The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon 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. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. 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 14th day of August, 2002.
The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent has been licensed in the fields of elementary education and exceptional student education. Her Florida education certificate number is 840291. Her certificate expires on June 30, 2010. Respondent was employed by the Bradford County School District from 1994 to 1996, from 1998 to 2001, and finally from 2004 to 2007. She has worked as a substitute teacher, a parent specialist, and a teacher of varying exceptionalities. At the time of the events alleged in the Administrative Complaint, Respondent was the principal and teacher at Believer's School of Learning (Believer's School) in Bradford County School District. Believer's School was a charter school, for grades K-3, meant to give alternatives to traditional public school. Charter schools fulfill various purposes such as improving student learning and increasing learning opportunities. With respect to the Believer's School, a special emphasis was placed on low- performing students and reading. An "exceptional student" is defined by Section 1003.01(3)(a), Florida Statutes, as: ny student who has been determined eligible for a special program in accordance with rules of the State Board of Education. The term includes students who are gifted and students with disabilities who have an intellectual disability; autism spectrum disorder; a speech impairment; a language impairment; an orthopedic impairment; an other health impairment; traumatic brain injury; a visual impairment; an emotional or behavioral disability; or a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; students who are deaf or hard of hearing or dual sensory impaired; students who are hospitalized or homebound; children with developmental delays ages birth through 5 years, or children, ages birth through 2 years, with established conditions that are identified in State Board of Education rules pursuant to s. 1003.21(1)(e). Respondent had Exceptional Student Education (ESE) students in her school. Believer’s School was required to follow federal and state guidelines with respect to ESE students. Those requirements include keeping complete, current and accurate records with respect to exceptional education students. These recordkeeping requirements are required by federal and state law and are necessary for the school system of Bradford County, of which Believer's School was a part, to remain eligible for federal and state funds allocated to pay costs associated with educating exceptional students. In accordance with Florida Administrative Code Rule 6A- 6.03028(3), Respondent was required to prepare an Individual Education Plan (IEP) for each ESE student attending Believer's school. Rule 6A-6.03028(3) states: (3) IEP Requirements. An IEP or individual family support plan (IFSP) must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. An IEP is necessary to evaluate the student's educational level, to establish short and long-term educational objectives, to develop alternative ways to accomplish those objectives, and to record the progress of the plan and establish a means for review of the student's educational progress. The proper preparation and maintenance of an IEP is a basic responsibility of the Respondent for exceptional education students at Believer's School. An improperly prepared IEP is potentially harmful to the learning of an ESE student because services and accommodations must be listed on the student's IEP before they can be provided. IEP’s are created by an IEP Team during a meeting involving the parties as set out in Florida Administrative Code Rule 6A-6.03028(3)(c) as follows: (c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include: The parents of the student; Not less than one (1) regular education teacher of a student with a disability... Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student; A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. . . An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., or (3)(c)4., of this rule;. . . Upon completion, the IEP is signed by the regular education teacher, the ESE teacher, the local education agency (LEA), and the parent or guardian of the student. The LEA is ultimately responsible for what goes into the IEP. If something is in the IEP it is because the LEA determined that it was feasible to carry out. The ESE teacher examines the psycho-educational reports and the specialized needs of the student. He or she often provides strategies to the regular education teacher to use with the ESE student. The regular education teacher is the most familiar with the curriculum being used for the student’s grade level. He or she provides insight as to how that curriculum can be adapted for the ESE student. Members of the IEP Team for an ESE student are supposed to be teachers and individuals associated with the student’s current grade level and involved in the student's education, in order to provide accurate curriculum and services for the student. The IEP Team is supposed to review the child’s test scores or have access to the child, know about the curriculum being used, and what types of accommodations an ESE student of the particular grade level would need. By signing the IEP, the individual team members are stating they met to discuss the ESE student, to develop goals and objectives and services for the student, and that they will follow up on making sure those goals and objectives are met. IEP's are updated on an annual basis. The annual IEP conference is mandatory, and failure to provide such a conference is a violation of federal, state, and School Board rules and policies. Failure to hold such a conference deprives the parents of the exceptional student any meaningful participation in determining the student's educational goals and may deprive the child of the assistance to which he or she is entitled. It also jeopardizes continued state and federal funding of the School Board's exceptional education program. Respondent was instructed, as were other teachers of exceptional students in the school district, that every IEP must be reviewed at least once a year through an annual IEP conference. Respondent was trained in how to prepare IEPs by the Bradford County School District on July 19, 20, and 21, 2005. Florida Administrative Code Rule 6A-6.03028(3)(b) requires that the school notify parents of an ESE student that an IEP meeting is scheduled prior to the IEP Team Meeting taking place. This notification is more than a formality; it is meant to insure meaningful participation by parents or guardians in the IEP process. Rule 6A-6.03028(3)(b) states as follows: (b) Parental participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following: Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and Scheduling the meeting at a mutually agreed on time and place. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. . . . * * * A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents’ home or place of employment and the results of those visits. To comply with Rule 6A-6.03028(3)(b), it is Bradford County School District’s policy to send out a Parent Notification Form 10 days prior to an IEP team meeting. A few days after the first notification was sent, a second notification is sent to the parent. After the two written notifications are sent, a phone call is made to the parent of the ESE student. Student S.B. began school in the Bradford County School District when she was in pre-K. She was identified as a student with developmental disabilities. In 2005, she was living in Richmond, Virginia, and found to be eligible for exceptional education services as a student with a developmental disability. Upon return to Florida, S.B. was enrolled in Southside Elementary on March 17, 2005. In May 2005, an IEP team met, determined that S.B. was a student with specific learning disabilities, and developed an IEP outlining the services required for S.B. Without those services, S.B. would not receive a free appropriate public education as contemplated under the Individuals with Disabilities Education Act (IDEA), or Florida law regarding the provision of exceptional education. IEPs for exceptional education students are required to be completed every year before the prior year’s IEP expires. S.B.’s next IEP was due on May 17, 2006. On February 13, 2006, S.B. enrolled in Respondent’s charter school, Believer's School of Learning, approximately three months before S.B.’s next IEP was due. There was apparently some delay in providing S.B.'s May 2005 IEP to Respondent, but the length of the delay is unclear. In order for a school district to receive the extra funding for its ESE students all the ESE students’ IEP’s must be current by "FTE week." FTE week is when the schools determine a final head count of all the students that are in attendance. The FTE week for Bradford County School District in 2006 was October 13, 2006. All the ESE students within the school district had to have their IEPs in by that date or the schools would not receive the extra funding associated with that student. If S.B.’s IEP was not turned in before October 13, 2006, Believer's School would have only received its normal funding only instead of the additional ESE funding. As of the last week of September 2006, Respondent had not completed the IEP for S.B. In late September, Respondent called Verdell Long, and asked for some assistance in preparing an IEP for a third grader. On September 28, 2006, Respondent met with Verdell Long, at Bradford County High School, during Ms. Long’s lunch break, for assistance with preparing an IEP for a third grader at her charter school. Verdell Long was a high school teacher at Bradford County High School who had worked with ESE students, with a focus on mental retardation from grades K-12. She had assisted Respondent with IEPs in the past. She understood that she was assisting with a “sample” IEP to be used as a model. However, it was Respondent’s intention to use the product created as an IEP for the student S.B. The day of the meeting Verdell Long’s computer was not working so she could not access the IEPs she had on file. She asked another high school teacher, Dr. Vivian Haynes to assist in the meeting. Dr. Haynes was an ESE teacher at Bradford County High School in September 2006. She was very experienced with preparing and writing IEPs, having just completed a doctoral dissertation which included copies of third and fifth grade IEPs. Dr. Haynes had not previously met Respondent. Dr. Haynes brought several blank “dummy” IEPs with her to the meeting in order to have examples to show Respondent. The IEP prepared at the meeting included the various components of an IEP, such as the measurable goals and objectives for a third grader, but did not include the demographic information on any student. The document prepared at the meeting did not have a student’s name or test scores on it anywhere. Respondent did not bring the student S.B. or her test scores with her to the meeting. However, neither Ms. Long nor Dr. Haynes expected to see individualized information because they did not understand that an IEP for an actual child was being prepared. Verdell Long signed the IEP as the ESE teacher, Dr. Vivian Haynes signed as the LEA, and Respondent signed as the regular education teacher. Neither Verdell Long nor Dr. Vivian Haynes was contracted with Believer's School by the Bradford County School District to provide services as an LEA representative or an ESE teacher. Both Verdell Long and Dr. Vivian Haynes believed the purpose of the meeting was to construct a model IEP in order to assist Respondent with properly preparing an IEP for an ESE student. Neither expected the document created at their meeting to be submitted as an actual IEP for S.B., or any other student, and neither considered the meeting to be an IEP team meeting. Neither Verdell Long nor Dr. Vivian Haynes was shown a Parent Notification Form indicating that their meeting was to be an IEP team meeting. Neither would have signed the IEP if they had seen such a form because they did not believe that an IEP team meeting was being conducted. After the meeting on September 28, 2006, Respondent took the IEP form prepared with the help of Ms. Long and Dr. Haynes, and inserted information specific to S.B. She then submitted the form as S.B.’s IEP and turned in to the Bradford County School District. Submitted with the IEP form was a document which purported to be the Notification of Meeting Form for the IEP team meeting. Only one notification is referenced. The form was dated September 15, 2006, and identified Dr. Vivian Haynes and Verdell Long as participants in the meeting, notwithstanding Respondent's acknowledgement that she did not meet Dr. Haynes until September 28, 2006, and did not know until that time that Dr. Haynes would be participating in the meeting. The form also indicated that the IEP meeting would take place at the Believer's School, as opposed to the Bradford County High School, where the meeting between Respondent, Ms. Long and Dr. Haynes took place. There is no other indication of other attempts of notification. The signature line reserved for a parent or legal guardian is signed by a Rudolph Williams and dated September 29, 2006, the day after the meeting took place. Respondent claims that Mr. Williams is S.B.'s stepfather. However, there is nothing in the Bradford County School District's records to indicate that Mr. Williams is a parent or legal guardian of S.B., and school district officials were not aware of anyone by that name living in the home. By her own admission, Respondent did not keep "official records" for any of her students, including ESE students. She was not particularly concerned with who signed the IEP, because she apparently considered it to be simply a matter of paperwork to be filed with the School District. In her view, the person responsible for ensuring that a child is receiving the appropriate education is her teacher, regardless of the directives in the IEP. She felt that some of the things identified as required simply could not be done at a school her size. She did not consider the role of the LEA and the ESE teacher on the IEP to be all that important. To her, the real responsibility for the child's education lay with the teacher who worked with her on a daily basis. S.B. was later withdrawn from Believer's School and now attends Starke Elementary School. Believer's School has since closed and is no longer operating as a charter school.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts Two through Seven and dismissing Count One of the Administrative Complaint; imposing a fine of $500; suspending her certificate for one year and placing Respondent on probation for a period of three years. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009.
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent.
Findings Of Fact At all times material to this case, the Respondent was a certified teacher, employed by the Petitioner under a professional services contract and working at the Lehigh Acres Middle School. On or about February 6, 2002, the Respondent received two written reprimands from Gerald B. Demming, the school principal, related to the Respondent's behavior towards students. The first written reprimand related to incidents occurring on January 17 and 22, 2002, during which the Respondent verbally disparaged students, calling them "sorry" and "no good" and advising them that they would be unsuccessful "in life." The second written reprimand related to an incident on February 5, 2002, during which the Respondent apparently mocked a student in the classroom. In meeting with the Respondent, Principal Demming clearly expressed his concern regarding the Respondent's behavior towards students, and advised that such actions were unacceptable and were viewed as violations of the Principles of Professional Conduct. The Respondent signed and received copies of the written reprimands. The written reprimands were not the first time such concerns had been addressed with the Respondent. During the 2000-2001 school year, Mary Ann Moats, then employed as the Lehigh Acres Middle School principal, had verbally expressed concerns of a similar nature, specifically the use of derogatory language directed towards students (such as "stupid," "no good," and "ignorant"). Students became so unhappy with the Respondent's behavior that, on one day, an entire classroom of students walked out of the Respondent's class and walked to Principal Moats' office to express their dismay with his treatment of them. She attempted to resolve the dispute and urged the Respondent to modify his behavior. During Ms. Moats' employment as principal, the Respondent's behavior toward students continued to be of concern. Complaints were received from students, parents, and from other faculty members. She met more than once with the Respondent to discuss matters raised by the complaints. A written memo dated December 5, 2000, specifically related to allegations of verbal abuse directed towards students was provided to and signed by the Respondent. Further, such concerns were identified in paragraphs 5-7 of the Respondent's 2000-2001 performance evaluation dated April 9, 2001, where he received "Below Expectations/Unsatisfactory" marks in several areas including: Human Development and Learning: Uses an understanding of learning and human development to provide a positive learning environment which increases student achievement and supports the intellectual, personal and social development of all students. Learning Environment for Student Achievement: Creates and maintains a positive learning environment which fosters active engagement in learning, social interaction, cooperative learning and self motivation and manages student behavior; and Communication for Student Achievement and Parental Satisfaction: Uses effective communication techniques with students, parents (i.e., one-to-one telephone calls, conferences, newsletters, etc.), and all other stakeholders. Despite the clearly expressed concerns related to the Respondent's behavior towards students, the behaviors generally continued during the 2001-2002 school year, and culminated on February 13, 2002, in two specific events that resulted in the Petitioner's decision to terminate the Respondent's employment. During the 2001-2002 school year, the Respondent was assigned to teach a seventh grade class during the first period. K.R. was a student in the Respondent's first period class, and generally was an "A" or "B" student. On February 13, 2002, K.R. returned to the Respondent's first period class after more than a week of absence related to a family vacation. Prior to going on vacation, K.R. had obtained one week of advance class assignments in order to maintain her school work while on vacation, but the vacation apparently extended beyond what was originally planned. During the time for which K.R. had not obtained class assignments, the Respondent directed the students to prepare speeches related to Black History Month. The speech assignment was written on the chalkboard, as was the Respondent's usual practice, but had not been assigned at the time K.R. left for vacation. After class started, K.R. began to repeatedly question the Respondent about the assignment and went so far as to interrupt other students as they presented their speeches. The Respondent told K.R. to "shut up," called her "ignorant," and directed K.R. to go to a table at the rear of the classroom, remarking to the other students in the class that they did not want to be like K.R. Thereafter K.R. sat in the back of the classroom and cried. When class ended, the Respondent required K.R. to remain in his classroom while he called her mother and reported the behavior to her. K.R. spoke briefly to her mother during the call, but otherwise remained in the classroom, during which time other students began to enter for the second period class. When K.R. arrived at her second period class, she was still upset and her teacher sent her to the office to speak to a school official, at which time, concern related to the Respondent's behavior was apparently heightened. During the 2001-2002 school year, the Respondent also taught a seventh grade class during the sixth period. M.C. and J.A. were students in the Respondent's sixth period class. At the beginning of the period, M.C. was standing near the Respondent's computer located close to his desk. Attempting to quiet the class, he instructed the students to take their seats and settle. Standing behind M.C., he placed his hands on her shoulders and gently pushed her towards her chair, leaning down to tell her that when he told the class to sit down he intended for her to be seated as well. M.C. testified that when the Respondent told her to take her seat, the Respondent kissed the back of her neck. The Respondent denies kissing the student. The evidence related to the alleged kiss is not persuasive. The Respondent asserts that at the time of the alleged kiss, he was advising M.C. that she was part of the class and his instruction to the class to settle was applicable to her. M.C.'s testimony related to the Respondent's statement corroborates the Respondent's recollection and indicates that she understood that he was including her in his instruction to the class to settle. Of the students who were in the classroom at the time and who testified at the hearing, only one student testified that she saw the alleged kiss. Although she testified that she saw the kiss occur, her recollection of what the Respondent said to M.C. at the time of the alleged kiss is completely different from the statement claimed by the Respondent and corroborated by M.C.'s recollection. Other students in the classroom who testified did not recall seeing the Respondent kiss M.C. Although there is no evidence suggesting that such a kiss would have been typical of the Respondent's interaction with a student, no student recalled any type of noise or verbalization from the other students at the time of the alleged kiss. There was some evidence presented indicating that M.C.'s hairstyle on that day would have made it difficult to kiss her neck without having moved her hair, and suggesting that in leaning down to speak to M.C., the Respondent spoke closely enough to cause her hair to brush her neck. M.C.'s recollection of what hairstyle she wore on that day was uncertain. In any event, M.C. believed she was kissed and was unhappy about it. She eventually requested and received a bathroom pass from the Respondent, but after leaving the classroom, she went directly to the school administration office and reported the incident. After speaking to M.C., school personnel called the Respondent on the classroom telephone and asked him to send another student, J.A., to the office for early dismissal. After arriving at the office, J.A. was asked whether she had witnessed the incident. At that time, she was apparently advised not to discuss the matter with anyone else. While in the office, M.C. asked J.A. to return to the Respondent's classroom and to retrieve M.C.'s belongings. J.A. was permitted by assistant principal to return to the Respondent's classroom and to retrieve M.C.'s possessions. A teacher who had been in the office, Kevin Richter, escorted J.A. through the school on her way back to the Respondent's classroom. Mr. Richter then returned to his classroom. After arriving back at the Respondent's classroom, J.A. entered and began to collect M.C.'s belongings. The Respondent asked J.A. to tell him what she was doing. Believing she had been instructed not to discuss what she was doing, she did not respond to him, but finished collecting the items after which she walked out of the classroom and into the hallway. The Respondent followed J.A. into the hallway, and began yelling at her for being "disrespectful." J.A. began yelling back, telling the Respondent she was doing what she was asked to do. Apparently the confrontation between the Respondent and J.A. continued for a period of time and at sufficient volume as to attract the attention of a student affairs specialist in the office across the hallway as well as Mr. Richter, who by that time was two hallways removed from the scene. Mr. Richter, hearing the commotion and assuming that some students were preparing to fight, ran to the commotion and realized that the yelling was coming from the Respondent and a student. At that point, Mr. Richter went to the school office and summoned Principal Demming. After the yelling had subsided, the principal contacted the school district's personnel office and requested an investigation of the day's events. The investigation ensued and eventually resulted in the Petitioner's decision to terminate the Respondent's employment. The Respondent asserts that he was not sufficiently placed on notice of the behavioral issues to suggest that termination of employment is warranted. The evidence establishes that the Respondent received notice sufficient to comply with the School Board's NEAT process (Notice of deficiencies, Expectations, Assistance, and Time to improve). The Respondent asserts that the students were disrespectful and presented disciplinary problems. The Respondent had a classroom telephone and other means of communicating with school officials if a disciplinary situation became unmanageable. There is no credible evidence that any of the students addressed in this Recommended Order presented disciplinary problems that could not be managed through the normal policies and practices of the school, including referrals to school officials.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County enter a Final Order terminating the employment of Roger J. Phillips. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. _____ WILLIAM F. QUATTLEBAUM 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 2nd day of August, 2002. COPIES FURNISHED: J. Paul Carland, II Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Robert J. Coleman, Esquire Coleman & Coleman, P.A. 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Dr. John W. Sanders, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 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
The Issue Whether Petitioner has just cause to terminate Respondent's employment with Petitioner due to unsatisfactory performance in accordance with Subsection 1012.34(3) (d), Florida Statutes (2009) .*
Findings Of Fact 1. Petitioner is the duly-authorized entity responsible for providing public education in Manatee County, Florida. 2. Respondent is employed as a teacher by the Petitioner, pursuant to a professional services contract. At the beginning of the 2007-2008 school year, Respondent began working as a sixth-grade mathematics teacher at Buffalo Creek Middle School (Buffalo Creek). The principal of Buffalo Creek was Scott Cooper (Cooper). During the 2007-2008 school year, Janet Roland (Roland) was the assistant principal at Buffalo Creek. 3. In or around December 2007, Respondent met with Cooper to discuss a parent telephone call. Cooper received a complaint from a parent about the grade the parent’s child received in Respondent's class. During the meeting, Cooper asked Respondent to detail her grading system. Respondent informed Cooper that she used a point system and explained how the system was beneficial to the students in her class, most of whom were below grade level and did not test well. 4. During the meeting in December 2007, Cooper logged into Respondent’s Pinnacle account in her presence and changed the weighting of her grades in various ways to see how the change would affect the students’ grades. Respondent did not agree to weight her grades and continued to use a point system. 5. Later in December, Respondent noticed that some of her grades were changed. She did not tell anyone of the alterations, but merely changed the grades back to be accurate. However, Respondent noticed that her grades where changed a second time and contacted the Manatee County School District’s (District) grade book administrator, Don Taylor (Taylor), out of concern. Taylor looked into the matter and, eventually, referred it to the District’s Office of Professional Standards, which conducted an investigation. The result of the investigation, which concluded in or around July 2008, showed that Cooper logged into Respondent’s Pinnacle account, without her knowledge or consent, and altered many of her grades. 6. Cooper was responsible for counseling teachers regarding performance issues. He walked through Respondent’s class every two-to-four weeks, but did not discuss with Respondent any other alleged performance deficiencies during the 2007-2008 school year. 7. Cooper was found guilty of misconduct by the District and was given a letter of reprimand. Cooper was soon thereafter demoted to a teaching position. During the first week of school of the 2009-2010 school year, Cooper apologized to Respondent for altering her grades. 8. Prior to becoming employed at Buffalo Creek, Respondent taught language arts at Lincoln Middle School (Lincoln). During her tenure at Lincoln, Respondent received all positive evaluations and was not informed of any perceived deficiencies in her performance. 9. During the 2008-2009 school year, Petitioner adopted the Manatee Core Curriculum (MCC) as a standardized curriculum to be implemented in the District’s four core subjects: math, language arts, social studies, and science. The MCC aimed to promote a consistent curriculum among the schools within the District, many of whom serve a transient population. The MCC is composed of prescribed units of study intended to promote student achievement of specific educational benchmarks, which are established by the state and assessed through statewide FCAT testing. Each unit is prescribed a specific duration of study to ensure that all units are covered during the course of the academic calendar and to ensure that the students are provided an opportunity to learn the skills and information required for promotion to the next grade level. In addition to traditional assessments such as homework, quizzes, and tests, students are required to complete a Unit Performance Assessment (UPA) at the end of each unit to assess progress and understanding of the covered concepts. 10. Petitioner has also adopted a standardized grade book, called Pinnacle, which all teachers in the District are required to maintain. Pinnacle is a computerized grade book system, in which teachers are required to enter all grades, assignments, and assessments provided to the students during the school year. Pinnacle can be accessed by both parents and administrators and was adopted by Petitioner as a means of communicating students’ progress to parents by providing instant and up to date access to their students’ grading history throughout the various stages of the MCC. The main benefit of Pinnacle is that it provides both teachers and parents a tool for identifying, in a timely manner, those students who may be having difficulties achieving the benchmarks evaluated by the MCC. Teachers are required to enter all of the students’ assessments in a timely manner in order to maintain an accurate and up-to-date picture of the students’ progress. District policy does not require weighting, but does require that grades be input into Pinnacle. Petitioner’s expectation is that teachers enter grades within two weeks of a given assessment. Thus, Pinnacle became a source of communication between parents and teachers. 11. Unfortunately, very few of the parents of Petitioner’s teachers requested a username, and other identifiers, and, thus, did not have access to the tool. 12. During the 2008-2009 school year, Petitioner employed Respondent, under a professional services contract, as a sixth- grade mathematics teacher at Buffalo Creek. The principal of Buffalo Creek during the 2008-2009 school year continued to be Cooper, and the newly-appointed assistant principal was Sharon Scarbrough (Scarbrough). Scarbrough was assigned the responsibility of evaluating the performance of certain teachers, including Respondent. Respondent was included in Scarbrough’s responsibility in order to avoid the appearance of impropriety. 13. During the first quarter of the 2008-2009 school year, Scarbrough identified certain issues relating to Respondent's performance, including the inordinately high failure rate among students in Respondent’s class. Several parents requested the transfer of their students out of Respondent’s class due to concerns that the students were not learning. 14. In grading her students, Respondent assigned different point values to each type of student assessment. Tests and UPAs were worth 100 points each, quizzes were worth 50 points each, and homework was worth ten points. As a teacher, Respondent had discretion as to how many tests and quizzes to administer, as well as how much homework she assigned and what point value to assign each assessment. 15. UPAs are project-based assessments given at the end of each unit of the MCC. UPAs are required by the MCC. 16. Respondent generally assigned homework to her students two or three times a week. When the students returned to class, they would grade their own homework for accuracy, while Respondent went over the answers on an overhead (ELMO) projector. Respondent required that the students redo the problems that they got wrong on the homework while they were reviewing it. The students then passed the homework forward to Respondent, who would grade the homework for effort, and would eventually log the grades in Pinnacle. Only the students who completely failed to complete the assignment were given a zero. 17. In addition to Pinnacle, Respondent communicated with the parents of her students through an agenda (initialed daily by Respondent and parents), progress reports, grading their own homework, and grade reports sent home every couple of weeks for parents’ signature. 18. All teachers at Buffalo Creek are required to prepare and have available for inspection, on the Friday before the next week, weekly lesson plans. They are critical not only as an established agenda to assist the teacher in maintaining pace with the MCC, but also as a mechanism to assist the administration in identifying those teachers who are not maintaining the required pace. 19. Scarbrough noted that Respondent was not submitting lesson plans in a timely fashion. Scarbrough engaged Respondent in informal conversations concerning these issues on at least three occasions in the fall of 2008. Respondent admitted to turning in her lesson plans late on occasions, but explained that she was always prepared for class and that she kept more detailed plans in her own lesson plan book. 20. During this same time period, Petitioner’s mathematics curriculum specialist, Joseph McNaughton (McNaughton), noted that Respondent had fallen well behind the pace for instruction established by the MCC. The MCC prescribed ten units of curriculum to be covered in sixth-grade math classes at set times during the school year. By the end of the first quarter, Respondent had completed only one of the ten units and had fallen 25 to 30 days behind the instructional pace established by the MCC. Respondent explained that she was behind in the curriculum due to the fact that: (1) it was her second year teaching math, (2) it was the first year of the MCC, (3) the unit itself included many components, and (4) many of her students lacked the requisite basic skills to comprehend the lesson. 21. On October 28, 2008, Scarbrough held a formal conference with Respondent, identifying various concerns with Respondent’s performance and addressing her expectations for improvement. Scarbrough noted that Respondent submitted untimely lesson plans eight of the ten weeks and informed Respondent that she was expected to submit her lesson plans the Friday before the week’s lessons are taught. Scarbrough addressed the fact that Respondent only completed Unit 1 of the McC during the first quarter and that Respondent was well behind the required pace of instruction. McNaughton was asked to assist Respondent in getting caught up with the curriculum. Respondent expressed a concern to McNaughton that the students did not possess the requisite knowledge coming in from fifth grade to complete the unit. 22. Scarbrough noted various omissions and inconsistencies in Respondent’s Pinnacle grade book entries and informed Respondent of the expectation that her grade book be timely and accurately maintained. Respondent admitted to failing to input the grades of approximately 23 students who had recently transferred to her class. However, she explained that the failure to input the grades was due to the failure of the original teachers to give the grades to Respondent, despite her repeated requests for the information. 23. Scarbrough noted that 59 percent of Respondent’s students received a “D” or “F” for the first quarter, which Scarbrough characterized as “an excessively high number of students not being successful” in comparison with other sixth- grade classes. Many of the students receiving failing, or near failing, grades in Respondent’s class were successful in their other subjects. Respondent admitted that she occasionally failed to comply with the District’s policy requiring teachers to input grades within two weeks of the assessment, but she 10 generally adhered to the policy. Further, teachers often used an X or Z to represent grades not assigned a numeric value in their grade books. Respondent explained to Scarbrough that in certain reports, the X or Z did not print and appeared to be blank. 24. Scarbrough noted that Respondent had failed to enter a grade for Unit 1, which was a requirement of the MCC. Respondent administered the UPA Unit 1 during the last week of the first quarter and input the grades into Pinnacle. Scarbrough also informed Respondent that grading and record- keeping are essential to basic teacher skills. Respondent denied having 59 percent of her students receiving a “D” or “F” in her class. She explained that the grades were inaccurate, due, at least in part, to the lack of transfer grades from the other teachers. 25. As a result of these concerns, Scarbrough issued Respondent a formal notice of return to documentation, dated October 28, 2008. Documentation is a procedure utilized by Petitioner to allow administration to formally observe its professional service contract employees at a date and time determined by the employee and to draft performance evaluations. The purpose of observing Respondent was to identify the root cause of her performance issues, so that Scarbrough could assist Respondent to improve upon them. Respondent understood that she 11 was being placed on documentation due to the issues outlined in the letter, dated October 28, 2008, from Scarbrough. She began an attempt to remedy the perceived deficiencies immediately by working with two resource teachers. Respondent also amended her policy of not accepting late work from students in an effort to boost the students’ grades. She also put together a packet of work and sent it home with the students over winter break, conducted an academic “boot camp,” asked administration to meet with parents, and asked Scarbrough to send out an automated telephone message to parents to make them aware of the makeup work. In addition, Respondent input her grades into Pinnacle in a timely manner. 26. Petitioner also provided Respondent professional development coaching with Specialist Amy Booth (Booth), who was hired by Petitioner to assist instructional staff with various issues relating to grade book maintenance, organization, time management, and execution of daily lessons, and Peggy Wolfe (Wolfe), who was hired by the Manatee Education Association (MEA) for the same purpose. Upon Wolfe’s request, Scarbrough agreed to delay formal observation of Respondent, until March of 2009, to allow Booth and Wolfe additional time to assist Respondent in improving her performance issues before being formally observed. 12 27. Petitioner also provided Respondent the opportunity to work directly with McNaughton to develop strategies and techniques for maintaining the instructional pace required by the MCC. McNaughton assisted Respondent in making revisions to the MCC in an effort to cover all the instructional units before the end of the school year. 28. McNaughton intended to present a “model lesson” to Respondent's classes while Respondent observed. The model lesson would provide Respondent the opportunity to observe beneficial instructional techniques demonstrated by McNaughton, while providing McNaughton an opportunity to assess whether any nuances existed within the classroom, or among Respondent's students, that might reveal the cause of the issues related to the instructional pacing and lack of student achievement. 29. At the request of Respondent, however, the model lesson was cancelled. Instead, Respondent accompanied McNaughton to another middle school within the District to observe another teacher present a lesson. 30. In January or February of 2009, Scarbrough conducted her first formal observation of Respondent. Students are assigned “bell work” at the start of each class, which is “start up” work for students to complete while the teacher performs administrative tasks such as attendance. Bell work assignments should typically take five-to-ten minutes to complete. 13 Respondent spent nearly half of the class period assisting her students complete bell work, which left only half of the class period for the scheduled instruction. Respondent did not complete the scheduled instruction. 31. On February 24, 2009, Cooper and Scarbrough held a formal conference with Respondent to discuss continued concerns with her performance. Respondent's Pinnacle grade book entries indicated that 66 percent (69/104) of the students in Respondent's combined classes were receiving an “F” at the time of third-quarter progress reports. Respondent’s Pinnacle grade book entries also revealed that Respondent was not recording student assessments in a timely manner and that Respondent failed to enter grades of any type for the first half of the third quarter. Cooper and Scarbrough reiterated Petitioner's expectation that students’ grades be entered within two weeks of a given assignment and that frequent and ongoing assessment of students’ progress and timely feedback to students are essential components of effective teaching and vital for student learning. Cooper and Scarbrough also reiterated the expectation that lesson plans be submitted in a timely manner, as Respondent continued to fall short of this expectation. 32. On March 2, 2009, Scarbrough conducted another formal observation of Respondent. Scarbrough noted that Respondent was still well behind the required MCC pacing, despite McNaughton’s 14 assistance and revision of the curriculum. Respondent's Pinnacle grade book entries demonstrated a lack of variety in the type of assessments utilized by Respondent to monitor students’ progress and failure on the part of Respondent to record assessments in a timely manner. However, on the appraisal form, Scarbrough indicated that Respondent had successfully demonstrated each of the requisite areas, except Area 7, regarding using technology in instruction. Scarbrough marked they are “not yet demonstrated” due to a question as to how often Respondent entered her grades into Pinnacle. 33. On March 24, 2009, Scarbrough conducted a third formal observation of Respondent. Respondent took nearly the entire class period to review one problem and held the students after the end of class to assign homework. During their post- observation conference, Scarbrough emphasized the need for Respondent to utilize a lesson plan as a schedule of topics to cover to assist Respondent in maintaining pace with the MCC. 34. On March 25, 2009, Cooper issued Respondent a formal written reprimand for “failure to meet expectations for curriculum implementation, and for lack of adequate, timely and appropriate student assessment, and grade reporting.” Respondent remained three units behind the pacing required to successfully complete the MCC by the end of the school year, which placed her students at risk of not acquiring the math 15 skills needed to advance to the next grade level. Respondent failed to record expected UPA grades in her Pinnacle grade book. Cooper reiterated that completion of a UPA for every unit is a “non-negotiable requirement for implementation of the [MCC].” Respondent failed to adequately assess student progress through tests and quizzes and continued to record grades in an untimely manner. Cooper stated that the high failure rate among students in Respondent’s classes was directly related to these deficiencies and that further recurrence of the actions identified would result in further discipline. 35. On April 2, 2009, Scarbrough placed Respondent on a 90-day probation, due to unsatisfactory performance. Despite instruction and modification of the curriculum from McNaughton, Respondent failed to complete required UPAs and remained three units behind the pacing required by the MCC. Respondent demonstrated poor time management, lesson planning, and lesson execution, as evidenced by her observed inability to complete her daily lessons within the allotted class time and her failure to maintain pace with the MCC. Respondent performed little or no assessment of her students’ progress during the third quarter through homework, quizzes, and tests, as evidenced by her Pinnacle grade book entries. 36. Respondent’s students continued to receive an inordinate number of failing and nearly failing grades. In the 16 first quarter of the 2008-2009 school year, 59 percent of Respondent's students received a final grade of “D” or “F.” In the second quarter of the 2008-2009 school year, 62 percent of Respondent’s students received a final grade of “D” or ‘F.” In the third quarter of the 2008-2009 school year, 47 percent of Respondent’s students received a final grade of “D” or “F." The inordinate number of students failing to succeed was particularly troubling since Respondent's class load was the lowest on campus, and her class size average was the smallest in comparison to other core classes. Numerous parents indicated that Respondent was not keeping them adequately informed of students’ progress and requested that their students be transferred from Respondent’s class. Parents complained that Respondent failed to respond to telephone calls and e-mails ina timely manner. 37. Scarbrough provided Respondent written notice of these deficiencies and of the procedural requirements relating to the probationary period. Scarbrough also provided Respondent a Formal Improvement Notice, reiterating her performance deficiencies and expectations for improvement and identifying the assistance available to her, including continued coaching and instruction from Booth, Wolfe, and McNaughton. Scarbrough met with Respondent, Booth, and Wolfe to formulate strategies for Respondent’s continued evaluation. 17 38. On April 24, 2009, Scarbrough conducted a fourth formal observation of Respondent. Respondent again took nearly half of class to complete bell work and utilized only minimal time for actual instruction. Scarbrough noted in her post- observation conference that Respondent needed to reduce/eliminate this time management issue. Respondent also failed to maintain her Pinnacle grade book entries in a timely manner. 39. On May 20, 2009, Scarbrough conducted a fifth formal observation of Respondent. Respondent failed to continue to adequately assess students’ progress and to provide a variety of assessments, as evidenced by the fact that she had given only one quiz and completed only one UPA at the time of the observation. Respondent continued to enter assessments in her Pinnacle grade book in an untimely manner and failed to enter any grade for UPA Unit 7. Respondent continued to submit her lesson plans in an untimely manner. 40. Scarbrough observed Respondent on May 20, 2009, and made notations on the teacher appraisal form. After this observation, Scarbrough marked Respondent demonstrated all of the requisite areas aside from Areas 10 and 14, regarding demonstrating improvement in students’ performance through assessment and adhering to the Code of Ethics and Principles of Professional Conduct, respectively. Scarbrough felt Respondent 18 did not demonstrate Area 10, because Respondent had administered only one quiz and one UPA in a month, and the quiz grades were not entered into Pinnacle timely. Scarbrough marked Respondent deficient in Area 14, because she did not turn in all of her lesson plans in a timely manner. 41. On June 2, 2009, Scarbrough completed the Teacher Performance Appraisal Feedback Summary Form, summarizing Respondent’s performance during probation. Scarbrough found that Respondent demonstrated all areas with the exception of Areas 10 and 14. She noted that Respondent still has some areas to improve upon such as lesson planning, assessments, and grading. Scarbrough gave her opinion that Respondent had not improved upon her identified deficiencies and that her performance remained unsatisfactory. 42. However, on cross-examination, Scarbrough reluctantly agreed that Respondent did improve in many areas outlined in the probation notice, including proper use of daily agenda and bell work. The number of “D’s” and “F’s” in Respondent’s classes decreased. Scarbrough also admitted that Respondent completed the MCC by the end of the year, without skipping any units. She also admitted that after receiving only two complaints from teachers whose classrooms were located a far distance from Respondent, she spoke to Respondent about letting her students out on time, and the situation was remedied. Scarbrough 19 admitted that she did not compare the amount of assessments administered by other sixth-grade mathematic teachers when deciding that Respondent did not administer enough tests or quizzes. 43. Effective August 18, 2009, Respondent voluntarily transferred to Electa Lee Magnet Middle School (Electa Lee), upon the retirement of another teacher. Respondent received approval for transfer up the chain of command to the superintendant. 44. The law provides that a teacher who holds a professional services contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. 45. In light of Respondent’s transfer, Scarbrough met with Scot Boice (Boice), principal of Electa Lee, and Darcy Hopko (Hopko), Petitioner’s director of Human Resources, to review Respondent’s performance issues, the process associated with the statutory probationary period, and the deadline for the end of probation. Teachers were required to report for the 2009-2010 school year on August 18, 2009. At the meeting, Scarbrough, Boice, and Hopko determined that Respondent’s probation expired on September 19, 2010. When Respondent transferred to Electa Lee, she had completed 58 of the 90 days’ probation. He also 20 reviewed only the letter placing Respondent on probation. He did not review her personnel file or other relevant documents. 46. Boice assigned Respondent a position as a sixth-grade math teacher at Electa Lee. On August 25, 2009, Boice and Electa Lee Assistant Principal Wally Hunter met with Respondent to discuss her continued formal observation and the remaining probationary process. 47. On September 3, 2009, Boice again met Respondent to schedule her formal observation. Respondent chose September 10, 2009, at 1:30 p.m., as the date and time for Boice to observe her. 48. Prior to the September 10, 2009, formal observation, Boice did a few walkthroughs of Respondent’s classroom, but never for more than five minutes. 49. On September 10, 2009, Boice conducted his formal observation of Respondent. Boice noted that Respondent took 26 minutes to complete administrative tasks and to assign bell work at the start of class. Respondent did not begin the scheduled lesson until the final ten minutes of class. Boice also observed Respondent releasing students from class late, because they were unable to complete the lesson during the allotted class time. 50. Boice was unable to sufficiently observe some of Respondent’s identified performance deficiencies due to the 21 limited time Respondent worked at Electa Lee prior to the end of her probation. For example, Boice was not able to sufficiently observe the manner, variety, and adequacy of the assessment tools used by Respondent to evaluate student progress, such as homework, quizzes, and tests. Respondent had not yet completed UPA Unit 1 at the time of the formal observation. Respondent provided Boice, as an example of her assessment of the students, a short, handwritten quiz composed of only four or five questions. Boice determined that the quiz was not adequate, but did not give her an opportunity to correct the problem. 51. Boice was also unable to sufficiently observe Respondent's performance in communication with parents, including her timely maintenance of the Pinnacle grade book. Boice informed Respondent that training on proper use of technology in assessment of students, including Pinnacle training, would be provided to all staff at Electa Lee during in-service on September 25, 2009, six days after the 90-day probationary period ended. 52. Despite her prior observed deficiencies, during her probation, in the area of Pinnacle, Respondent failed to attend the in-service training. However, Respondent also failed to schedule her absence in advance, but stated that she was on campus that day, but did not have access to a computer, so she did not attend the in-service. 22 53. On October 1, 2009, Scarbrough and Boice authored a letter to the superintendent of schools, detailing Respondent’s continued unsatisfactory performance. Based on their combined observations and assessments, Scarbrough and Boice concluded that Respondent was still not competent in planning, implementing, and presenting effective lessons and communicating effectively with parents. 54. On October 13, 2009, the superintendent recommended the termination of Respondent’s employment pursuant to Subsection 1012.34(3)(d), Florida Statutes. 55. In the letter to the superintendent, Boice and Scarbrough relied almost exclusively on Respondent’s past performance, in coming to the conclusion that Respondent had not satisfactorily corrected her performance deficiencies. The reasons cited in the letter were those identified in the initial April 2, 2009, probation letter, including lesson planning, students’ assessment, instruction/presentation of subject matter, and communication. The basis for purported deficiencies was Respondent's behavior at Buffalo Creek and, to a much lesser degree, the short observations while Respondent was at Electa Lee. 56. Boice conducted a single observation of Respondent, of less than one class period, on September 10, 2009. Boice took notes regarding the observation on a Teacher Performance 23 Appraisal Feedback Summary Form and provided a copy of that form to Respondent at a meeting the following day. Boice marked that Respondent had demonstrated four of the 14 areas and that she did not demonstrate three areas. Boice felt he did not have enough information in the short time he observed Respondent to form an opinion as to the other seven areas. 57. Boice marked that Respondent did not demonstrate Area 1 because the bell work her students completed took a long time to complete, due, in part, to the fact that Respondent walked up and down the aisles to initial the students’ agendas. Boice also marked Respondent deficient in Area 7, regarding using technology in instruction, because she only employed the use of an ELMO and Pinnacle. Finally, Boice marked Respondent as not having demonstrated knowledge and enthusiasm for the subject matter based upon his understanding that she tolda student that she did not know how to complete a problem. 58. At the meeting with Boice to discuss his notes regarding the observation, Respondent told Boice that she believes she promotes the students’ independent development and learning and that she is extremely enthusiastic about math. Respondent denied having told a student that she did not know how to complete a problem, but explained that she told the class she would calculate an answer and have it for them in the next class period. Respondent further explained that she used an 24 ELMO and Pinnacle during the class and that she did not have computers present in the classroom to use other types of technology. While working at Electa Lee, Respondent received only one parent concern. After a parent-teacher conference, the parent appeared satisfied. Respondent requested that Boice observe her for a second time, but Boice declined and indicated that they were on a timeline. 59. The administrators at Buffalo Creek and Electa Lee had never put any other teacher on performance probation other than Respondent. Cooper and Roland each testified that they did not believe Respondent was incompetent during the 2007-2008 school year. Cooper stated that during his walkthroughs during the 2008-2009 school year, he did not witness any behavior by Respondent that made him feel she was ineffective or having any problems. McNaughton also testified that he did not observe any behavior by Respondent that would lead him to believe she was incompetent or ineffective. 60. The District expected the FCAT math scores of sixth- grade students to be lower after implementation of the MCC. Students at Electa Lee in 2008-2009 followed that pattern, and their scores were lower than the previous years’ scores. The summaries provided by the District showed that the number of students ranked at a level one, who were in fifth grade in 2008, increased by 13 percent by the time they took the FCAT in 2009. 25 Also, the number of students in that same group who were ranked at level four decreased 11 percent during that same time. Further, the Student Dashboard reports showed that overall, Respondent’s students at Eletra Lee were improving their math FCAT scores from the previous year (comparing previous FCAT scores to first-quarter benchmark scores). 61. Many other teachers turned their lesson plans in late while working at Buffalo Creek. Further, Respondent did not teach any advanced classes during 2008-2009 or 2009-2010 school years. Of all of Respondent’s students during the 2008-2009 school year, she had two students who were ranked at a level four on a scale of one to five. The rest of the students were ranked at a three or lower. 62. Other mathematics teachers in the District fell behind during the first year of the MCC, including every mathematics teacher at Electa Lee. Pacing, although it was described as “suggestive,” was treated as mandatory to Respondent. 63. The purpose of performance probation is to allow a teacher an opportunity, through coaching and other assistance, to remedy any performance deficiencies. 64. At the hearing, under cross-examination, Boice testified that he had no problem with Respondent inputting grades or otherwise using the Pinnacle online grade book. Boice also testified that Respondent's grade distribution was 26 acceptable and that he did not have a problem with her not having her lesson plans complete in a timely manner. 65. Respondent weighted her grades while working at Electa Lee. The Grade History Verification report dated September 1, 2009, shows that ten of 80, or 12 percent, of Respondent’s students were earning a “D” or “F” at that point. 66. Boice testified that Respondent did not have any problems in her assessment of students and that Respondent was not having trouble keeping up with the MCC during her time at Electa Lee. In general, Boice found that Respondent’s grading and recordkeeping were acceptable. He also found that Respondent was working within the guidelines of the UPA Unit 1 and the MCC. 67. Boice did not consider extending the probationary period to allow Respondent an opportunity to establish that she had remedied all of the perceived deficiencies in her performance. Instead, he deferred to the information provided to him by Scarbrough for the prior year and related Respondent's present performance in August and September 2009 to her past performance at Buffalo Creek. This was clearly wrong. Respondent appeared to have made significant progress in remedying her performance deficiencies. Boice’s conduct short- circuited that progress and did not permit a thorough observation to be complete before recommending termination. 27
Conclusions For Petitioner: Brian Ussery, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. Post Office Box 639 Tampa, Florida 33602 For Respondent: Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order that: (a) finds that Petitioner has not proven that Respondent has not satisfactorily corrected the performance deficiencies noted against her; that, (b) Respondent’s contract be reinstated; and that (c) Respondent be awarded back salary, plus benefits, to the extent these accrued during the suspension period. DONE AND ENTERED this 19th day of August, 2010, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2010. 39
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
