The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background of this Proceeding This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb." As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force. Alleged Incidents Giving Rise to Charges S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/ S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb." Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit. Respondent's Defenses Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb. Findings of Ultimate Fact Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb." Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2012.
The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2015.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against Respondent on the basis of alleged misconduct which is set forth in a three count Administrative Complaint. The misconduct alleged consists primarily of assertions that the Respondent used various forms of corporal punishment on her students and that she also engaged in verbal abuse of her students.
Findings Of Fact The Respondent currently holds Florida teaching certificate number 151121, covering the area of elementary education. The certificate is valid through June 30, 1995. During the 1990-1991 school year and during the 1991-1992 school year, the Respondent was employed as a teacher at Charles R. Drew Elementary School in the Dade County School District. In January of 1992, the Respondent threw a wooden ruler at A. S., who was a minor male student in her class. The ruler hit A. S. in the face and left a scratch on his face. This incident took place in class in the presence of other students in the class. During the 1991-1992 school year, the Respondent pinched A. S., a minor male student, on the ear in front of the other students in the class. During the 1991-1992 school year, the Respondent struck L. W., a minor female student, with a ruler on her hands and on her legs. The ruler left marks on L. W.'s hands. Student L. W. cried as a result of being struck with the ruler and she felt sad. During the 1991-1992 school year, the Respondent on several occasions used offensive and indecent language in the classroom, sometimes directing such language towards her students. The offensive and indecent language included such words as "fuck," "damn," "bitch," and "ass." During the 1991-1992 school year, the Respondent used tape to restrain M. S., a minor male student. Specifically, the Respondent taped student M. S.'s mouth closed, taped his arms to the arm rests of his chair, and taped his feet to the legs of his chair. During the 1991-1992 school year, the Respondent used tape on minor male student, P. B., to keep his mouth closed. Student P. B. was taped up in front of the class, which caused him to feel sad. During the 1991-1992 school year, the Respondent used tape on minor male student, A. S., to keep his mouth closed. During the 1991-1992 school year, the Respondent used tape on minor male student, T. L., to keep his mouth closed and to prevent him from talking. The Respondent also used tape to restrain T. L. Specifically, the Respondent taped T. L. to his chair. On several occasions during the 1991-1992 school year, the Respondent threw a wooden ruler, and other similar objects, at students in her class. During the 1991-1992 school year, the Respondent struck minor male student, M. S., with a wooden ruler. This incident was observed by the other students in the class and made M. S. feel sad and embarrassed. During the 1991-1992 school year, the Respondent struck minor male student, P. B., on the buttocks with a wooden ruler. During the 1991-1992 school year, the Respondent struck minor female student, D. H., on the buttocks with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent stuck minor male student, T. L., on his left arm with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent pinched the ear of minor male student, T. L. in class. On numerous occasions prior to the 1991-1992 school year, the Respondent, and all other teachers at Charles R. Drew Elementary School, had been made aware of the policies of the Dade County School District prohibiting corporal punishment. The Respondent had also been made aware of what was encompassed by the term "corporal punishment." In a memorandum dated February 12, 1991, concerning the use of corporal punishment, the Respondent was specifically instructed not to throw rulers at students.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case revoking the Respondent's teaching certificate for a period of three years and providing that any recertification of the Respondent shall be pursuant to Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6896 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Accepted in substance, although the language used is more accurately described as indecent or offensive than as profanity. Paragraphs 7, 8, 9, 10, 11, 12 and 13: Accepted in substance, with some repetitious information omitted. Paragraph 14: Admitted Paragraph 15: Rejected because not charged in the Administrative Complaint. Paragraphs 16, 17, 18, 19, 20, 21, 22, 23 and 24: Accepted in substance. Paragraph 25: Rejected as irrelevant. Paragraphs 26, 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details, many of which are also irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted in substance. Paragraphs 3, 4 and 5: These paragraphs are accurate summaries of a portion of the allegations and of a portion of the evidence, but there was other evidence which supports a finding that Audric Sands was struck on the chin by a ruler thrown at him by the Respondent. Paragraph 6: Rejected as contrary to the greater weight of the persuasive evidence. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20: These paragraphs are all essentially correct summaries of the testimony described in each paragraph. Although there are differences in the details reported by the several child-witnesses, such differences are not unusual when several young children describe an event. There was a great deal of consistency on several relevant matters. Paragraphs 21 and 22: These paragraphs are essentially accurate summaries of the testimony of the witness referred to. Although the witness Mr. Jim Smith testified he never heard or saw any misconduct by the Respondent, I still find the testimony of the child-witnesses to be persuasive. The child-witnesses were with the Respondent on many occasions when Mr. Smith was not present. Also, Mr. Smith worked as an aide to the Respondent only from some time in November or December until sometime in late January. Paragraphs 23, 24 and 25: These paragraphs are essentially accurate summaries of the Respondent's testimony. To the extent the testimony summarized here conflicts with the testimony of the child-witnesses, I have generally accepted as more persuasive the testimony of the child-witnesses. Paragraphs 26 and 27: I have resolved the conflicts in the evidence other than as suggested here. I have found most of the child-witnesses' testimony to be credible. COPIES FURNISHED: Gregory A. Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 South West Third Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2017.
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
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 Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Respondent holds Florida Educator's Certificate No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016. The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate. Respondent is an experienced teacher, having taught for 22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education. Respondent began his career teaching emotional behavioral students, and did that for a few years. He later worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students. Respondent decided to teach Special Education students because he had himself been a Special Education student. The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support. Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn. His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community. In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including: Violations of the Principles of Professional Conduct. Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Unreasonably restraining a student from independent action in pursuit of learning. Intentionally exposing a student to unnecessary embarrassment or disparagement. The factual allegations underlying these violations were as follows: During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock. On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities. Facts Regarding Aggressive Handling and Improper Restraint of T.C. Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student. The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed. Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup. T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup. She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup. Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock." Pet. Ex. 2. In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand. In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup. She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/ Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C. In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2. In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2. Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened. Because she felt that the incident was not "proper interaction," she reported it to an assistant principal. Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/ Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others. While they were seated, she saw T.C. grab Respondent's coffee cup off the table. In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours." Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception." She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C. Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident. Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C. Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy. They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident. According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other. Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else. After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded. Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C. Hall observed several paraprofessionals in the room. None intervened, or put down their cell phones during the incident. According to Hall, T.C. was not harmed in any way. Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort. Hall never saw Respondent mistreat T.C. in any way. Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom. Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C. He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds. T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old. T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things. For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities. Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles." On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away. Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again. T.C. reached and got his hand on Respondent's cup. While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup. Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand. As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth. Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged. Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat. The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat. In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C. Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between T.C. and Respondent is rejected as unpersuasive and implausible.5/ The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint. Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup. Allegations Reported by Shannon Lewis Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11. She described T.C. as being 6'5" tall and weighing 250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it. Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/ According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/ Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C. Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No." No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3. However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/ St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on. St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances. He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent. Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper. Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him. Another paraprofessional, Alvaro Rodriguez testified. He was also identified by Lewis as being present during the door- biting incident. He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him. Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/ Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor. Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other. Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking. Respondent testified that he never grabbed T.C. by the cheeks and squeezed. Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible. There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C. Incident Involving P.M. Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere. Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/ One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/ She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone. St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision. Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds. There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him. Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program. Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom. Respondent testified that there were times that he would transition back from a class and P.M. would be in his room using his sensory equipment, but he would always be with St. Jacques. One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break. During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period. The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence. The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding. Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement Lewis further testified that there was an incident involving students who wanted to use calculators during math class. J.M. wanted to use the calculator, but Respondent would not let her use it. The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator. There were two other students who Respondent also did not allow to use the calculator. In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom." There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/ Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1996). Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid." Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed that St. Jacques was in the room when Respondent called the girls stupid and heard him say it. St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca. St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them. Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators. Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive. The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. 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 30th day of April, 2018.
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22d day of November, 1994.
