to establish with the requisite degree of certainty that, under the circumstance of this case, the School Board's decision to terminate Ms. Dunaway conforms to the progressive discipline provisions in Article II, Section M 7., of the collective bargaining agreement. Ms. Dunaway's action in ingesting large quantities of cocaine that remained in her system when she reported for work demonstrates a flagrant disregard of the School Board's policy of ensuring a drug-free workplace, a policy with which Ms. Dunaway was familiar as a result of the written reprimand she received in 2007 for her first violation of the policy. Ms. Dunaway's testimony that she did not ingest cocaine after Friday, February 13, 2009, is rejected as not credible. The drug test was administered on Thursday, February 19, 2009, and, given that cocaine is entirely dissipated from the human body within four days, Ms. Dunaway would have tested negative for cocaine if she had not ingested any of the drug since the previous Friday, six days, prior to the drug test. In order to test positive for cocaine on Thursday, Ms. Dunaway must have ingested cocaine on Monday, a school holiday, and she could have ingested cocaine at any time between Monday and Thursday. Ms. Dunaway attributed the positive test result for benzodiazepine to the Xanax she had taken to calm her anxiety about a dental appointment she had in the afternoon of Tuesday, February 17, 2009. According to Ms. Dunaway, she took the Xanax before lunch and, after realizing that her speech was slurred, remembered nothing more about the afternoon. Ms. Dunaway may have had a dental appointment on Tuesday afternoon, and she may have taken Xanax at school, but it is clear from the context of her testimony that Ms. Dunaway was referring to a lapse in memory that occurred on the day on which the drug test was administered, that is, on Thursday, February 19, 2009. The inconsistencies in Ms. Dunaway's version of the events surrounding her ingestion of cocaine and Xanax undermine the credibility of her testimony as a whole and make it difficult to credit her claim that she was not under the influence of cocaine on the day of her drug test. Even if her version of events is credited, the fact remains that she tested positive for cocaine and for benzodiazepine on Thursday, February 19, 2009. Regardless of whether her condition on that day was the result of the cocaine in her system or of the Xanax in her system or of the combination of drugs, it is reasonable to infer that her presence in a third-grade classroom when she was so impaired that she had no recollection of being there constituted a real and present danger to the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order sustaining the suspension of Debra Dunaway without pay and terminating her employment. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of January, 2010.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida. The Events Giving Rise to this Proceeding Respondent has extensive educational training and experience in working with disabled and special needs students for many years. Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness. At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003. Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida. The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years. During both school years, Respondent's ESE students were disabled and most of them were nonverbal. Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies. The 2011-2012 School Year Background Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom. Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them. The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable. The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals ——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that." Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals. After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified, credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration. On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them. On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind. The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain. Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses. On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus. Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012. Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations. Allegations in Amended Administrative Complaint In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N. Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair. At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances. Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N. Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work. The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect. Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible. By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by her ponytail. Respondent's account of the incident is credible and persuasive.6/ Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident. The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct. For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive. Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N. Student J.M. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants. Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz, J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until 1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms. Cherelus did not testify regarding this alleged incident.9/ Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing. J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know. The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive. Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face. Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/ Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/ On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this alleged incident, and her testimony was based on J.M.'s limited statement and gesture. Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified: [a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it. McLaughlin reported the incident to the abuse hotline.13/ Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up. Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair. J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/ The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band. Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint. Student A.S. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck. Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name. Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can. Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A. The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A. Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint. Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S. Student C.A. Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree." Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it. However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules. Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/ Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint. The 2012-2013 School Year Background Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class. Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year. That year, approximately nine ESE students were assigned to Respondent's classroom. The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/ In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them. The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/ The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work. The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable. Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital. In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her. To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time. Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance. On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day. On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues, update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time. On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me." At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me." Thereafter, Long spoke with Respondent to get her version of what had happened. At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom. Brown was removed from Respondent's classroom on the morning of January 24, 2013. At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015. Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes." Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013. On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health. On January 25, 2013, Jobes was removed from Respondent's classroom. On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section. In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree." Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/ Allegations in Amended Administrative Complaint In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below. Student M.M. In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them. At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish. Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips. Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M. would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what M.M. was and was not eating. On the day at issue, M.M. requested a bag of chips. Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother. Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell M.M. she had to eat the chips or force her to eat them. The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident. The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother. Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P. In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate. The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get T.P. to eat his lunch. Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating. Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident. Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors. On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened. Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive. Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint. In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me." Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P. Brown testified that she actually saw Respondent grab T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified: I didn't understand him clearly, you know. So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms. T. hurt me, you see, Ms. T. hurt me.' The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him. The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred. Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P. In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately 20 minutes. Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions. Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action. Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair. When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth. To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use. Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it. One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry. Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families. On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/ Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself. Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view. Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position. Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint. Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly. Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony. Respondent flatly denied ever having placed ice on M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom. Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations. Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R. In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air. The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and he eventually calmed down. At that point, Respondent removed C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom, C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day. Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it. It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R. However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident. Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior. However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy. As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred, C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11 a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day. It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/ Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath. As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day. The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having. Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day. Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the restroom with M.P., consistent with their established routine after the students returned from lunch. The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident. By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive. Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner. Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive. Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive. Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground. Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation. Respondent testified that at times, it was necessary for her to physically focus students' attention on their work. At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work. Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint. Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8. Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence. Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation. Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him. Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making statements such as "they're so stupid," and that she was "happy that God never gave her kids like them." Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner. Failure to Provide Statement On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination. Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation. Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding scheduling the appointment and other matters with respect to Respondent's statement. At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent. Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement. Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement. Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her. Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013. Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013. At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/ IV. Findings of Ultimate Fact Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on each of these bases, to suspend Respondent without pay and terminate her employment. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Further, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.30/ For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint. Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter. Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified. As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence. Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances. Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance. Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one. In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive. Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment. Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013. As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so. Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement. Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement. Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order, reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination. Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/ DONE AND ENTERED this 22nd day of October, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2015.
The Issue The issue in this case is whether there is just cause to terminate Lontay Finney's employment with Palm Beach County School Board based upon the allegations made in its Petition.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County, Florida. Article IX, Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Finney started his employment with the School Board on December 19, 2005. He was employed pursuant to an annual contract. Finney taught at Glades Central High School ("Glades Central") from 2010 through 2015. He was last employed as both a science teacher and assistant athletic director. Finney's annual evaluations were acceptable and effective during each year of his employment at Glades Central. As a teacher, Finney was expected to comply with the Code of Ethics. On June 1, 2010, he signed an acknowledgment that he received training, read, and would abide by School Board Policy 3.02, Code of Ethics. Reniqua Morgan ("Morgan") was a female student at Glades Central from 2011 to 2015. She was a cheerleader athlete but never had Finney as a teacher. Finney knew of Morgan as one of the daughters of his teacher colleague, Renee Johnson Atkins ("Atkins") and from seeing Morgan around school. Morgan and Finney also knew who each other were because they had a niece in common and lived in the small town of Belle Glade. However, Finney and Morgan did not associate with one another directly before March 2015. On or about March 22, 2015, Finney initiated contact, reaching out to Morgan by poking her on Facebook. Morgan poked him back and then Finney followed up by inboxing her next. Morgan was surprised that Finney was conversing with her. They continued to chat for several weeks not on an open feed of Facebook but messaging each other's inbox privately. Between 10:30 and 11:00 p.m. on Sunday, April 12, 2015, Finney initiated a conversation with Morgan and they chatted on Facebook. Finney suggested that the two of them get together and asked Morgan, do you want to "chill?" Morgan agreed and said "I don't mind." They then decided to meet up. Finney did not offer to pick Morgan up at her house. Finney instructed her to meet him at the stop sign, around the corner and down the street from where she lived.1/ Morgan, unbeknownst to her mother, met Finney by the stop sign. At the stop sign, Morgan got in Finney's mother's truck with Finney. When Finney first made contact with Morgan that night, he gave her a hug. He then drove her to his home. At all times relevant to these proceedings, Morgan was a 17-year-old minor. Finney did not have permission from Morgan's parents to either pick her up or take her to his house. His inappropriate actions were outside of school and not in connection with any school-related activity in any way. At approximately 12:24 a.m. on Monday, April 13, 2015, Morgan's mother, Atkins, was at her residence and went to use the restroom and she then discovered that Morgan was not at home. Morgan had left home without her permission. Atkins was worried about Morgan being out that early in the morning because it was "unsafe because [of] the neighborhood that [she] live[d] in, there [were] some people in that neighborhood that [were] unsafe."2/ While at Finney's house, Finney and Morgan remained in the parked truck alongside of the house alone together for approximately an hour and a half to two hours and spent some of the time talking and scrolling through Netflix on Finney's phone. Neither Morgan nor Finney can recall the name of any of the movies they watched on Netflix. Morgan's mother was looking for Morgan and found out from Bethanie Woodson ("Woodson"), Morgan's friend, that her daughter was with Finney. Atkins took Woodson with her and drove to Finney's house looking for Morgan. While in the truck with Finney, Morgan's friend contacted her and let her know that her mother was looking for her. Morgan told Finney she needed to go home. Atkins also learned while at Finney's house that Morgan was on the way home, so she got back in her vehicle and returned home. Morgan told Finney to drop her off near the railroad track, which is not the same place he picked her up. He then dropped her off where she suggested near Avenue A, a neighborhood on the opposite side of the railroad tracks from where Morgan lived, and several blocks away from her home. After Finney dropped Morgan off in the early school day morning while it was dark outside, Morgan had to walk down the street, come through the neighborhood and then walk across the bushy railroad tracks to get to her residence. The foot path Morgan took was also unlit, grassy, and rocky near the train tracks. No streetlights were near the tracks.3/ When Morgan got home, her mother, sister, and Woodson were waiting for her. Morgan's mother was irate that Morgan had been with Finney and drove Morgan back to Finney's home to address his actions with her daughter. Finney lived with his parents. When Atkins knocked on the door, Finney's father came to the door and Atkins requested to see Finney. Atkins confronted him angrily and berated him for being a teacher, picking up Morgan, and taking her to his house at that hour of the night. Atkins also informed Finney's mother what occurred while she was at their house. Morgan and Finney have had no contact since the incident. Morgan's mother reported the incident to Glades Central. As a result, the principal assigned Finney to his residence by letter, with pay, starting April 13, 2015, pending the investigation or notification of a change in assignment in writing. On April 15, 2015, Finney was assigned to temporary duty at Transportation Services pending investigation. An investigation by the school police found no violation of a criminal law by Finney, and the case was referred to Petitioner's Office of Professional Standards, which is charged with conducting investigations into alleged violations of School Board policy. On or about May 11, 2015, the Office of Professional Standards opened an administrative investigation. Dianna Weinbaum ("Weinbaum"), now director of Office of Professional Standards and former human resources manager, was assigned to investigate the matter. Around the time the investigation was being conducted, Finney deactivated his Facebook page due to the mostly negative comments and statuses, as well as rumors surrounding the incident of him picking up Morgan and taking her to his house. Finney was able to finish the school year working back at Glades Central between investigations. Weinbaum performed a thorough and complete investigation regarding the allegations against Respondent. She interviewed all the witnesses and obtained statements, as well as visited the locations where Finney picked up and dropped off Morgan. On August 4, 2015, consistent with District policy, Respondent was removed from the classroom and reassigned from his teaching position back to a temporary duty location again. On October 8, 2015, a pre-determination meeting was held with the director of the Office of Professional Standards and Finney, who was represented by counsel regarding the interactions between Finney and Morgan. Finney was provided a copy of the investigative file. At the end of the investigation, it was determined that Finney's actions were both an inappropriate relationship with Morgan and posed a clear threat to Morgan's health, safety and welfare. Weinbaum recommended discipline for Finney consistent with discipline received by other employees based on the superintendent and School Board's position that employees who engage in inappropriate relationships with students and who endanger the health, welfare and safety of a child will be terminated. On November 19, 2015, Petitioner notified Finney of the superintendent's recommendation for termination of his employment at the School Board Meeting set for December 9, 2015. The School Board accepted the superintendent's recommendation and voted to suspend Finney for 15 days and thereafter terminate his employment. Finney timely requested a hearing to contest the superintendent's recommendation. Finney's disciplinary history does not include any discipline for actions similar to these for which suspension and termination are recommended. Petitioner charged Finney by Petition with soliciting an inappropriate relationship with a student that jeopardized her health, safety and welfare. The Petition charged Finney with the following violations: School Board Policies 0.01(2)(c),(2)(f) Commitment to the Student Principle 1; 3.02(4)(a)(b)(d)(e),(g); 3.02 5(a),(a)(iii),(a)(v),(a)(vii); Code of Ethics; 1.013(1) and (4), Responsibilities of School district Personnel and Staff; School Board Policies 1.013 and 3.27, Criteria for Suspension and Dismissal, and Code of Ethics of the Education Profession in Florida; the Collective Bargaining Agreement Article II, Section M; and (C) Rule 6A-5.056 (2)(a),(b) and (4) F.A.C., Criteria for Suspension and Dismissal; 6A-10.081 (3)(a) and (3)(e), F.A.C.; 6A-10.080(1),(2) and (3) F.A.C. Code of Ethics for the Education Profession of Florida; and 6A-10.081(3)(a) and (3)(h) F.A.C. Principles of Professional Conduct for the Education Profession. During the final hearing in this matter, Finney testified that his decision to drive Morgan to his house "was a lapse in judgment and it was just a bad decision that I made." At hearing, the testimony and exhibits established that Finney initiated contact with Morgan and solicited an inappropriate relationship with a student that jeopardized her health, safety and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: dismissing charges of violations of policies 0.01(2)6., 3.02(4)(a), (d), (e), and (g); 5(a), (a)(iii), (a)(v), and (a)(viii); 1.013(4); and rule 6A-10.081(3)(e) and (h); finding Respondent in violation of rules 6A-10.080(2) and (3), 6A-5.056(2), 6A-10.081(3)(a), policies 0.01(2)3., 1.013(1), 3.02(4)(b), and 3.02(5)(a)(vii), as charged; and upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 4th day of January, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 4th day of January, 2017.
The Issue The issue to be determined is whether Respondent violated the Principles of Professional Conduct for the Education Profession in Florida as alleged in the letter from Duval County School Board dated May 25, 2017; and, if so, the appropriate disciplinary action.
Findings Of Fact Background Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Duval County, Florida. Art. IX, § (4)(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Ms. Stripling-Mitchell is a teacher covered by the Collective Bargaining Agreement (“CBA”) between Duval Teachers United and the Duval County School Board for 2014-2017. At all times material to this matter, Respondent was a teacher assigned to Hyde Grove. During the 2016-2017 school year, Respondent was assigned to teach second-grade students. As a classroom teacher, Respondent was expected to comply with the 2016-2017 staff handbook which required staff members to strive to achieve ethical conduct and to familiarize themselves with the Code of Ethics. Teachers are trained to avoid touching students aggressively and to avoid leaving students unsupervised. The staff handbook provides that students should not be left unsupervised in a classroom or other area. The policy also provides that no student should be sent to the playground without teacher supervision. Ms. Sapp, the principal of Hyde Grove, provided training to the staff during pre-planning training and orientation week. One of those trainings was on Ethics and Professionalism. The training in-service record reflects that Respondent completed the training. During the training, Ms. Sapp provided guidelines for interaction with students and demonstrated the training principles. To avoid aggressive touching of students, she gave examples as follows: “[i]f a student falls down to the floor, pouting, as children would do, . . . basically ask for them to get up, but, rule of thumb, just not to put your hands on the student.” Ms. Sapp testified that teachers could exercise various strategies to diffuse a situation with a student engaged in disruptive behavior. Teachers are trained to create distance between the child who is being disruptive and the adult, until someone else could remove that child. Another strategy is to transfer the disruptive student to the partner-teacher for time- out. A teacher could also send the classroom partner for help or call the administration for assistance. Ms. Stripling-Mitchell testified that her partner-teacher, Ms. Hinton, was absent on the day of the incident so she did not use that strategy. However, Ms. Stripling-Mitchell did not otherwise use any of the suggested strategies during the incident with the student. The facts that serve as the basis for this case occurred in April 2017. On April 20, 2017, at approximately 2:45 p.m., classes were preparing for afternoon dismissal. At around the same time, Ms. Jones, the Team-Up instructor arrived at the classroom she shared with Ms. Stripling-Mitchell. Team-Up is an after-school program that provides academic enrichment, arts and crafts, and homework assistance. The Team-Up program operates from 2:55 p.m. until 6:00 p.m. each day. As she entered the classroom, Ms. Jones saw Ms. Stripling-Mitchell talking to students to prepare them for dismissal. The students were working on the iReady program using laptops. Respondent was working with three students who were seated in the back left corner of the classroom. Ms. Jones noticed that J.K. was being noncompliant with Ms. Stripling- Mitchell’s requests to continue working on the iReady program. As a result of the disruptive behavior, Ms. Stripling- Mitchell directed the student to return his laptop to the laptop cart and leave her classroom. The student continued to be disruptive and stated that he was not going to leave. Ms. Jones heard Ms. Stripling-Mitchell say, “[l]et me help you out with it,” and Ms. Stripling-Mitchell led the student by his left arm to the front of the classroom. Ms. Jones also heard the student say, “[n]o. I didn’t do anything. Get your hands off me.” While the student walked with Respondent side by side, he continued to resist. When the two arrived at the front of the classroom, the student turned and faced Respondent. Ms. Stripling-Mitchell bent over toward the student’s face. Her face was a few inches from the student’s. Ms. Jones saw Ms. Stripling-Mitchell pointing and waving her finger in the student’s face while saying, "[w]hat did your mother tell you? Didn't she tell you to respect me? I'm going to call your mother and she's going to beat your butt." Ms. Jones testimony about this statement is different in her written statement, which states, “[M]s. Stripling-Mitchell said, What did your mother tell you about being disruptive? What did your mother tell you about being disrespectful to me? I am going to call your mother and tell her everything you have done here today so she can get on your butt!” Ms. Jones was at the back of the room, near the sink, on the opposite side of the room from Ms. Stripling-Mitchell and the student. Although the statements are different, the difference is of minor significance. The evidence demonstrates that Ms. Stripling- Mitchell threatened to call the student’s parent while she and J.K. were at the front of the classroom and in front of other students. The student in turn yelled at Respondent to get out of his face. At the same time, he raised the laptop above his head and swung it at Ms. Stripling-Mitchell. Respondent blocked the laptop and took it from the student. The student then attempted to punch Ms. Stripling-Mitchell. She dropped the laptop and blocked his punch. Although Ms. Jones witnessed the events, she had not intervened to assist Ms. Stripling-Mitchell at this point. Ms. Jones contacted the administration office two times, but the teachers did not receive assistance in the classroom. After Ms. Stripling-Mitchell struggled with the student, she restrained him against one of the two dry-erase boards using her hand and forearm. Ms. Stripling-Mitchell was directly facing the student with her back to the classroom, and the student’s back was against the dry-erase board. Ms. Jones testified that Ms. Stripling-Mitchell and the student continued to argue and they moved along the dry-erase board laterally, for approximately eight feet. Ultimately, Ms. Jones separated Ms. Stripling-Mitchell and the student. Ms. Jones walked the student to Ms. Sapp’s office. During the walk to the principal’s office, the student complained of shortness of breath and was breathing heavily. Ms. Sapp was notified that a student was in her office and there was an issue she needed to address. Ms. Sapp testified that when she initially saw the student, he was crying, huffing and puffing, and breathing hard. When Ms. Sapp asked what happened, the student told Ms. Sapp that Ms. Stripling-Mitchell placed her hands around his throat and that he could not breathe. After J.K. told his account of the incident, Ms. Stripling-Mitchell arrived in the office. Ms. Sapp then met with J.K. and Ms. Stripling-Mitchell. During the meeting, J.K. repeated that Ms. Stripling-Mitchell choked him. Ms. Stripling- Mitchell interrupted J.K. and engaged him in reenactment of the incident. The reenactment consisted of Ms. Stripling-Mitchell demonstrating how she restrained the student using her hand near his neck. Ms. Sapp then stopped the reenactment and asked the student to wait outside her office. Ms. Sapp told Ms. Stripling-Mitchell she should not touch the children, and Ms. Stripling acknowledged in agreement this was the school policy. Ms. Sapp testified that it was unacceptable for Ms. Stripling-Mitchell to instruct the student to leave her class and go sit at the picnic bench without supervision. Ms. Sapp finished her meeting with Ms. Stripling- Mitchell, and Ms. Stripling-Mitchell returned to her classroom. Before Ms. Sapp met with J.K. and Ms. Stripling- Mitchell, she contacted the Office of Professional Standards for guidance regarding the appropriate next step. Ms. Sapp was advised to obtain statements regarding the incident. Ms. Sapp later asked Ms. Jones to send students who had knowledge of the incident to her office. After speaking with the students, Ms. Sapp asked the students to write statements about the incident as requested by the Office of Professional Standards. The statements were provided to the investigator conducting the investigation of the allegations, Mr. Gregory. Mr. Gregory collected the written statements and interviewed five students the day following the incident. Overall, the students provided varied descriptions of what happened. Mr. Gregory also conducted an interview of Ms. Jones, a portion of which occurred in the classroom, and requested that she provide a written statement. In addition to obtaining witness statements, Mr. Gregory researched Ms. Stripling-Mitchell’s discipline history. He discovered that Ms. Stripling-Mitchell had been the subject of prior investigations that resulted in disciplinary action. On May 18, 2012, Ms. Stripling-Mitchell was investigated for use of profanity, demeaning, and derogatory communication directed toward employees. She was issued a written reprimand, a Step II disciplinary action. In December 2016, Ms. Stripling-Mitchell was involved in an incident with a different student that is of direct relevance to this proceeding. In that incident, a parent complained about Ms. Stripling-Mitchell’s interaction with their child. It was determined that during an interaction with a disruptive student, Respondent pushed that student to the floor and verbally reprimanded him in front of other students. The incident resulted in the child being subject to embarrassment and physical aggression. On January 9, 2017, Ms. Stripling-Mitchell was issued a written reprimand, her second Step II disciplinary action. Ms. Stripling-Mitchell was also directed to seek assistance from the Employee Assistance Program (“EAP”) to obtain training on strategies for deescalating situations. After the interviews and review of the statements, Mr. Gregory concluded that Ms. Stripling-Mitchell used inappropriate physical contact with J.K. by restraining him against the wall with her hand and arm against his throat, after J.K. swung the laptop at her. Although not specifically alleged in the Notice, there was a dispute whether the student was choked. Ms. Jones testified that Ms. Stripling-Mitchell choked the student during the incident. However, she did not mention choking in her written statement. At hearing, Ms. Jones was confronted with a text message addressing that issue. The texts were as follows: Ms. Stripling-Mitchell: I was told that Ms. Timberlake planned or plans to call DCF or someone since J.K. told her I choked him that why he tried to hit me. LIES!! Ms. Jones: What!!! That’s a freaking lie!!! You did not choke him!!! Ms. Jones’ testimony regarding Ms. Stripling-Mitchell choking J.K. was not credible. There was also a dispute regarding whether Ms. Stripling-Mitchell raised her fist toward the student. Ms. Jones testified Ms. Stripling-Mitchell raised her fist and threatened to strike the student. Ms. Jones did not mention this allegation in her written statement provided days after the incident. Ms. Jones also did not mention this alleged observation when Mr. Gregory interviewed her. Ms. Stripling- Mitchell testified that she did not raise her fist to strike J.K. The student provided a statement describing the incident in his own words. He indicated that Ms. Stripling- Mitchell placed her hand on his neck. There was no reference in the student’s statement that Ms. Stripling-Mitchell tried to punch him. Several other students provided written statements which also did not include any indication that Ms. Stripling- Mitchell raised her fist toward the student. The undersigned finds no credible evidence that Ms. Stripling-Mitchell raised her fist to strike the student. There was much discussion at hearing regarding the description and behavioral history of the student. Ms. Jones described the student as a seven-year-old, scrawny boy, standing at four feet, nine inches. She also stated that the student could be sweet, but could be provoked “if things don’t go his way, if you threaten him or when the children . . . play a game called “the dozens.”2/ Ms. Stripling-Mitchell, on the other hand, described the student as routinely disruptive and noncompliant with staff. Between October 2016 and April 2017, J.K. engaged in conduct that resulted in six referrals. The referrals involved pushing another student, attempting to trip a student multiple times, stabbing a student in the arm with a pencil, and fighting. There were no referrals that involved a confrontation with a teacher. Ms. Stripling-Mitchell provided her account of the incident at hearing. Ms. Stripling-Mitchell testified that she became the student’s teacher in August 2016. Shortly after he became her student, she became aware of his disruptive behavior. Ms. Stripling-Mitchell had a practice of telling J.K., “[I]’m going to call your mom if you don’t settle down,” to encourage him to stop engaging in inappropriate behavior. On April 20, 2017, Respondent was working with three students on the iReady system when she heard someone say “[t]he folder hit me.” When she approached a group of three boys, including J.K., one student said, “J.K. just hit me with a folder.” Ms. Stripling-Mitchell instructed the boys to get back to work. Before she returned to her seat, she heard someone say “Stop.” She then returned to J.K. and told him, “[y]ou’re going to need to go sit on the picnic table.” J.K. agreed to return to the iReady activity. However, a short time later, Ms. Stripling- Mitchell heard a loud yell from one of the boys at J.K.’s table. Ms. Stripling-Mitchell then repeated to J.K., “[y]ou’re going to have to leave.” Ms. Stripling-Mitchell recalls that Ms. Jones arrived and sat at a table in the opposite corner of the room and began changing her shoes. During this time, Ms. Stripling-Mitchell continued to engage in a back-and-forth exchange with J.K. Similar to Ms. Jones’ account of the incident, J.K. swung the laptop at Ms. Stripling-Mitchell and she blocked it. Then, J.K. tried to punch her, which she also blocked. Ms. Stripling-Mitchell testified that after she blocked his punch, J.K. continued to attack her by trying to throw her to the floor. She testified that she had to restrain him against the dry-erase board to avoid falling. It is disputed whether the student continued to attack Ms. Stripling-Mitchell after she took the laptop and blocked his punch. Ms. Jones testified the student was not attacking Ms. Stripling-Mitchell, but rather he was trying to get away while Ms. Stripling-Mitchell was restraining him. On the other hand, Ms. Stripling-Mitchell testified that the student was trying to “flip” her, which is why she restrained him. The undersigned finds Ms. Jones’ testimony more credible. After J.K.’s failed attempt to punch her, there was no evidence of a threat for which Ms. Stripling-Mitchell needed to defend herself. Even if there was a threat, Ms. Stripling- Mitchell inappropriately touched J.K. by restraining him against the dry-erase board using her hand against his neck area. Ultimate Findings of Fact Overall, the credible evidence demonstrates that Ms. Stripling-Mitchell restrained the student against the dry- erase board using her hand near his neck. Ms. Stripling-Mitchell exercised poor judgment when she told the student that his mother was going to discipline him at home for his behavior in front of other students. Ms. Stripling-Mitchell exercised poor judgment when she instructed the student to leave her classroom to sit at the picnic bench.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Duval County School Board, enter a final order sustaining the Step III written reprimand and suspension without pay disciplinary action imposed against Respondent, Stephanie Stripling-Mitchell, as an instructional employee of the School Board. DONE AND ENTERED this 12th day of December, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2017.
The Issue The issue in this case is whether the two Respondents, or either of them, should be assigned to the Petitioner's school program.
Findings Of Fact During the 1989/90 school year, Michel Alvarez and his brother, Maikel Alvarez, were both students at American Senior High School in Dade County, Florida. Michel was in the ninth grade and Maikel was in the tenth grade. During the 1989/90 school year, Michel and Maikel Alvarez were students in the industrial arts class of a teacher named Morton Bernstein. On May 1, 1990, during the change of classes after second period, Michel Alvarez approached another student in his second period industrial arts class, Benny Rodriguez, and asked why the latter had been pointing at him. A verbal dispute ensued as to whether there had been any pointing and, if so, what anyone was going to do about it. Thereupon, Michel tackled Benny around the waist with enough force to knock Benny to the floor. Both boys fell to the floor, Benny beneath on his back, Michel above, facing Benny and holding onto him. They struggled on the ground. As they struggled, a large crowd of other students quickly gathered. During the course of the struggle, Benny Rodriguez was kicked or stomped several times. As a result of the blows he received during the struggle, Benny Rodriguez suffered a broken nose and several bruised ribs. 1/ Maikel Alvarez was nearby when he was informed that his brother was in trouble. Maikel pushed his way through the crowd and worked his way towards the middle. Maikel pulled his brother off of Benny Rodriguez and Maikel and Michel Alvarez moved away from the crowd of students. Maikel and Michel Alvarez both went to their respective third period classes. During third period, both of them were called to the Principal's office. At about the same time that Maikel Alvarez went to help his brother, a teacher named Morton Bernstein became aware of the crowd and the struggle and went to break it up. When Bernstein got to the scene of the fracas, the struggle was over and Benny Rodriguez was on the floor, obviously injured. Bernstein assisted Benny and called the school security office. A school security officer accompanied Benny to the main office. Donald Hoecherl, an assistant principal, was present when the security officer brought Benny to the office. Hoecherl put Benny in a room and asked if he was okay. Benny was still bleeding but was coherent. Hoecherl questioned Benny to find out what happened. He then summoned Michel and Maikel to the office where he questioned them. He also called the parents of the students involved, the police, and the school's special investigative unit. Hoecherl had the students write down what happened after they had given him a verbal account. Benny was released to his parent. He was taken to his doctor who then sent him to the hospital. He remained hospitalized for two days and had an operation for the fracture to his nose. Mrs. Alvarez arrived and Hoecherl explained, through an interpreter, what had happened based on the account he had gotten from Bernstein and the students. During the discussion with Mrs. Alvarez and her sons, Maikel appeared to have a poor attitude and he did not appear to be taking what had happened seriously. Mrs. Alvarez told Maikel to straighten up in his chair. She then slapped him. Maikel pushed his mother against the wall. Hoecherl and the police officer who had been called to the school had to restrain Maikel from further physical confrontation toward his mother. Maikel was placed in handcuffs. Hoecherl told Mrs. Alvarez that he was suspending both Michel and Maikel for ten days and recommending an expulsion with a waiver to opportunity school. He made certain that School Board rules and procedures for according the Alvarezes their due process rights were followed. Hoecherl prepared and mailed home the Notice of Suspension forms for Maikel and Michel which narrated the reasons for the disciplinary actions and the right to a school level hearing. Michel's Notice of Suspension form indicated that the suspension was for battery and kicking another student. Maikel's Notice of Suspension form indicated that the action was being taken for battery on a student and parent. Both forms indicated that these rule infractions were Group III violations. The School District's Code of Student Conduct provides that Group III violations warrant expulsion from school. Bernstein had both Michel and Maikel as students in his industrial arts classes. Michel required more attention than the rest of the students. Bernstein described Michel's behavior as disruptive of the regular program and also indicated that Michel's behavior created safety concerns because of the use of power tools in his class. Michel was not passing Bernstein's course because of excessive absences and poor effort. Maikel did little or no work in Bernstein's class. He sat around and talked to friends and did not complete projects. His absences were excessive and he was not passing. Carol McKenny taught Michel math. Michel was disruptive, absent excessively, and was making no effort. He required more attention than her other students, which made it difficult to teach. She talked to Michel and to Mrs. Alvarez about her concerns in an attempt to help him, yet this produced no noticeable improvements in his behavior, attendance, or effort. James McKiernan taught Maikel biology. Maikel was failing this subject because he was making no effort and was frequently absent. McKiernan spoke with Maikel and Mrs Alvarez, but Maikel did not improve. Henry Adams was Michel's and Maikel's guidance counselor. He talked to both students during the year in an attempt to help them. He discussed their chronic absences which were in excess of the state mandatory attendance requirements. He discussed the relationship of attendance to grades. He discussed their behavior in class. He talked to Mrs. Alvarez about their absences and poor progress in school. Adams, who is knowledgeable of the programs offered by the district's opportunity schools, is of the opinion that both students would benefit from such placement because of the smaller class sizes, more structured environment, and increased counseling services. Hoecherl conducted a review of both students' school records files prior to making his final recommendation to the Assistant Superintendent for Alternative Education. His review included grade reports, ability test scores, discipline reports, and attendance information. Michel has average ability and was capable of making B's and C's; however, he failed six of eight courses during the year. Even had he not been suspended on May 1, 1990, he would not have been academically successful because of his grades prior to the last marking period. Maikel has average to slightly below average ability, but was capable of average work in the courses he was taking; however, he failed seven of nine courses during the year. Even had he not been suspended on May 1, 1990, he would not have been academically successful because of his grades prior to the last marking period. Maikel had previously been suspended for five days for fighting. This was a Group III expellable offense. Maikel also had been assigned to several Saturday schools in an attempt to help him remediate the work he had missed when he cut classes on approximately 20 occasions. Saturday school is a District- approved method for helping a student improve his academic performance through a tutorial program. American High School had provided both Michel and Maikel with a variety of student services, including counseling by Adams, Saturday school for Maikel, teacher conferences, and parental contact by the administration. Despite the school's efforts, both students were not successful in the regular program at American High School. An opportunity school assignment would assist Michel and Maikel because it would provide greater structure, smaller class sizes and increased student services. This educational alternative program would afford both students an opportunity to become more successful in school. Maikel is currently enrolled in the opportunity school. He is doing well in his classes and has improved his attendance.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Dade County School Board enter a Final Order in these consolidated cases concluding that Michel Alvarez and Maikel Alvarez are properly assigned to Douglas MacArthur Senior School-North, an opportunity school located in Dade County, Florida. DONE AND ENTERED at Tallahassee, Leon County Florida, this 11th day of December, 1990. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1990.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
The Issue Whether Respondent committed the violations alleged in the Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county. Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case. Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board. For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the 2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3 Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam. At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures": CLASSROOM MANAGEMENT PROCEDURES Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor. If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming. * * * It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct. All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor. Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form. The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year. NEVER - Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4] The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)": Occurs when two or more students engage in physical force or violence against each other and they become so enraged that they do not stop when given a verbal command to do so, OR physical restraint is required, AND/OR someone is injured to an extent that requires immediate first aid or medical attention. Any serious fighting incident that causes injury or requires medical attention would result in a suspension. If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor. On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back. A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7 Notwithstanding that she had physically restrained A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8 Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class. Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where Dr. Menocal spoke to them separately. Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent. A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal. Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H. After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident. That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent. The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance). Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting). Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11 Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school." Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After first speaking with Dr. Menocal, Mr. Machacon spoke with A. H., A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent. During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident. None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that A. P. had hit A. H. while A. H. was being held by Respondent). Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter. By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her." Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.") Sometime before this meeting between M. M. and Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back." M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal, M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath. On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School Board's Region III Office, where she engaged in "professional development" activities. By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16 Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows: Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . . * * * Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17] I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape. * * * I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident. I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character. On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police. By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled September 7, 2010, meeting, that Respondent receive a 30-workday suspension. The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20, 2010. Respondent has served her suspension. By letter dated September 8, 2010, Respondent "request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH. A. P.'s and A. H.'s depositions were taken in anticipation of the hearing. At her deposition, A. P. declined to answer any questions. A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to Dr. Menocal the day of the Incident, when the matter was fresh in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19 A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2015.
Findings Of Fact 1. William Long holds Florida Teaching Certificate number 241743, covering the area of elementary education; it is valid through June 30, 1993. 2. During the 1987-88, 1988-89, 1989-90, and 1990-1991 school years, Mr. Long was employed as a teacher at Highland Oaks Elementary School by the School Board of Dade County. Mr. Long taught fifth grade with a team of four other teachers. The teachers worked together closely, as the team concept required them to teach their classes in a single large classroom and to instruct certain subjects to all of the students at the fifth grade level. The early portion of Mr. Long's employment at Highland Oaks was unmarkable. Beginning in the 1989-1990 school year, and continuing through the 1990-1991 school year, Mr. Long engaged in unprofessional behavior which was noticed by his fifth grade team members and by the administrative staff of Highland Oaks. Mr. Long was often absent from work. He also frequently arrived late for work in the morning and left school before the dismissal time for teachers. Although Mr. Long was advised by his principal to be punctual, he continued to arrive late to school. Mr. Long missed or was late for parent-teacher conferences because of his tardiness. Absenteeism prevented him from participating in several fifth grade team conferences and planning sessions. Mr. Long did not prepare adequate lesson plans. The absence of proper lesson plans caused difficulties for substitute teachers during his many absences. Mr. Long consistently neglected to maintain student records and student assignments, and failed to record grades in his grade book. He did not properly issue progress reports and report cards. Team members often had to evaluate his students in his absence, based upon inadequate information. Mr. Long's lack of record keeping violated Date County School Board Rule 6Gx13-4A-1.21. Mr. Long left his class unattended and unsupervised on an almost daily basis. He usually failed to follow the procedure of notifying another teacher before leaving his class. As a result, his unsupervised students became noisy and disruptive to other classes. Mr. Long frequently fell asleep during the school day in his classroom. On occasions, his own students had to wake him up. Mr. Long fell asleep during staff meetings, most notably during a meeting concerning the district's Drug-Free Work Place policies on December 6, 1989. Parents made numerous complaints to teachers and administrators about Mr. Long. Parents often asked to have their children transferred out of his class. Mr. Long's behavior became widely known and was a serious cause for concern among parents. Mr. Long also engaged in bizarre and unusual conduct in front of his students. This conduct included: making guttural sounds and dancing in front of the class, putting a box over his head, hanging a lunch bag on his ear, "moonwalking" and singing in the cafeteria, putting a straw in his nose as if inhaling cocaine, and eating a candy cane with exaggerated movements. Student response to such actions caused a distraction to other classes and teachers. As a result of these deficiencies, members of the fifth grade teaching team frequently had to fulfill Mr. Long's duties, such as conducting parent conferences, planning, and evaluating and grading student work. Mr. Long's difficulties were first reported to the district on December 1, 1989, when Virginia Boone, Principal of Highland Oaks, referred him to the Employee Assistance Program. Ms. Boone's referral followed several conferences with Mr. Long about his deficiencies. On January 18, 1990, James E. Monroe, Director for the Office of Professional Standards, held a conference for the record with Mr. Long. Mr. Long was told to submit his grade book with up-to-date student grades, report for a medical evaluation and drug screening, and to remain at home and be accessible by telephone. On January 19, 1990, Mr. Long tested positive for the presence of cocaine in his system. The test results were subsequently reported to the school district. The positive cocaine test constituted violation of the Dade County School Board's Drug Free Work Place policy in that test results, coupled with his behavior, show that he was under the influence of cocaine while on duty. Mr. Long did not report for his medical evaluation on two occasions, and did not remain at home in order to be reached by district personnel. On January 31, 1990, the Respondent was reassigned to the School Board's Region II Office. Mr. Long received a memorandum on February 5, 1990, from his principal and assistant principal which detailed his non-compliance with their directives concerning grading of his students, lesson plans, supervision of students, and participation in parent conferences. On February 5, 1990, district personnel met with Mr. Long in another conference for the record. He was placed upon medical leave to undergo substance abuse counseling. He was also warned of his violation of district policies and state rules, and was advised that failure to improve could lead to termination. Mr. Long first attended a 28 day inpatient drug abuse program at Mt. Sinai Hospital. Beginning April 26, 1990, he participated in the Concept House drug and rehabilitation program as a resident, and was subsequently transferred to an outpatient program. In August of 1990, Mr. Long was cleared to return to work and was assigned back to Highland Oaks Elementary. As a condition of his return, he was required to continue his participation in the after care portion of his drug treatment program. Upon his return to Highland Oaks, his unprofessional and inappropriate behavior became worse. He engaged in the same conduct as the previous school year and parents continued to complain about him and request transfers of their children from his class. On September 5, 1990, Mr. Long was arrested by police officers in Opa Locka, Florida, and charged with possession and purchase of cocaine. Mr. Long failed to follow administrative directives by not participating appropriately in his aftercare program. On December 3, 1990, the Concept House terminated him from its program and subsequently notified the district of its action on December 5 or 6, 1990. On December 17, 1990, Mr. Long fell asleep during class. At one point during the day, he was physically unable to stand to conduct his class. On that same day, a teacher observed Mr. Long eating a candy can in a strange and exaggerated manner, and believed that he was "out of it." The teacher called Assistant Principal Barbara Cobb to come to the classroom. Barbara Cobb observed the same behavior, and after watching Mr. Long for several minutes, asked him to accompany her to the school office. Mr. Long told Ms. Cobb a bizarre story about activities at his house. He repeated the story for the principal, who sent Mr. Long home for the day. On December 29, 1990, Mr. Long again was arrested by police officers in Miami upon suspicion of possession of cocaine. He was incarcerated in the Dade County Jail until January 17, 1991, in part due to a bench warrant issued as a result of his September 5, 1990 arrest. No adjudication was ever entered as to the charges resulting from the September 1990 or December 1990 arrests. On January 6, 1991, near the end of the winter vacation, Mr. Long telephoned Assistant Principal Cobb and informed her that he would be absent for an unspecified period of time because of his father-in-law's death. When Mr. Long placed the call to Ms. Cobb, he was still incarcerated in the Dade County Jail. District policy authorizes the use of sick leave in the event of the death of a relative, but not if an employee is in jail. Mr. Long's false statement concerning the purpose of his absence violated School Board Rule 6Gx13-4E-1.02, and was a ruse to attempt to be paid using sick leave benefits, to which he was not entitled. On January 11, 1991, Mr. Long was assigned to the Region II Office. He returned to work on January 22, 1991. While at that location, he failed to follow directives concerning signing in and out and reporting absences. The district penalized Mr. Long a day and a half's pay for his unauthorized absences. Mr. Long did not receive an annual teaching evaluation for the 1989- 1990 and 1990-1991 school years, primarily because he was absent from classroom duty during the portion of the year when the evaluations were conducted. On March 20, 1991, the School Board of Dade County suspended Mr. Long from his position and initiated dismissal proceedings against him pursuant to Section 231.36(4)(c), Florida Statutes. At Mr. Long's election, a formal Division of Administrative Hearings hearing was held before Hearing Officer Stuart M. Lerner on September 12, 1991, and October 6, 1992. On February 11, 1991, Hearing Officer Lerner issued a Recommended Order which found that Mr. Long should be dismissed from the school system on the grounds of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency. On March 18, 1992, the School Board of Dade County adopted the Recommended Order and dismissed Mr. Long from his employment with the school system upon the grounds set forth in the Recommended Order. Mr. Long failed to provide a proper or even minimal education to his students during the 1989-1990 and 1990-1991 school years. School staff and parents in the community were well aware of Mr. Long's poor performance as a teacher. All of Mr. Long's fifth grade team members had little confidence in his performance, and did not want to work with him again. The School Board gave Mr. Long an opportunity for rehabilitation and a chance to return to the classroom, upon his return Mr. Long continued to engage in inappropriate behavior. Dr. Patrick Gray is qualified as an expert in performance appraisal, personnel management and professional ethics in the field of education. Based upon his experience, knowledge of Education Practices Commission precedent, and evaluation of the facts of the case, Dr. Gray recommended that Mr. Long's teaching certificate be suspended or revoked for a minimum of three years, followed by a probationary period with quarterly reporting, random drug testing, and coursework in the area of his deficiencies. The recommendation of revocation was supported by Dr. Joyce Annunziata, Director for the Office of Professional Standards for the School Board of Dade County.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent, William Long, be found guilty of violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. It is further recommended that the Education Practices Commission revoke Mr. Long's teaching certificate for three (3) years, and that if he does re-enter the teaching profession as a licensed educator, that he shall be placed on an additional three (3) years of probation with the Education Practices Commission. The terms of the probation shall include the requirement that Mr. Long: shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school district rules and other policies governing teacher conduct and of any disciplinary actions imposed upon him by the district; shall make arrangements for his immediate supervisor to provide the Education Practices Commission with an accurate copy of each written performance evaluation prepared by his supervisor, within ten (10) days of its issuance; shall perform his assigned duties in a competent professional manner; shall violate no law and shall fully comply with all school board rules and State Board of Education Rule 6B-1.006; and shall successfully complete two (2) college level courses, each course being three (3) credit hours, in the areas of classroom management and teaching methods. During the probationary period, Mr. Long shall submit to random drug testing. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June 1992.
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on 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 Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
