The Issue The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district. The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district. As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record. DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida. Joyous D. 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 27th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637 Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board: The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand. Paragraph 12 is rejected as irrelevant. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted. Paragraph 17 is rejected as irrelevant. Paragraph 34 is rejected as argument or comment. Paragraph 35 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant. Paragraph 47 is rejected as vague or argument. Paragraphs 49 through 52 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor: The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47. Paragraph 2 is rejected as contrary to the weight of the credible evidence. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent. Paragraph 13 is rejected as irrelevant. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted. Paragraph 33 is rejected as contrary to the weight of the credible evidence. Paragraph 39 is rejected as argument. Paragraph 40 is rejected as argument. Paragraph 46 is rejected as argument or vague. Paragraphs 48 through 51 are rejected as argument or irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force. Paragraph 9 is rejected as irrelevant. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant. Paragraph 15 is rejected as argument or irrelevant. Paragraph 16 is rejected as argument or irrelevant. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant. Paragraph 19 is rejected as unnecessary comment. Paragraph 20 is rejected contrary to the weight of credible evidence. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant. Paragraph 27 is rejected as speculative, irrelevant, or argumentative. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. Paragraph 31 is rejected as argumentative and irrelevant. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 34 is rejected as contrary to the weight of the credible evidence. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 36 is rejected as irrelevant or argument. COPIES FURNISHED: Tobe Lev, Esq. EGAN, LEV & SIWICA, P.A. Post Office Box 2231 Orlando, Florida 32802-2231 Roseanna J. Lee, Esq. Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN 390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801 Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde, Exec. Dir. 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a custodian.
Findings Of Fact Ms. Robertson, a custodian, began her employment with the School Board in the 2008. For school years 2008-2009 and 2009-2010, Ms. Robertson received satisfactory evaluations concerning her job performance. She was praised by Principal Kelley as a hard worker and a good addition to the LaBelle High School custodial staff. In the beginning of the 2010-2011 school year, Principal Kelley and Mr. O'Ferrell, the head custodian for LaBelle High School and Ms. Robertson's direct supervisor, noticed a marked difference in Ms. Robertson's work performance. Specifically, Ms. Robertson began taking too many breaks, leaving campus, taking longer lunch hours, failing to be in her assigned work areas, and failing to properly clean her assigned rooms. Both Principal Kelley and Mr. O'Ferrell verbally counseled Ms. Robertson on several occasions about improving her work, and staying in her assigned work area. Principal Kelley credibly testified that she initially provided Ms. Robertson with verbal consultations, rather than a written reprimand, as a means to encourage Ms. Robertson. Principal Kelley decided to use verbal consultations initially because she believed that Ms. Robertson had been a good employee in the past, and that Ms. Robertson would correct her behaviors with the verbal counseling. Similarly, Mr. O'Ferrell credibly testified that he had spoken to Ms. Robertson four or five times about improving her work. During the fall of 2010 and spring 2011, rumors circulated at LaBelle High School that Ms. Robertson had begun or was developing an inappropriate relationship with a male student. The student, T.L., was a 17-year-old senior, whose classes were in the Building and Trade class areas. The Building and Trade class area was outside of Ms. Robertson's assigned work area; however, she was spending an inordinate amount of time there.1/ Principal Kelley and Mr. O'Ferrell became aware of the rumors concerning Ms. Robertson and T.L., and asked her about it. Ms. Robertson stated that the relationship was one of guidance, rather than inappropriate. On March 10, 2011, Principal Kelley decided to change Ms. Robertson's work hours. At the time, Ms. Robertson had worked the "day shift" which consisted of a 6:00 a.m. to 2:00 p.m. work schedule. Principal Kelley determined to change Ms. Robertson's work hours to the "night shift" which consisted of a 2:00 p.m. to 10:00 p.m. work schedule. Principal Kelley's reasons for changing Ms. Robertson's work schedule concerned meeting the school's needs, and Principal Kelley's desire to address the rumors around Ms. Robertson and T.L. Principal Kelley wanted to separate Ms. Robertson and T.L. before a problem developed. Pursuant to the Collective Bargaining Agreement, Principal Kelley provided Ms. Robertson with a required 21-day notice and met with Ms. Robertson. Ms. Robertson expressed that she was unhappy with the change in her work hours, and that it would cause a hardship with her children, ages 17, 16, and 11. Although unhappy with her re-assignment, Ms. Robertson did not file a grievance challenging the change. Beginning on March 31, 2011, Ms. Robertson started working the 2:00 p.m. to 10:00 p.m. shift. That same date, March 31, 2011, Principal Kelley provided Ms. Robertson with an annual evaluation. Overall, Principal Kelley found Ms. Robertson's work to be satisfactory, but indicated that Ms. Robertson's "work attitude" needed improvement. After the change in her work schedule, Ms. Robertson's work attendance began to deteriorate, as her use of sick leave increased. Further, Ms. Robertson's work performance deteriorated. Some time during the summer of 2011, after T.L. graduated from the high school, Principal Kelley had a "no trespass" warning served on T.L. The "no trespass" warning was to keep T.L. off of the campus because he was coming to visit Ms. Robertson during her work hours. The beginning of the 2011-2012 school year did not see an improvement in Ms. Robertson's work performance. Mr. O'Ferrell credibly described Ms. Robertson's work performance as "steady downward." She was leaving the school campus to smoke, not cleaning her assigned rooms, and her attendance became "deplorable" according to Mr. O'Ferrell. The record clearly shows that Ms. Robertson's attendance and use of sick leave became excessive. Most of her sick leave was not supported by any medical documentation. Moreover, many of the dates that Ms. Robertson called in sick occurred on Thursdays, Fridays, and Mondays. For example, the record shows that Ms. Robertson used sick leave on September 29, 30, and October 3, 2011, for a corresponding long weekend. Ms. Robertson's explanation at the hearing that the dates corresponded with her children's medical needs is not credited. The medical records introduced into evidence by the parties showed, at best, that Ms. Robertson's children received influenza vaccinations on October 3, 2011. There is nothing to suggest that the children's vaccinations required three full work days. Similarly, the record shows that on the week of October 31, 2011, through November 4, 2011, Ms. Robertson called in sick for what she described as the "stomach flu." Yet, there were no corresponding medical records supporting Ms. Robertson's testimony. After Ms. Robertson's absences in the week of October 31, 2011, Principal Kelley provided Ms. Robertson with a written reprimand, an special evaluation, and documentation of Ms. Robertson's absences. The written reprimand dated November 4, 2011, informed Ms. Robertson that her excessive absenteeism created a hardship for her co-workers, and was unacceptable. On November 8, 2011, Ms. Robertson signed that she received the reprimand and that she understood the contents. The fact that Ms. Robertson understood the seriousness of this written reprimand was corroborated by Ms. Steelman, the union representative for the Hendry School District support personnel. Ms. Steelman credibly testified that she was present when Ms. Robertson received the written reprimand from Principal Kelley, and that Ms. Robertson understood the concerns outlined in the reprimand. The special evaluation, dated November 8, 2011, showed that Ms. Robertson needed to improve her quantity of work, her dependability, attendance/punctuality, and work attitude. Following the November 8, 2011, special evaluation, Ms. Robertson's attendance marginally improved, but the quality and quantity of her performance decreased. Ms. Robertson's work in cleaning her assigned areas was inadequate. Mr. Carter, a custodian who worked the night shift with Ms. Robertson, credibly testified that other custodians were required to do Ms. Robertson's work. Ms. Robertson would be visiting friends or family members during the work times or taking smoking breaks. Similarly, Mr. O'Ferrell credibly testified that Ms. Robertson was not "dependable" and failed to properly clean her assigned area. Ms. Robertson's failure to properly clean restrooms and the library led to complaints, and a second written reprimand dated December 6, 2011. The December 6, 2011, reprimand was signed by Ms. Robertson, and Principal Kelley. Again, the testimony showed that Ms. Robertson's union representative was present when the reprimand was given. Unfortunately, after the December 6, 2011, reprimand, Ms. Robertson's work performance did not improve. The record shows that Ms. Robertson received two more written evaluations from Principal Kelley, one February 29, 2012, and the other April 1, 2012. They documented that Ms. Robertson's work continued to be unsatisfactory. In the comments for the April 1, 2012, evaluation, Principal Kelley noted that Ms. Robertson's work had not improved and that issues concerning her work remained unresolved. On the checklist for each evaluation, Principal Kelley indicated that Ms. Robertson needed to improve the quantity of her work, quality of her work, dependability, attendance/punctuality, and work attitude. Mr. O'Ferrell and co- worker, Ms. Gonzalez, credibly described Ms. Robertson's continued work performance problems. Although Mr. O'Ferrell did not work on the night shift with Ms. Robertson, he would inspect the areas and rooms that Ms. Robertson had been assigned to clean. Mr. O'Ferrell credibly testified that Ms. Robertson had not properly cleaned the rooms. Similarly, Ms. Gonzalez, a custodian on the day shift, credibly testified that when she got to work in the morning she would receive teachers' complaints, and that she had to clean and pick up trash from rooms that Ms. Robertson should have cleaned the night before. As a result of Ms. Robertson's failure to do her job, teachers complained about their rooms not being cleaned, and other custodial staff had to clean the rooms assigned to Ms. Robertson. Furthermore, Mr. O'Ferrell described that Ms. Robertson's poor work resulted in morale problems with some of the custodial staff, who resented having to do Ms. Robertson's work. In the April 1, 2012, evaluation, Principal Kelley checked a box indicating that Ms. Robertson should continue on probationary status. Ms. Robertson acknowledged receipt of the document on April 9, 2012, and that she understood the evaluation. From April 25, 2012, through May 8, 2012, the record shows that Ms. Robertson was on leave for a worker's compensation injury. Medical records introduced into evidence show that Ms. Robertson reported to a health care provider that on March 28, 2012, she had been "pushing a vacuum cleaner at work and felt something pop around her lumbar spine." Ms. Robertson reported that she was experiencing lower back and hip pain. The medical records show that she received physical therapy and was released to return to work without limitation on May 9, 2012. Ms. Robertson returned to work on May 9, 2012. On May 18, 2012, Principal Kelley informed Ms. Robertson that she was being suspended with pay, and that Principal Kelley would recommend to the School Board that Ms. Robertson's employment be terminated. At the June 12, 2012, meeting, the School Board terminated Ms. Robertson's employment. There was no credible evidence that the School Board or Principal Kelley decided to terminate Ms. Robertson's employment based on Ms. Robertson's leave of absence based on the worker's compensation injury leave of absence. Ms. Robertson's explanation, that her work difficulties were tied to Principal Kelley changing Ms. Robertson's work hours, is not credible. Ms. Robertson testified that some of her absences occurred because her children’s doctor’s appointments could only be made after 3:00 p.m., when she was at work. This explanation was not credible for two reasons: first, one would expect that a doctor's appointment could be scheduled in a morning; and, second, there was scant medical record evidence to support her claim that her absences were tied to doctor appointments. Ms. Robertson also testified that the night shift caused her hardship in that she could not properly supervise her 17-year-old son, who was getting into trouble with the law. It was undisputed that her son was having difficulties, and had even been removed from the high school. Those difficulties, however, cannot explain Ms. Robertson's poor work performance when she was at work. The credible testimony from Mr. O'Ferrell, her supervisor, and two co-workers showed that Ms. Robertson did not properly clean the classrooms and areas assigned to her because she was taking too many breaks and not working. Sadly, the evidence presented showed that Ms. Robertson's difficulties stem not from her work hours, but from her poor choices.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board terminate Ms. Robertson's employment. DONE AND ENTERED this 18th day of December, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 18th day of December, 2012.
The Issue Whether there is just cause for the Manatee County School Board to terminate the employment of Robert J. Singer.
Findings Of Fact The School Board is the duly authorized entity responsible for providing public education in Manatee County, Florida. Respondent has been employed by the School Board as a teacher's aide at Braden River Middle School (BRMS) since September 6, 2007. A person employed as a teacher's aide is considered an "educational support employee" and is subject to section 1012.40, Florida Statutes (2011).1/ Respondent's position as a teacher's aide is covered by the Paraprofessional Bargaining Unit, Collective Bargaining Agreement, between the Manatee County District School Board and Manatee Education Association 3821 (Collective Bargaining Agreement). Article XVI of the Collective Bargaining Agreement provides in relevant part that "[n]o regular paraprofessional will be dismissed or deprived of salary or fringe benefits during the term of the school year without just cause." The Collective Bargaining Agreement does not define "just cause." As a teacher's aide, Respondent was responsible for: (1) assisting in the supervision of students on campus, as well as in the classroom; (2) assisting with supervision of students in the cafeteria; (3) assisting and monitoring testing of students; (4) participating in workshops and training sessions as required; (5) providing a safe and secure workplace; (6) keeping supervisors informed of potential problems or unusual events; and (7) following School Board policies, rules and regulations. Mr. Randall Petrilla (Petrilla), principal of BRMS, is Respondent's supervisor. While working at BRMS, Petrilla charged Respondent with the responsibility of running the In-School Suspension Program (ISS). Students are assigned to ISS when they commit minor infractions of school rules. Respondent was the only adult assigned to supervise the ISS classroom, and during any given day, there would be anywhere from 0 to 20 students assigned to Respondent for supervision. By his own admission, Respondent acknowledges that it is "extremely important" to remain awake and to always maintain control of the students in ISS. Throughout Respondent's employment, Petrilla has counseled or disciplined Respondent for improper behavior and for falling asleep during school hours. Specifically, Respondent has been counseled or disciplined as follows: On April 28, 2009, Respondent received an evaluation. In his evaluation, Petrilla stated that Respondent needed to work on maintaining self control. Petrilla also noted that Respondent had fallen asleep during faculty meetings and while supervising students in ISS. On February 10, 2010, several students reported that Singer fell asleep in the ISS classroom while supervising students. Petrilla informed Respondent that "[i]t is expected that there will be no recurrence of this [type] of behavior" and if such an event did recur, then further disciplinary action would result. On June 12, 2010, Respondent received an evaluation and it was noted therein that Respondent "continues to have issues w/ sleeping when he is supervising students." On January 14, 2011, Respondent was issued a written reprimand for his actions "on November 17, 2010; December 8, 2010; and January 11, 2011" when he was observed by Petrilla or other staff members sleeping during required meetings or while he was supervising students. Petrilla informed Respondent that such behavior was totally [un]acceptable" and that such behavior was considered misconduct in office and gross insubordination. Petrilla again reminded Respondent that future instances of sleeping while on duty would subject Respondent to disciplinary action. On February 2, 2011, during a required district in-service meeting, Respondent was observed sleeping by Assistant Principal Anthony Losada (Losada). Based on this allegation, the Office of Professional Standards (OPS) conducted an investigation and confirmed that Respondent was sleeping during work hours. Following the OPS investigation, the superintendent recommended that the School Board suspend Respondent for ten days. Respondent admitted the violation, accepted the suspension, and acknowledged that he understood that additional violations of a similar nature could result in further disciplinary action. Following the OPS investigation, the School Board had concerns about Respondent's ability to supervise students in ISS. Consequently, Respondent was given a temporary assignment where he was responsible for monitoring different areas of the school, such as the hallways, the media center, the bus ramps, the cafeteria, and the Office of Student Services. Petrilla assigned Respondent these temporary duties despite the fact that the duties were being performed by other personnel. Petrilla believed that by assigning Respondent these temporary duties, which required a higher level of physical activity as compared to Respondent's ISS duties, Respondent would be more alert throughout the workday and would, therefore, not sleep while on the job. Due to Petitioner's concerns about Respondent sleeping while on duty, Rebecca Wells (Wells), director of Human Resources, requested, on February 23, 2011, that Respondent submit to a fitness-for-duty examination at the school district's expense. Following initial testing, it was determined that Respondent needed to see a specialist for evaluation for sleep apnea. On March 4, 2011, while Respondent was performing his temporary assignment, Petrilla observed Respondent sleeping in the administrative office located in student services. When Petrilla saw Respondent sleeping, he went to retrieve a camera, but when he returned, Respondent was awake. Petrilla informed Respondent that he was observed sleeping and that such conduct would not be tolerated during school hours. While temporarily assigned to the media center, Respondent, along with media center specialist Joanne Torlucci (Ms. Torlucci), worked with small groups of students. Ms. Torlucci informed Respondent that on several occasions his "head [would] drop down" while he was working with students. When interviewed by school personnel, one student said that Respondent had the "dropsies" when describing Respondent's conduct. On or about April 11, 2011, Dr. Brian Angsten (Dr. Angsten) sent the School Board a letter regarding Respondent's "care for hypersomnolence." The letter indicated that Respondent had a polysomnogram, which established that he has severe obstructive sleep apnea. Dr. Angsten prescribed a recommended plan of treatment and stated that "[p]rovided the patient complies with the treatment outlined, he should be able to perform his occupational duties without restriction." On May 4, 2011, Respondent was observed by Petrilla and Losada sleeping during a district-wide meeting held in the media center of BRMS. The next day, Petrilla sent Respondent an email confirming what was observed during the district-wide meeting. On May 17, 2011, Dr. Nicole Bentze (Dr. Bentze), Respondent's primary care physician, sent the School Board a letter regarding Respondent's medical condition. In her letter, Dr. Bentze informed the School Board that Respondent was "fit to return to full duty" and "may resume all of his responsibilities in the classroom at Braden River Middle School." On May 24, 2011, the School Board received documentation from Respondent's fitness-for-duty testing advising that Respondent was "medically acceptable" for his position. On May 31, 2011, OPS conducted an investigation based on an allegation that Respondent was observed sleeping on March 4, 2011, and May 4, 2011. The investigation confirmed that Respondent was sleeping during duty hours as alleged. Based on this finding, the superintendent recommended termination of Respondent's employment. On July 7, 2011, the School Board received a letter from Dr. Angsten regarding Respondent's treatment for obstructive sleep apnea. Dr. Angsten stated that he was advised of the superintendent's recommendation to terminate Respondent's employment for falling asleep in class. Dr. Angsten advised that Respondent "ha[d] not had enough time with proper treatment to appropriately deem this a lost cause as of yet." Dr. Angsten informed the School Board that he had arranged a follow-up with Respondent in one month, and at that time, he "w[ould] review his compliance cards." Upon receiving this letter, the superintendent rescinded his recommendation to terminate Respondent's employment. On August 19, 2011, Respondent was observed sleeping during a faculty meeting at BRMS. The following day, Petrilla informed Respondent of his observations. Petrilla warned Respondent that any further episodes of sleeping while on duty would be reported to OPS. On November 2, 2011, Respondent was observed sleeping during duty hours by Petrilla, Losada, Assistant Principal Lori Jones, and the school resource officer, Carl McClellan. Petrilla advised OPS of what he had observed, and OPS initiated an investigation. Debra Horne (Horne), who works as an investigator with OPS, interviewed four students that were supervised by Respondent while in ISS. Three of the students reported that while they were in ISS, they observed Respondent sleeping. The fourth student stated that Respondent displayed conduct that suggested he was sleeping in the classroom. As part of the investigation, OPS placed a hidden camera in the ISS classroom at BRMS. The video evidence established that on November 18, 2011, Respondent slept on several different occasions; sometimes for seconds, other times for up to 20 to 30 minutes. On November 21, 2011, OPS met with Respondent and informed him that video evidence documented him sleeping during duty hours on November 18, 2011, while supervising students in the ISS classroom. After reviewing the video, Respondent acknowledged that he did, in fact, fall asleep while supervising students. The School Board presented Respondent with the opportunity to tender his resignation. Respondent opted not to tender his resignation, but instead requested that he be granted unpaid leave to pursue the option of disability retirement. Respondent did not file for disability retirement once he learned that the amount of his monthly disability income would be insufficient to meet his financial needs. On January 17, 2012, the superintendent offered to transfer Respondent to a bus monitor position. The position would require Respondent to assist bus drivers with student supervision. The environment on a school bus is typically much louder than an ISS room and would provide greater stimuli to Respondent. On or about January 18, 2012, Respondent sent a letter to Horne, wherein he requested additional information about the bus monitor position. In his letter, Respondent advised: As I have stated before, I now know I have sleep apnea, do not know when or why it going to happen except that it can (even with me following Dr. orders and getting a sound sleep). On January 19, 2012, Respondent declined the bus monitor position because, according to Respondent, there was "no guarantee that he would not fall asleep while on a bus." During the final hearing, Respondent advised that in addition to the above, he also rejected the bus monitor position because working on a bus would possibly make it more difficult for him to see about his elderly mother during the workday. On January 19, 2012, Respondent was placed on paid administrative leave, and on February 8, 2012, the superintendent notified Respondent of his intent to recommend the termination of Respondent's employment. While on paid administrative leave, Respondent underwent a second sleep study. The study, which was conducted on May 23, 2012, confirmed that Respondent had obstructive sleep apnea with disproportionate hypersomnolence. Respondent was offered several options for treatment including pharmacologic therapy (stimulant medications) and clinical monitoring. Respondent chose clinical monitoring and elected not to pursue pharmacologic therapy due to his fears about the stimulant medications. There was no credible evidence offered regarding any limiting side effects associated with the stimulant medications that Respondent would possibly be prescribed. The treatment that Respondent currently receives is the same treatment that he has received since March 2011. In fact, the clinical monitoring is the same treatment that Respondent was receiving when he fell asleep on several occasions while supervising students. Prior to the final hearing, Respondent was again evaluated by Dr. Angsten. By correspondence dated September 11, 2012, Dr. Angsten advised, In summary, this patient has complied with all requests from his . . . physicians with regard to his condition. He has made a good faith effort to comply with CPAP therapy, which has been verified by electronic monitoring. Objective testing demonstrates excellent control of his sleep apnea. As such, any further hypersomnolence must be attributed to an underlying medical condition, not behavioral inadequacy on the part of Mr. Singer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 26th day of October, 2012, 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 26th day of October, 2012.
The Issue Whether Petitioner, Polk County School Board (School Board), established "just cause" to terminate Respondent's employment as a teacher.
Findings Of Fact The School Board is responsible for the operation, control, and supervision of free public schools in Polk County, Florida. The School Board's responsibilities include the hiring and termination of school personnel. Mr. Coe teaches health science to seventh and eighth grade students at Bartow Middle School. The health science class includes instruction on basic first-aid and health assessment skills, such as how to check a person's vital signs, how to conduct an assessment of a person's injuries, as well as Cardio- Pulmonary Resuscitation (CPR). Upon successful completion of the class, the students earn a high school credit. Mr. Coe's teaching method included practical application of these health care instruction skills. Typically, he would first demonstrate the skill that he was teaching to the class with a student, and then have the students work in groups. For example, when teaching students how to use a stethoscope, Mr. Coe would first demonstrate how to use the stethoscope on a student that he called to the front of the class. After his demonstration, students would then use a stethoscope on their fellow students. The School Board did not meet its evidentiary burden of showing that Mr. Coe's classroom demonstrations of practical applications, such as using a stethoscope or conducting a "pat- down" of students when teaching how to conduct a patient assessment were inappropriate. K.G., a 14-year-old female student, credibly testified that Mr. Coe asked her to help him demonstrate how to use a stethoscope. She described that he placed the stethoscope on the left side of her chest demonstrating how to listen for the heartbeat and breathing. Further, she described that Mr. Coe, in listening to her lung and heart sounds, lifted her breast with the back of his hand to place the stethoscope on her chest. Mr. Coe, in placing the stethoscope, used the back of his hand against her torso. Similarly, K.G. also described an instance when Mr. Coe demonstrated to the class with her on how to assess trauma victims. She described Mr. Coe using the back of his hand to run across her torso and legs to demonstrate how one would conduct a "pat-down" to assess a person's injuries. K.G. testified that she did not find anything of a sexual nature in Mr. Coe's demonstrations; however, she acknowledged that after the "pat-down" demonstration, she felt uncomfortable with his hand touching her legs and had to leave the class for a period of time to compose herself. With the exception of one student, the students uniformly testified that Mr. Coe's classroom demonstrations made learning the material easier and that they perceived the demonstrations as non-sexual in manner.2/ Kozette Hubbard (Ms. Hubbard), a vocational instructor at the Polk County School Board at the Bartow Hospital, Medical and Fire Academy, credibly testified that Mr. Coe's practical approach was proper for teaching the health skills curriculum. She explained using classroom demonstrations on how to use a stethoscope, how to assess a patient by having practical "hands- on" approach, was correct instruction. Further, she credibly testified that it was proper to use the back of the hand on the person's body for a “pat-down.” Similarly, Ms. Hubbard described the proper method when checking the vital signs of a female with large breasts. Ms. Hubbard stated that it is appropriate to have the patient lay on her back and that the breasts will naturally move to the person's side, and "[i]f you do need to move a breast, you always use the back of your hand." This method reduced the likelihood that a person might misconstrue the touch for being inappropriate. Finally, she found that students who attended Mr. Coe's class were well prepared for the next level class. The School Board, however, did meet its evidentiary burden of showing Mr. Coe inappropriately touched female students in activities that were not related to any classroom instruction. Mr. Coe inappropriately touched K.G. in a number of instances that were not tied to any proper instruction. Instances of Mr. Coe's inappropriate actions include him tickling K.G. in the ribs during class, placing his chin on her shoulder so that their heads were together, and reaching into her pants pocket to remove K.G.'s cell phone in two instances. In one instance of reaching into K.G.'s back pocket, K.G. was lying on her stomach watching a movie about "C.P.R." in Mr. Coe's class. Mr. Coe came behind her and reached into K.G.'s pocket, removing her cell phone. K.G. grabbed Mr. Coe's leg and he "drug me across the floor a little bit. And we were both laughing, because he was my favorite teacher." K.G. grabbed the phone from Mr. Coe and he fell onto a table. In a second incident, K.G. was sitting on a stool at a lab table, and again Mr. Coe grabbed her cell phone from her back pocket. K.G. jumped on Mr. Coe's back, "piggy-back" style, and Mr. Coe continued to walk until he lost his balance, and they both fell to the classroom floor. Mr. Coe ended up on top of one of K.G.'s legs. Another incident of inappropriate “horseplay” by Mr. Coe involving K.G. concerned him wrapping her in gauze. In this incident, which was digitally recorded and introduced into evidence, one sees Mr. Coe wrapping K.G. in gauze. K.G. is sitting on a stool. Her hands are bound by gauze, and being held up in the air. The top of K.G.'s head and eyes are covered with gauze. Mr. Coe is seen wrapping gauze around K.G.'s torso, covering the area of her breasts. At one point in the short recording, Mr. Coe passes gauze near K.G.'s breasts and says, "I got a little close to that, someone might accuse me of something." Mr. Coe's wrapping of K.G. in gauze, as shown in the digital recording, is not related to any discernible first-aid instruction, and is inappropriate. Mr. Coe also inappropriately touched C.S., another 14- year-old female student. C.S. is a student at Bartow Middle School and the daughter of another teacher. C.S. was in her mother's classroom after school. Also in the classroom were C.S.'s mother and another teacher, Yolanda Healy. C.S.'s mother and Ms. Healy were discussing lesson plans. Mr. Coe entered the classroom, and C.S. asked him to "work out a knot in her back." C.S. explained that she was learning to play the cello and that as a result her shoulders and back were sore. Mr. Coe began to massage C.S.'s shoulders and down her back until Ms. Healy saw him. Ms. Healy sharply asked Mr. Coe, "Are you aware that this is very inappropriate?" Mr. Coe immediately stopped and left the classroom. C.S. also described an incident where Mr. Coe had "cracked her back" in the past by lifting her up from behind when she had complained about her back hurting. Mr. Coe inappropriately touched M.L., a 14-year-old female student, when he administered corporal punishment to her at the request of M.L.'s mother off school grounds. Mr. Coe is good friends with M.L. and her mother. He met them shortly after M.L. and her mother moved to Florida. M.L. considers Mr. Coe a father figure, because he is "always there for her." After befriending Mr. Coe, M.L. enrolled in his class. Some time during the school year, Mr. Coe, M.L., and her mother attended a car race at the Auburndale Speedway. At the race, M.L. began to misbehave, speak rudely to her mother, and give Mr. Coe some "attitude." M.L.'s mother asked Mr. Coe if he would discipline her. In response, Mr. Coe spanked the girl twice with his hand across her buttocks.3/ Similarly, in another instance, Mr. Coe spanked M.L. with a flip-flop at M.L.'s home after she had misbehaved. M.L.'s mother testified that Mr. Coe was allowed to discipline M.L., and that he had been a positive influence upon her daughter. Although Mr. Coe's ostensibly had the parent's approval to administer corporal discipline to M.L. off school grounds, this action is wholly inappropriate for a teacher and shows extremely poor judgment. Mr. Coe wrongly discussed the allegations against him during the School Board investigation, despite being directed not to discuss the investigation. Ms. McCarthy, a fellow teacher, credibly testified that she had been interviewed by the School Board's investigator concerning allegations against Mr. Coe. The next morning, Mr. Coe came into her classroom and said that he was leaving because of the investigation. Mr. Coe said, "I'll tell you, whenever I find out who is doing this and saying these things about me, I'm going to make them pay, no matter what." Mr. Rodriguez, an investigator for the School Board, credibly testified that Mr. Coe had been informed not to discuss the investigation with anyone. After learning from the school's principal that there was a rumor that Mr. Coe was discussing the investigation on his Facebook page, Mr. Rodriguez visited Mr. Coe's Facebook page. Mr. Rodriguez found on Mr. Coe's Facebook page comments from Mr. Coe to another school employee discussing the investigation and naming the student that initiated the complaint against him.4/, 5/ Specifically, Mr. Coe stated that an eighth-grade girl complained that he had "touched her," and then he identified the student by name, M.N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board find that it has “just cause” to dismiss Mr. Coe as a teacher. DONE AND ENTERED this 1st day of July, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2013.
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract dated May 8, 2012.
Findings Of Fact The Duval County School Board is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Mr. Kristopher J. Hunter has been employed by the Duval County School Board as an Exceptional Student Education (ESE) teacher since 2006. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act) and the Collective Bargaining Agreement between Duval Teachers United and the School Board for 2009-2011. At the time of the events at issue in this proceeding, Mr. Hunter was assigned to Arlington Middle School. Mr. Hunter was born in Florida in 1977. He attended college at the University of Virginia, graduating in three years with a degree in Geography. He played professional basketball for about six years. He then returned to school and received a teaching degree from the University of North Florida. He began teaching at Arlington Middle School in the Duval County School District in 2006. He was teaching as an ESE teacher, successfully working with children with a range of cognitive and physical disabilities integrated into the least restrictive environment, that is, the regular school classroom environment. At the beginning of the 2011-2012 school year, Mr. Hunter was assigned to a classroom in the Day Treatment Program (DTP). The DTP is the most restrictive environment offered at Arlington Middle School for ESE students. The program is housed in a separate building at the back of the school, and has five teachers and 22 students. The students assigned to DTP are those with the most severe emotional and behavioral disorders, and Mr. Hunter's previous ESE experience did not include working with students of this type. Although his ESE qualification covered working with these students, Mr. Hunter felt unprepared. The DTP teachers have access to an "intervention room" and four "time out" rooms contained within the intervention room if it becomes necessary to remove a student from their classroom because of a high magnitude disruption. The teacher can call, and staff from the intervention room will respond to help remove the disruptive student. Mr. Gary Mericle is the Site Director for DTP, responsible for the overall administration of the program. He has taught Physical Education for about 12 years and is also the Athletic Director. He is not ESE certified, but has administered the DTP for three years. Mr. Mericle is trained in Professional Crisis Management (PCM), including the use of three techniques designed to gain control of a disruptive student in a safe, efficient, and secure manner to minimize danger to the student and others. The "wrist–triceps" hold is the simplest method to obtain basic physical control over a student; the "Sunday stroll" technique is a bit more secure; while the "bar procedure" is the most difficult to effect, but results in the student being immobilized in a prone position, and so is appropriate for the most violent situations. Each ESE teacher in DTP has a para-professional assistant in their classroom. Ms. Edna Lee is assigned as Mr. Hunter's assistant. Ms. Lee has 14 years of experience in ESE and has been working with the most severely disabled students for the last six or seven years. She has experienced highly disruptive behavior and violence on numerous occasions and has been trained in PCM. R.J. is an ESE student who was transferred into DTP at Arlington prior to the Christmas break. His behavior is erratic and unpredictable. R.J. is calm some days, but at other times he engages in violent behaviors, throwing any items within his reach in a room. Mr. Hunter was aware of these behaviors in R.J., but had never experienced them in his own classroom, although R.J. did "act out" in other ways "every single day." Sometime after the Christmas school break, Mr. Hunter was trained in the PCM techniques described above for the first time. Training for the school personnel had been staggered so that everyone would not be away from their duties at the same time. After his training and before the incident involving R.J. which led to this proceeding, Mr. Hunter had had occasion to use both the "wrist-triceps" and "Sunday stroll" techniques. Mr. Mericle was aware that Mr. Hunter had completed this training and had seen Mr. Hunter employ those tactics to manage disorderly students. In the early afternoon of April 2, 2012, R.J., who had been released from a voluntary "time out" in the intervention room, entered Mr. Hunter's classroom through the door at the lower-right corner1/ of the room. When he entered, Mr. Hunter was seated at his desk in the upper-left corner of the classroom, diagonally across from the door through which R.J. entered. Ms. Lee was seated at her desk in the upper-right corner of the room straight ahead of R.J. In the middle of the room were nine student desks, arrayed roughly in a square formation. Ms. Lee testified that as soon as R.J. entered the room, she could see that he was in an agitated state. Another student may have been in the room when R.J. first entered, but immediately left,2/ leaving only Mr. Hunter, Ms. Lee and R.J. in the classroom. R.J. began walking toward Ms. Lee, going to a computer set up on a table against the right hand wall. When he was unable to sign on at the computer because it was locked, he became even more upset, cursing and kicking the chair. Ms. Lee asked R.J. what was wrong, but he did not respond. He grabbed a fistful of pens or pencils and began to throw them. Mr. Hunter asked him to stop, and when he did not, Mr. Hunter warned him that he would have to call intervention. R.J.'s behavior continued, and Mr. Hunter used his walkie-talkie to call Mr. Mericle in intervention and asked him to come to the classroom. Mr. Mericle immediately responded to the call. There was no physical contact between Mr. Hunter and R.J. prior to the time Mr. Mericle entered the room. When Mr. Mericle entered, R.J. was out of control, throwing pencils, books, and other items. Mr. Hunter and Ms. Lee were still at their desks. After observing R.J. for only a moment, Mr. Mericle concluded that his behavior constituted a high magnitude disruption, and that R.J. needed to be escorted back to intervention. At this time R.J. was moving generally in a counter-clockwise direction around the room, on the outside of the student desks. He had been throwing pencils at the window above Mr. Hunter's desk, and some of these pencils had bounced off the windows and had hit Mr. Hunter. Mr. Mericle had responded alone because they were short-handed in intervention. Mr. Mericle went to Mr. Hunter's desk and asked for his help to restrain R.J. Mr. Mericle had dealt with R.J. before under similar circumstances and believed that R.J. could be restrained fairly easily with the "wrist- triceps" hold, in which two people approach the disruptive student from each side, securing the student's wrist with their outside hand and placing their inside hand on the underside of the student's upper arm. R.J. was of slight build, about five feet, eight inches tall, and weighing about 140 pounds. Mr. Hunter is a big man, about six feet, 10 inches tall, and weighing about 290 pounds. Mr. Mericle believed that R.J. could easily be restrained. R.J. was continuing his counter-clockwise walk around the room, now going down the left side of the room opposite the computers, and turning onto the base wall of the room which contained the door where he had originally entered. As he reached the counter against this base wall, he began to run his arm across the top of it, scraping all of the items that were sitting on the counter off onto the floor. He picked up a soap dispenser and threw it. Mr. Mericle and Mr. Hunter were approaching him from behind, and caught up with him as he was about ten feet away from the wall containing the computers, when R.J. was almost back to the point at which he had first entered the room. Just as Mr. Mericle was about to draw even with R.J. on R.J's left side and was reaching for his left arm, R.J. shot forward at a high rate of speed, slammed into the wall straight in front of him, and then slid down and collapsed to the floor. Ms. Lee testified that Mr. Hunter, who had been approaching R.J. from behind on R.J.'s right side, had raised his right foot and shoved it into R.J.'s lower back, propelling R.J. into the wall. Ms. Lee testified that while R.J. had been propelled into the wall from the push, that she believed R.J. was exaggerating the effect of the push, because the effect on R.J. was overdone, like "bad acting." Mr. Hunter then quickly followed R.J., picked him up off the floor by his shirt or shoulders, lifted him completely off of the floor, shook him, and slammed his back against the wall with R.J.'s face held above Mr. Hunter's head. Mr. Mericle said that he heard R.J.'s head hit the wall behind him. Ms. Lee stated that Mr. Hunter said to R.J. in a loud voice, "You can't come in my room doing this." When Mr. Hunter released him, R.J. dropped to the floor, and then got up and left the room. Mr. Mericle went after R.J., saying, "I've got him, I've got him." Ms. Lee testified that she found Mr. Hunter's actions to be "very shocking." Mr. Mericle followed R.J., who went to the front of the school. The School Resource Officer (SRO) was there and Mr. Mericle told the SRO what had happened before continuing his pursuit. Mr. Mericle caught up with R.J. on the softball field. He asked R.J. to return to the DTP building with him. R.J. went calmly, without any use of PCM. R.J. was subsequently transported by Jacksonville Fire Rescue to Shands Medical Center. There was no evidence at hearing of any serious injury. Mr. Hunter's version of events was slightly different. He testified that he stuck his foot out and that R.J. tripped. He stated that R.J. was holding a pencil like a knife in a threatening manner, and that this was the reason Mr. Hunter then grabbed R.J. and lifted him up against the wall. Mr. Hunter said that R.J. calmed down when he was lifted off of the floor and that Mr. Hunter then lowered R.J. back to the floor. Mr. Hunter testified that he never intended to harm R.J. and that he was just trying to get control of the situation. Mr. Hunter testified that R.J. could have hurt anyone in the room or even himself. Mr. Hunter admitted that his actions, even as he had described them, were not appropriate. Ms. Lee was a credible witness whose demeanor suggested that she did not wish to cause Mr. Hunter trouble. She relayed the facts as she saw them, while giving every benefit to Mr. Hunter in her own interpretation of those facts. Her testimony that Mr. Hunter kicked R.J. into the wall is credited. Ms. Lee's conclusion that Mr. Hunter "didn't lose control, but was only trying to get R.J.'s attention" seems quite charitable, however. In any event, it is not acceptable to kick students or lift them off the ground and slam them against a wall to "get their attention." Mr. Hunter's suggestion that his actions were motivated in part by defensive or safety concerns because R.J. was wielding a pencil is discredited. Neither Ms. Lee nor Mr. Mericle, both of whom were closely watching R.J., saw a pencil displayed in a threatening manner. Even if a pencil had been wielded as a weapon, the response was completely inappropriate. At all relevant times during this incident, there were three PCM trained adults in the room with a single ESE middle school student. Mr. Hunter did not cooperate with Mr. Mericle's efforts to use approved techniques. Shoving a student or picking him up and slamming him against a wall are inconsistent with the sanctioned procedures designed to defuse high magnitude disruptions in a safe and secure fashion. Mr. Hunter, provoked by R.J.'s behaviors, used physical force against R.J. in frustration and anger. Mr. Hunter did not intend to physically hurt R.J., but acted inappropriately to get R.J. under control. Ms. Sonita Young is the Chief Human Resources Officer for Duval County Schools. In determining the appropriate action to recommend to the Superintendent in this case, Ms. Young considered the progressive discipline policy reflected in the Collective Bargaining Agreement. Ms. Young testified that she discussed the matter with others, and that she concluded that termination was appropriate even though Mr. Hunter had not had the various steps of progressive discipline imposed on him earlier, because of the severe behavior in this incident. On May 8, 2012, a Notice of Termination of Employment Contract and Immediate Suspension Without Pay was sent to Mr. Hunter. On May 9, 2012, Mr. Hunter was arrested on felony child abuse charges based on the incident. Subsequently, on or about June 15, 2012, Mr. Hunter voluntarily entered and was accepted into a pretrial diversionary program in regard to his May 9, 2012, arrest. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that Duval County School Board policies prohibited the conduct described therein. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that the State Educator's Code of Ethics and Principles of Professional Conduct of the Education Profession prohibited the conduct described therein. Respondent's demonstrated inability to follow prescribed protocols and his resort to physical force in dealing with an ESE student in frustration and anger impairs his effectiveness in the school system. Respondent's misconduct in office constitutes just cause to terminate his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment contract of Kristopher J. Hunter as a teacher. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint filed with DOAH on March 21, 2012, and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Monroe County, Florida. At all times relevant to this proceeding, Respondent has been an ESE teacher employed by Petitioner pursuant to a professional services contract. Prior to the incidents that are the subject of this proceeding, Respondent has not received any disciplinary action. Respondent has been an ESE teacher employed by Petitioner since 2005. The 2011-12 school year was her first year working with kindergarten through second grade students. Respondent worked with ESE students both in the regular classroom setting, where she works one-on-one with a student, and in situations where she removes students from the regular classroom and works with one or more students in a separate classroom. Charity King (Ms. King) is a kindergarten teacher in one of Petitioner's elementary schools (the subject school). Respondent was assigned to the subject school for the 2011-12 school year, which was her second year as a teacher. Ms. King's class consists of 16 kindergarten students, one of whom is the Student. The Student is a five-year-old female with special needs. The Student has been diagnosed with a form of autism known as Pervasive Developmental Disability Disorder, Not Otherwise Specified. The Student is high functioning intellectually, but she has trouble verbalizing and is easily distracted. She sometimes screams, pushes others (including her teacher), and becomes defiant. Periodically, she has tantrums. The Student's father is a school psychologist employed by Petitioner. The Student's mother is an ESE staffing specialist in the subject school. Both the father and the mother are very involved with their daughter's education. Respondent testified, credibly, that she communicated daily with the Student's parents and that she had developed a good rapport with the Student. Respondent also testified, credibly, that she is philosophically opposed to becoming physical with any student. Ms. Rollason has worked with Respondent on a daily basis since August of 2006. During that time, Ms. Rollason has never seen Respondent be physically inappropriate with a child, Respondent lose her temper with a child, or do anything inappropriate with a child.2/ On December 7, 2012, Respondent provided one-on-one services to the Student in Ms. King's classroom. Ms. King taught her other students during that day. On December 16, Ms. King reported to Ms. Diaz, the assistant principal at the subject school, that on December 7 she had witnessed Respondent spank the Student on one occasion, at which time she administered two blows.3/ Ms. King testified that on a scale ranging from a low of 1 to a high of 10, each of the two blows administered to the Student would have been a 7. Ms. King testified at the formal hearing that she first discussed the spanking incident with Respondent on December 15. Ms. King testified that during that conversation, Respondent tacitly admitted spanking the Student by nodding her head and making a spanking motion. Respondent testified that she met with Ms. King to discuss target groups, which included a general discussion about the Student. Respondent denied that the subject of spanking was discussed, and she denied making any spanking motion Ms. King testified that other than the conversation she had with Respondent, she did not discuss the alleged spanking incident with anyone at the school, including the Student's mother, until December 16, when she talked to Ms. Diaz. Ms. King did not confront Respondent on the day of the alleged incident. Ms. King does not know the approximate time of day the alleged spanking occurred, does not know what she was doing when the alleged spanking occurred, does not know where she was in the classroom, does not know where in the classroom Respondent and the Student were, and does not recall whether the Student cried or had any other reaction to the alleged spanking. Ms. King did not talk to the Student about the alleged spanking, and she did not check to see if the Student was hurt. Ms. King also testified that prior to December 7, she had seen Respondent mishandle the Student. Ms. King did not identify the time, date, or place of this alleged mishandling. Ms. King did not describe the acts that constituted the mishandling. Respondent testified, credibly, that she never mishandled the Student and did not know what Ms. King was referencing. On either December 17 or 18, Respondent was first notified of the allegation that she had spanked the Student. Respondent was totally surprised by the allegation. She had no idea what Ms. King was talking about. Over the course of the following days and weeks, Respondent tried to reconstruct the events of December 7. She could not recall any incident, and nothing in her notes from that day referenced any issue. Mr. Russell interviewed the other students in Ms. King's class on December 22. None of those students reported witnessing anything inappropriate on December 7. The Student's parents were not informed of the alleged incident until January, after the holiday break. Consequently, they were unable to discuss the incident with their daughter right after the alleged incident occurred. Since the first time she was confronted with the allegations, Respondent has maintained she did not hit, spank, or strike the Student on December 7. Respondent has also maintained that she never handled the Student in a rough manner. There is no basis in this case to credit Ms. King's testimony over that of the Respondent. While the undersigned finds Ms. King to be a sincere witness, her vague, uncorroborated testimony is insufficient to support a finding of guilt in this proceeding. Mr. Russell recommended that Respondent's employment be terminated. When he made that recommendation, he was unaware of Petitioner's progressive discipline policy. There was no other evidence that Respondent's effectiveness in the school system had been impaired by the alleged incidents.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Monroe County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order find Janet Faber not guilty of the violations alleged in the Administrative Complaint and reinstate her employment with back pay and appropriate benefits. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012.
The Issue The issue is whether respondent's educator's certificate should be disciplined for the reasons cited in the administrative complaint filed on November 7, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Richard T. Vaughn, Jr., is licensed as a teacher having been issued Florida Educator's Certificate 678116 by the Department of Education. The certificate covers the area of sociology and was valid through June 30, 1995. When the events herein occurred, respondent was employed as a mathematics teacher at the Marion Regional Juvenile Detention Center (MRJDC) and The Phoenix Center in the Marion County School District. Based on conduct which occurred during school year 1993-94, on May 19, 1994, respondent was suspended from his teaching position by the Marion County School Board (Board). After an administrative hearing was held in December 1994, a final order was entered by the Board on March 31, 1995, terminating respondent for misconduct in office, incompetency, and willful neglect of duty. After learning of the Board's action, and conducting a further inquiry, petitioner, Frank T. Brogan, as Commissioner of Education, issued an administrative complaint on November 7, 1995, alleging that respondent's conduct also constituted a sufficient ground to discipline his teacher's certificate. The charges stem from incidents which allegedly occurred while respondent taught at MRJDC from September 1993 until April 7, 1994, and at The Phoenix Center from April 8, 1994, until May 17, 1994. In his request for a hearing, respondent has denied all material allegations. During most of school year 1993-94, respondent taught at MRJDC, which is a detention facility for students who are awaiting trial on criminal charges. As might be expected, the students at MRJDC "are very difficult to work with." At hearing, respondent's supervisor established that respondent had "difficulty" with his work, he was "uncooperative" with other faculty and staff, and he had "problems" with his peers. His behavior was generally described by all witnesses as being "bizarre" and "irresponsible." On some occasions, he would become angry with his students and "storm" out of his classroom leaving the students unsupervised. While respondent was teaching at MRJDC, it was necessary for the principal of the school's education center to meet with respondent because he would not speak to any of his colleagues. Respondent took the position that speaking with his peers was not in his job description, and thus it was unnecessary for him to do so. Although admonished by the principal to communicate with his peers, respondent continued to be abrupt and uncommunicative. During his tenure at MRJDC, respondent exhibited irrational and explosive behavior while teaching his classes. For example, he frequently engaged in screaming tirades against students who failed to meet his disciplinary expectations. In addition, it was not unusual for respondent to be confrontational with his students, and if threatened by one, he would challenge the student to carry out the threat, or to meet him outside the classroom to resolve the matter. Respondent's pattern of explosive behavior at MRJDC culminated on April 7, 1994, when the MRJDC superintendent was called to respondent's classroom to resolve an "emergency" situation. As it turned out, a student had thrown some pencil lead, hitting respondent in his glasses. Respondent began yelling at the student and challenging him to come outside the classroom and "take him on" to settle the score. When the superintendent arrived, she asked respondent to leave campus for the remainder of the day. However, respondent became abrupt and confrontational with the superintendent, initially refused to leave, and continued yelling at the student for another five minutes. Because of respondent's pattern of irrational and explosive behavior throughout the school year, and his loss of effectiveness as a teacher at MRJDC with both his colleagues and his students, a decision was made to transfer respondent to The Phoenix Center, an alternative education school, in order to give him one final opportunity. Effective April 8, 1994, respondent was reassigned to The Phoenix Center as an exceptional student education teacher. His class consisted of no more than four or five students. Despite the small number of students, respondent continually called the dean of students to resolve disciplinary problems which arose in his classroom. It can be reasonably inferred that respondent lacked the necessary demeanor and temperament to effectively manage and control his classroom. On May 3, 1994, respondent was described as being "incoherent" and "in a rage" while engaged in an altercation with a student who had threatened him. While the student was being led from the classroom to the principal's office by the dean of students, respondent became "agitated" and followed the student down the hallway continuing to challenge him to carry out his threat. Although ordered by the dean to return to the classroom, respondent initially refused to do so. Respondent's explanation for his conduct was that he was trying to prove a point with the student. For at least the second time that school year, respondent was instructed by the principal not to challenge students who had made threats. By engaging in the conduct described in the previous finding of fact, and that described in findings of fact 6 and 7, respondent intentionally exposed his students to unnecessary embarrassment or disparagement. On May 6, 1994, while coaching a school softball team, respondent became outraged over a call by the umpire and left the campus without permission. During his absence, the students were unsupervised. On May 17, 1994, respondent was returning to campus in his automobile when he approached a group of students in the roadway. One female student ignored her teacher's request to move and intentionally remained in the middle of the road. As he approached the student, respondent gunned his engine and drove straight for the student but hit his brakes stopping just short of her. Respondent later explained that he was merely trying to prove the point that if a student remained in the road with a car approaching, she would "be in trouble." By engaging in this conduct, respondent failed to make a reasonable effort to protect a student's physical safety. By virtue of his personal conduct over the school year at both MRJDC and The Phoenix Center, respondent's effectiveness as a classroom teacher has been seriously reduced.
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 violating Sections 231.28(1)(f) and (i), Florida Statutes, and Rules 6B-1.006(3)(a) and (e), Florida Administrative Code, revoking his certificate for one year, allowing him to reapply for an educator's certificate only upon certification by a mental health professional that he is competent and capable of performing his duties as an educator, and upon reemployment, placing him on probation for a period of three years. DONE AND ENTERED this 18th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1996. COPIES FURNISHED: Karen Barr Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Carl J. Zahner, II, Esquire Department of Education Suite 1701, The Capitol Tallahassee, Florida 32399-0400 Richard T. Vaughn, Jr. 1731 26th Street, South St. Petersburg, Florida 33712
The Issue The issue in this case is whether just cause exists to terminate Respondent, Kathleen P. Cole's ("Cole"), employment with Petitioner, Pinellas County School Board (the "Board"), based on Cole's repeated and chronic tardiness, or conversely, whether Cole's tardiness is excused by a medical condition.
Findings Of Fact The Board is the governing body responsible for hiring, firing, and overseeing all employees in the Pinellas County school district. Specifically, the Board has responsibility for administrative duties of the School. At all times relevant hereto, Cole was an ESE teacher at the School. Before beginning work at the School in the 2005-2006 school year, Cole had taught school in North Carolina for eight years. Cole was granted a Professional Service Contract by the Board on June 10, 2008. Cole's classroom at the School was a self-contained classroom located apart from the main buildings of the School during 2007-2008 school year, the first year at issue in this proceeding. She had one paraprofessional assistant, referred to as an "associate" by the Board, during that school year. During the 2009-1010 school year, Cole's classroom was located in a pod, i.e., within the main buildings of the School. She had one associate that year. In the 2010-2011 school year, Cole was again located in a pod; she had one full-time associate and one part-time associate. The part-time associate was assigned to one particular special needs student. There were no significant problems with Cole's attendance or punctuality during her first two years of employment at the School. During the 2007-2008 school year, Hill, the assistant principal at that time, began to get word that Cole was missing meetings and coming to work late. Hill began to keep an eye on Cole so as to confirm or refute the allegations she had heard about Cole. Pursuant to her investigation, Hill determined that Cole was coming in to work late frequently. Further, Hill found that Cole was either not attending meetings or leaving meetings early without providing any excuse. Hill met with Cole, and Cole frankly admitted that she was having difficulty arriving at school on time each day. Cole said the reason for her tardiness was a medical condition, but the particular condition was not made known to Hill at that time. The school day for students in the 2008-2009 school year began at 8:50 a.m. Students were allowed to come onto the School campus 30 minutes prior to the start of the school day, i.e., at 8:20 a.m. All teachers were expected to be at school by 8:20 a.m., each day so that they could supervise the children. Supervision was especially important for ESE students. In Cole's own words, it is important that a classroom teacher be with her students from the time they arrive at school. She said that was "[f]or safety, for consistency, for the continuance of instruction. [Students] need to see the routine and that every day is predictable." See Transcript, page 192. In the 2009-2010 school year, the start time for classes was changed to 8:35 a.m., with students being allowed to come on campus at 8:05 a.m. Teachers were, therefore, required to be on campus beginning at 8:05 a.m. in order to supervise the students. At the beginning of the 2008-2009 school year, the principal met with Cole to discuss the tardiness and attendance issues. Cole apologized for her lack of improvement in this area, but said that she had some medical issues, including anxiety, that she was working on. Principal Hughes provided Cole with a copy of a brochure for a program offered to all school employees. The program provided assistance to teachers in the realm of time management. Cole said she was already familiar with the program and had made an appointment to attend a program meeting the following week. An informal "success plan" was developed by Cole and Hughes to assist Cole with her problem. The plan included a requirement that Cole sign in at the front office each day when she arrived so that her punctuality could be recorded. The plan also required Cole to be at school at a specific time each day. Cole's tardiness did not improve, so Hughes scheduled a formal conference with Cole on January 8, 2009. Hill, as assistant principal, also attended the conference. According to the written summary of the conference, Cole had stopped signing in regularly at the front office in October, even though the process had worked well up until that time. After December 5, 2009, Cole had not signed in at all. After some discussion, another success plan was created. The new success plan again set forth the requirements for Cole's attendance at meetings and timely arrival at school.1/ The plan addressed the areas of concern and provided steps that would be taken to rectify the problem areas. The plan was signed by Cole, Hughes, and Hill on January 12, 2009. The conference summary clearly advised Cole of the seriousness of the situation and the need to closely follow the success plan. The 2008-2009 school year ended without any further formal action taken by the School concerning Cole's tardiness. However, the associate in Cole's room said that Cole was constantly tardy even after the January 12, 2009, meeting. She did not, however, report the tardiness to School administration. Hill became the principal at the School commencing with the 2009-2010 school year. Hill soon realized that Cole's tardiness had not gotten any better and determined that something more had to be done to remedy the situation. Hill set up sign-in sheets for all teachers in an effort to make it more comfortable for Cole to sign in each day. Hill gave Cole her (Hill's) personal cell phone numbers so that Cole could contact Hill when Cole was going to be late. No other teachers were provided with Hills's phone numbers, but Hill was trying to find a way to make sure that Cole's students would have proper supervision if Cole was going to be late. Hill then began to document Cole's arrival time so that she could determine whether there was any improvement. She used other teachers and employees to help her keep track of Cole's arrival time. By December, Hill decided that Cole's tardiness had to be addressed more formally. She convened a meeting including herself, Cole, a union representative, and the assistant principal. During the meeting she reiterated the need for Cole to arrive on time and to find a way to remedy her problem. Hill reviewed Cole's conduct over the past several weeks and, for the first time, expressed an understanding of Cole's medical claim, i.e., that she had Attention Deficit Disorder ("ADD"). Cole advised Hill that she had a note from a physician indicating she had the condition, and Hill advised Cole to submit the note to the Office of Equal Opportunity ("EEO") so that they could investigate possible accommodations. At the meeting, the participants discussed Cole's seeming inability to comply with strict requirements for teachers' attendance at school. Two days after the meeting, Hill issued a Letter of Caution to Cole, recapping some of the discussion from the meeting. The letter constituted a formal demand that Cole begin to comply with the normal work day requirements for all teachers. The letter was signed and acknowledged by Cole on December 4, 2009. By that date, Hill had begun to document Cole's tardiness on a school calendar. It is clear that Cole was late almost 50 percent of the school days in the 2009-2010 school year. Conversely, Cole worked late quite frequently during that school year. Her husband said he often had to call her at night to remind her to come home. Cole eventually asked the School for some accommodations to help her with her ADD condition. She asked to be moved from an interior room in the pod formation to an exterior room so that she would have fewer distractions. Hill granted the request, even though she believed the real purpose of the move was to allow Cole to slip into an exterior door when she was late, rather than pass through another teacher's area. Cole also asked that furniture be rearranged, desks and bookshelves replaced, and other classroom changes. For some reason, Cole frequently rearranged her classroom furniture. Hill did not know exactly how these actions constituted an "accommodation," but was willing to try anything to get Cole to arrive at school timely. Cole also asked for some flexibility as to her arrival time. Hill granted her some "flex time" in that regard, but it appears to be the same flex time afforded all teachers. That is, students would start arriving on campus at 7:35 a.m., but some teachers who requested it were afforded the opportunity not to show up until 8:05 a.m., under the flex time policy. Meanwhile, Cole asked the EEO to allow her other accommodations, including: 1) Altering the start time for her students to report to school; 2) Guaranteeing that Cole would always be in a self-contained classroom, i.e., a portable; and Granting flex time that would allow Cole to report to work late at times. The EEO acknowledged that Cole had a "medical condition that limits one or more major life activities under [the Americans with Disabilities Act]." Cole's physician also said that Cole was "limited in major life activities of working and learning" and also that she would "experience difficulty in the working environment when interrupted." EEO recommended that Cole follow the directions of her physician, participate in psychotherapy, and take the appropriate medication to treat her condition. Cole seemed to have good rapport with her students or, at least, with their parents. A parent testified at final hearing that her child would not have progressed as well as he did without Cole's diligence and attention to her son's needs. Hill and others observed Cole interacting well with her students on many occasions and deemed Cole a good classroom teacher. Cole's associates, however, thought that Cole did not seem to be as connected to her students as other teachers were to their students. For example, Cole did not take the students to the lunchroom, gym class, or other activities outside the classroom. Rather, she left that task to the associate. Also, Cole did not provide her associates with written lesson plans or a schedule of activities. When Cole was absent--or tardy--the associates would simply find ways to keep the students occupied. One of her associates, Moschberger, asked for a transfer out of Cole's room during the 2010-2011 school year, but Cole was dismissed in October 2010, making the request moot. At the end of the 2009-2010 school year, Hill became more concerned about Cole's repeated and chronic tardiness, so she asked James Lott, the administrator of the Office of Professional Standards, to get involved. Lott attempted to schedule a meeting with Cole, but a conflict arose on the proposed date. Lott rescheduled the meeting, but issues with Cole's union representatives caused the meeting to be cancelled. Lott made an assumption that Cole was attempting to avoid the meeting, so he placed Cole on paid administrative leave until such time as the meeting could be held. The dates of the paid administrative leave were the final four days of the 2009-2010 school year, meaning that Cole missed the "moving on" ceremony for her students. A meeting was ultimately held, resulting in Cole's being issued a Letter of Reprimand dated July 12, 2010. The letter advised Cole that failure to comply with the school schedule might result in disciplinary action including, but not limited to, suspension without pay or a recommendation for termination of employment. Almost immediately upon the start of the 2010-2011 school year, Cole came to school late. On the second day of that school year, Hill emailed Lott to vent her frustration that Cole was already tardy. Further, Hill complained that Cole left the faculty meeting and other training sessions without any explanation. Cole also failed to attend important committee meetings and mandatory ESE meetings, which were used to discuss important issues for the new school year. A couple of weeks into the new school year, Cole allegedly cancelled her Open House, a "meet and greet" event to allow parents to meet their children's new teachers. Each teacher was expected to host such an event on a specified night. Cole says she was at the Open House for her classroom, even though she had laryngitis and a fever. Hill, however, had seen Cole on a video camera as she was leaving the School prior to commencement of the event. There was no completely persuasive evidence presented at final hearing to establish whether the Open House occurred or not, but that fact is not dispositive of the recommendation made herein. As the 2010-2011 school year progressed, Hill continued to keep a calendar of Cole's attendance. Cole was late 23 of 44 days before the School decided to take action. On October 21, 2010, the School placed Cole on paid administrative leave pending further action by the Board. Cole was then offered the opportunity to return to a classroom by taking a position at Sexton Elementary School. However, inasmuch as Sexton Elementary was some 45 minutes drive time from Cole's home and knowing that she was already having a problem getting to work on time, Cole refused the offer. She considered it a recipe for failure, not an opportunity to start anew. The Board met on December 7, 2010, and considered a recommendation from the superintendent that Cole's employment with the School be terminated. Cole was asked directly by the School how it might accommodate her or help her to be successful at the School. Cole said that she wanted the following: A little flexibility; To be treated like the rest of the teachers at the School; Some acknowledgement of her positive changes; and Not to be punished for being late. It appears from the record that the School has given Cole some flexibility--it allowed her to arrive later than other teachers were required to arrive. The School treated Cole like other similarly situated teachers. At one point, the School had all teachers signing in each morning as an accommodation to Cole, even though others were not having tardiness problems. Cole's annual performance appraisals, along with comments from her principal, indicate that Cole's accomplishments are recognized. As to not punishing her for being late, there is no reasonable rationale for that request. Even Cole admits that it is important for teachers to be in the classroom the entire school day, every day. No testimony was provided by Cole or her medical professional as to whether Cole would be any more apt to be on time should her schedule be altered. That is, if she was allowed to come to school a half-hour later than other teachers, there is no reason to believe she would meet that requirement. According to Cole's own testimony, she has always had an issue with timeliness, and admitted, "the harder I try, the worse I get." According to Cole's medical professional, Cole would not be likely to meet the attendance requirement of her job, an essential function for teachers. She would be "unable to report to work" in a substantive way, i.e., by being late at times. The medical professional further appraised Cole's prognosis as only "fair to good." However, she believes that Cole may be able to function in a teaching environment if certain accommodations were made. There was no persuasive testimony at final hearing as to what time could be established for Cole's arrival at school that would work as an accommodation for her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pinellas County School Board, upholding the termination of Respondent, Kathleen P. Cole's, employment for the reasons set forth above. DONE AND ENTERED this 15th day of June, 2011, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2011.
The Issue Whether Respondent Jannett Pusey (“Respondent”), violated the statutes and rules as alleged in the Administrative Complaint; and, if so, what disciplinary measures should be taken against her professional educator’s certificate.
Findings Of Fact Petitioner is responsible for investigating and prosecuting complaints against individuals who hold a Florida Educator’s Certificate and are alleged to have violated section 1012.795, Florida Statutes, and related administrative rules. Respondent holds Florida Educator’s Certificate number 730057 (“certificate”). The certificate covers the areas of Mathematics, Business Education, Teacher Coordinator of Work Experience Programs, and Exceptional Student Education (“ESE”) and is valid through June 30, 2018. At all times material to this case, Respondent was employed as an Autism Spectrum Disorder (“ASD”) teacher at Aventura Waterways K-8 Center (“Aventura”) in the Miami-Dade County School District. Prior to assignment to Aventura, Respondent worked at various positions for the Miami-Dade County School District, including life skills secretary, administrative positions, treasurer, secretary-treasurer, outreach specialist, substitute teacher, regular education teacher, ESE teacher, interventionist, tutor, entrepreneur teacher, business teacher, career exploration teacher, and math teacher. In total, Respondent was employed by the school district as a teacher for 22 years. 2014-2015 School Year During the 2014-2015 school year, Respondent worked at Aventura as an ASD teacher. Respondent’s class consisted of students in grades four through seven. M.C. was a fourth grade autistic student in Respondent’s class. For the most part, M.C. was non-verbal. K. and R. were two other autistic students in Respondent’s class, but they were higher functioning students than M.C. Once a week, Respondent’s students attended a special area art class for one hour. The art class was taught by an eleven-year educator, Kristy Garcia. September 17, 2014, Art Class Incidents On September 17, 2014, Respondent’s students attended Ms. Garcia’s art class. During class, M.C. was sitting at a desk coloring and threw some crayons on the floor. Thereafter, Respondent came up from behind M.C., reached over him, grabbed both of his arms, forcibly dragged him down to the floor, grabbed both of his hands by placing her hands over his hands, and made him pick up the crayons. Ms. Garcia was appalled at Respondent’s treatment of M.C. After picking up the crayons, M.C. returned to his chair, put crayons in his mouth, and began to spit on the floor. Thereafter, Respondent got a wipey, again grabbed M.C. by the arms, pulled him out of chair, forcibly dragged him down to the floor, grabbed both of his hands by placing her hands over his hands, and made a large wiping motion to make him clean up the spit. By the end of class, M.C. was upset and agitated. While the students were lined up, about to depart the art class, and return to Respondent’s class, M.C. pinched K. Upon observing this, Respondent told K. to pinch M.C. back. Ms. Garcia was appalled and intervened, stating, “no, we can’t do that . . . that’s not okay, especially in my class.” K. was stunned, hesitated for a moment, but nevertheless followed Respondent’s order and reluctantly pinched M.C. In response, M.C. went and pinched another student, R., who became upset and started hitting M.C. Ms. Garcia was shocked by what she witnessed. She verbally responded by telling Respondent that she would not tolerate Respondent’s behavior in her classroom. Ms. Garcia admonished Respondent that the students should not be taught to retaliate against each other. In response, Respondent simply remained silent. Respondent’s conduct on September 17, 2014, was inappropriate, abusive, and seriously reduced her effectiveness as a teacher. Respondent could certainly have projected authority and corrected M.C.’s behavior without the need to resort to grabbing his arms, forcibly dragging him down to the floor, and instructing another student to pinch M.C. in retaliation for M.C. pinching another student. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent is guilty of conduct in violation of section 1012.795(1)(g) and Florida Administrative Code Rules 6A-10.081(3)(a) and (e). By grabbing M.C.’s arms, forcibly dragging him to the ground, and directing another student to pinch M.C., in retaliation for M.C. pinching another student, Respondent violated section 1012.795(1)(g) by engaging in conduct that seriously reduced her effectiveness as a teacher. Respondent also violated rule 6A-10.081(3)(a) by failing to make reasonable effort to protect her students from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety. Respondent also violated rule 6A-10.081(3)(e) by intentionally exposing a student to unnecessary embarrassment or disparagement. The persuasive and credible evidence adduced at hearing fails to clearly and convincingly establish that Respondent is guilty of violating rule 6A-10.081(3)(b). November 2014, Saturday Night Phone Call Incident On October 27, 2014, a conference-for-the-record was held between Respondent; Mr. Jose Bueno, Administrative Director North Region Office; Mr. Luis Bello, Principal of Aventura; Ms. Hiralda Cruz-Ricot, Respondent’s union representative; and Ms. Helen Pina, District Director. The purpose of the conference was to address the Investigative Report of the School Board’s Civilian Investigative Unit, which had established probable cause for Respondent’s alleged violations of various school board policies relating to the aforementioned incidents which occurred in Ms. Garcia’s art class on September 17, 2014. Before the conference, Respondent was directed to “[r]efrain from contacting, in person or by any other means, any of the parties involved in this Investigation at any time.” Ms. Pina reiterated this directive in a written summary of the conference issued October 29, 2014. Shortly after the conference-for-the-record, the Department of Education’s Professional Practices Services notified Respondent of their investigation into the M.C. matter. Notwithstanding the aforementioned specific directive, Respondent interfered with the investigation into her conduct on September 17, 2014, by telephoning M.C.’s mother (“S.C.”) at 8:00 p.m., on the Saturday evening before Thanksgiving in November 2014. During this call, Respondent told S.C. that she was going to lose her job. Respondent requested that S.C. have her ex-husband write a favorable letter on Respondent’s behalf and backdate the letter to August 2014. The call went on for almost two hours--such length that S.C.’s phone battery ran out of power. Respondent’s contention that she contacted S.C. at the behest of a Department of Education employee in an effort to obtain better educational services for M.C. is rejected as unpersuasive and not credible. The persuasive and credible evidence adduced at hearing clearly and convincingly establishes that Respondent’s effectiveness as a teacher was seriously reduced in violation of section 1012.795(1)(g) because of Respondent’s call to S.C. On December 10, 2014, Respondent’s employment was terminated by the Miami-Dade County School Board, because of the incidents occurring in Ms. Garcia’s art class on September 17, 2014, and the subsequent call by Respondent to S.C. on the Saturday evening before Thanksgiving in November 2014. Respondent’s termination was upheld following an evidentiary hearing, and the issuance of the Recommended and Final Orders on January 26, 2015, and October 20, 2015, respectively, in the DOAH case styled, Miami-Dade County School Board v. Jannett Pusey, Case No. 14-5940TTS. Respondent’s certificate has also been the subject of prior discipline. On June 3, 2013, Dr. Tony Bennett, as Commissioner of Education, filed an Administrative Complaint seeking disciplinary sanctions against Respondent’s educator’s certificate. The charges against Respondent arose from an altercation Respondent had with a then 11-year-old fourth grade ESE student, E.A., on September 27, 2011. Following an evidentiary hearing in the DOAH case styled Pam Stewart, as Commissioner of Education v. Jannett Amelda Pusey, Case No. 13-4987PL, Judge Creasy found, in a Recommended Order issued January 22, 2015, that Respondent failed to protect E.A. from conditions harmful to learning and to his mental health and intentionally exposed E.A. to unnecessary embarrassment and disparagement by yelling at E.A. loud enough to be heard by another class, punching E.A. in the arm which was seen by students in another class, and throwing E.A’s bookbag into her classroom. Taking into consideration that Respondent’s conduct, in striking the student, was inappropriate under any circumstance, but also placing the conduct in perspective in relation to Respondent’s “otherwise incident-free teaching career,” Judge Creasy recommended in a Recommended Order that a written reprimand be placed in Respondent’s certification file and she be placed on probation for a period of 90 school days. On September 17, 2015, the EPC issued its Final Order upholding Judge Creasy’s Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order revoking Respondent’s educator’s certificate. DONE AND ENTERED this 19th day of April, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2017.
