The Issue Whether Petitioner has just cause to terminate the Respondent's employment as an educational support employee.
Findings Of Fact Respondent was employed as a behavioral interventionist with the Palm Beach County School District during the 2000-2001 school year. A behavioral interventionist is a non- instructional employee who works primarily with students receiving services through Petitioner's Exceptional Student Education (ESE) Programs. In addition to monitoring performance and behavior of ESE students, Respondent supervised regular education students who were serving in-house suspensions, performed bus and cafeteria duty, and helped maintain discipline throughout the campus. Respondent also served as an assistant football coach. Respondent received specialized training in order to perform his duties as a behavioral interventionist. He received child development training and attended approximately 12-13 workshops dealing with physical restraint and conflict resolution issues. Respondent is not a member of a collective bargaining unit. At the times pertinent to this proceeding, Student 1, a male, was 17-years old and a junior at Forest Hill. Student 1 is 5'10" tall and weighs approximately 260 pounds. Respondent is 6'3" tall and weighs approximately 250 pounds. Respondent is a former professional football player who routinely lifts weights. On December 11, 2000, between 4:30 p.m. and 5:00 p.m., Student 1 was in the area of the outdoor basketball court watching a basketball game. Student 1 had permission to be on the campus of Forest Hill, but he should not have been in the area of the outdoor basketball court. Respondent was in the weight room at Forrest Hill that afternoon demonstrating weight lifting techniques to a group of his football players. After he completed his weight lifting workout, Respondent went to the outdoor basketball court to play basketball. Respondent began playing basketball with a group of students, including students who did not play football. Student 1 could have played if he had wanted to do so. Student 1 was not playing when the acts at issue in this proceeding occurred. Shortly after the game began, Student 1 was standing off the basketball court observing the game when the basketball ball was thrown out of bounds near him. Respondent walked up to Student 1 and said, "why don't you get the ball fat boy?" In response, Student 1 used profane language and was disrespectful towards Respondent. Respondent reacted by tapping Student 1 on the cheek with his open hand. Student 1 asked Respondent why he hit him, but received no response. As Student 1 attempted to walk away, Respondent tapped him again on the back of the head and the two exchanged words. Respondent was not justified in making physical contact with Student 1. Student 1 again addressed Respondent using profane language. Respondent reacted by taking Student 1 to the ground using a technique that he had been trained to use to restrain students. There was a conflict in the evidence as to whether Respondent placed Student 1 in a chokehold when he took him to the ground. The greater weight of the credible evidence established that Respondent did not use a chokehold on Student 1. There was also a conflict in the evidence as to whether Student 1 had become aggressive and whether Respondent was merely trying to restrain Student 1. The evidence is clear that Respondent physically restrained Student 1 because Student 1 had been disrespectful towards him, not because Student 1 had become combative. Respondent was not justified in physically restraining Student 1. Student 1 was on the ground when Respondent released him from the restraining hold. As Student 1 was attempting to rise, Respondent hit him with his forearm, which forced Student 1 back to the ground. Witnesses at the basketball court told Student 1 to stay down, but he attempted to rise and saw Respondent in a three-point position typically assumed by football linemen. Almost immediately, Respondent came at Student 1 again and forearmed him back to the ground. Student 1 fell back to the ground, biting his tongue as he went down. He then got up and began cursing. After an interval of a few minutes, Student 1 asked Respondent why he had hit him and began to spit in the general direction of Respondent. Respondent, believing that Student 1 was spitting at him, grabbed him in the area of the neck and forced him against the fence surrounding the basketball court. Respondent told Student 1, "Don't play with me boy, I'm not a kid." Respondent was not justified in that use of force against Student 1. The incident lasted over a period of several minutes. Student 2 was present during the entire incident and Student 3 was present during the latter part of the incident (when Respondent grabbed Student 1 by the neck and forced him against the fence). Both witnesses corroborated Student 1's version of the events. No other student witnesses testified at the final hearing. Student 1 complained that afternoon to a coach named Coleman about what had occurred and he also told his mother later that evening when he got home. Student 1 complained to his mother that his neck hurt and she took him to a hospital, where he was diagnosed with a sprained neck. On December 12, 2000, Student 1 and his mother returned to the school and complained to Assistant Principal Mark Sagovac, about what happened the afternoon before. Mr. Sagovac thereafter spoke with Respondent, who did not deny the incident had occurred. Respondent admitted to Mr. Sagovac that he called Student 1 a "fat boy" and asked him to get the ball, which had rolled out of bounds. Respondent further told Mr. Sagovac that he pushed Student 1 to the ground with his forearm and forced Student 1 up against the fence because he felt Student 1 was threatening him. After speaking with Respondent, Mr. Sagovac interviewed Student 1 again and spoke to other witnesses. Some time thereafter a meeting was held between Student 1, his mother, Respondent, Mr. Sagovac, and Assistant Principal Green, who is also an assistant principal assigned to Forest Hill. The incident was discussed again and at one point, Respondent apologized to Student 1 and his mother. After the meeting concluded, Mr. Sagovac issued to Respondent a verbal reprimand with written notation for the actions he took on December 11, 2000. Prior to serving the Respondent with the verbal reprimand with written notation, Sagovac did not consult with his principal or anyone in the Petitioner 's Personnel Office or Office of Professional Standards to determine if he was complying with policy or if he was following accepted personnel practice concerning the contemplated discipline. Mr. Sagovac was not complying with school policy when he issued the verbal reprimand with written notation. Mr. Sagovac did not have the authority to discipline Respondent. Shortly after the conclusion of the meeting attended by Student 1, his mother, Respondent, and Mr. Sagovac, a complaint was made to the school district's police department concerning the December 11, 2000, incident. Based upon the complaint, a criminal investigation into Respondent's actions was initiated. There was no evidence as to the status of any criminal charges presented at the final hearing. Petitioner's Office of Professional Standards received information concerning the criminal investigation, which caused it to open its own administrative investigation. After the Office of Professional Standards received the police report and the attached documents, the case was assigned to an investigator. During the Petitioner's investigation, Respondent was placed on administrative leave with pay and assigned to duty at his home. This assignment became effective February 1, 2001. After Petitioner's Office of Professional Standards completed its investigation, it prepared a report of the incident and, consistent with its rules, submitted the case for review to a case management committee. Case management review is a process whereby approximately a dozen high level employees working for the district meet at the direction of the Superintendent to review pending personnel cases which may result in the suspension of employment without pay or the termination of employment. Respondent's case management committee determined that probable cause existed to sustain the allegation Respondent used inappropriate physical force on the student in question. Once probable cause was found, it further determined that the level of the force used warranted a recommendation that Respondent's employment be terminated. Based upon the case management committee's recommendation to terminate Respondent for having engaged in inappropriate physical force on a student, Superintendent of Schools Arthur C. Johnson notified Respondent by letter dated May 8, 2001, that he would recommend to the School Board at its meeting to be held May 16, 2001, that Respondent's employment be terminated and that he be suspended without pay pending the completion of the proceedings to terminate his employment. On May 16, 2001, the School Board voted to accept the Superintendent's recommendation. It is the policy of the Petitioner that no employee is to use physical force with a student unless the employee is breaking up a fight, acting in self-defense, or protecting the student from hurting him or herself.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002.
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of April, 2013.
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. 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 12th day of July, 2013.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a classroom teacher for the conduct alleged in the Amended Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Both West Hialeah and Aventura are public schools in Miami-Dade County, Florida. During the 2011-12 school year, Respondent was employed as a teacher assigned to West Hialeah. Respondent's teaching assignment during the 2014-2015 school year was as a teacher at Aventura. Respondent's employment is governed by the collective bargaining agreement between Petitioner and the United Teachers of Dade ("UTD Contract"), Florida Statutes, the regulations issued by the Florida State Board of Education as set forth in the Florida Administrative Code, and the School Board's policies and procedures. Respondent's Prior Discipline During the 2011-2012 school year, Respondent was investigated for hitting an exceptional student education (ESE) student at West Hialeah. The investigation concluded that there was probable cause to charge Respondent with violating School Board Policies 3210 and 3210.01. As a result, a conference-for- the-record (CFR) was held on December 15, 2011, wherein OPS District Director, Dr. Brown, issued Respondent directives to: adhere to all School Board policies, specifically 3210, Standards of Ethical Conduct; 3210.01, the Code of Ethics; and 5630, Corporal Punishment and the Use of Reasonable Force; refrain from contacting in person or by any other means any of the parties involved in the investigation; refrain from using physical means as a form of discipline; and [] conduct [herself], both in [her] employment and in the community, in a manner that reflects credit upon [herself] and the district. Respondent signed on January 3, 2012, that she was in receipt of these directives. Although the charges against Respondent relating to physical aggression against a student merited a recommendation from the School Board that Respondent be terminated, the School Board took into consideration Respondent's length of service with the School Board and the fact that she had not received any prior discipline. As such, it was recommended that Respondent be suspended for 25 workdays without pay. Respondent contested this recommendation. Following a final hearing on September 24, 2012, Administrative Law Judge Stuart M. Lerner found that Respondent used physical aggression toward an ESE student and recommended that the School Board uphold Respondent's 25-workday suspension. Ultimately, Respondent was suspended for 25 workdays without pay. The September 2011 incident was reported to the Florida Department of Education (Florida DOE), and a hearing was held on October 15, 2014, to determine whether any disciplinary measures should be taken on Respondent's educator certificate. Following that hearing, conducted by the undersigned, it was recommended to the Florida DOE that "Respondent be placed on probation for 90 days with a letter or reprimand to be placed in her certification file." The Recommended Order provided that, "[t]his penalty takes into account that Respondent's conduct, in striking the student, was inappropriate under any circumstances, but also places the conduct in perspective in relation to Respondent's otherwise incident-free teaching career." The September 17, 2014, Incident Respondent later began working as a teacher with ESE students at Aventura beginning in the 2012-2013 school year. During the 2014-2015 school year, Respondent worked as an Autism Spectrum Disorder (ASD) teacher. M.C., who suffers from ASD, was a student in Respondent's class during the 2014-2015 school year. M.C. and his family are from Argentina and the 2014-2015 school year was the first year M.C. attended a public school in the United States. Initially, M.C. could not take instruction in class. Respondent worked with him to develop the skills to take instruction by demonstrating actions, repeating instruction and praising the student for doing things correctly. Respondent taught M.C. how to write his name, catch a ball, and hold a pencil. Respondent shared a classroom with fellow teacher, Ms. Stubbs. Ms. Stubbs had her own set of students with varying exceptionalities. Ms. Stubbs had six middle school students and Respondent had six elementary school students. Ms. Pollard acted as Respondent's paraprofessional, helping Respondent with her students. Additionally, Ms. Charles would assist Respondent with M.C. for a few hours each day. Respondent's planning period was during the time her students went to art once a week on Wednesday. Respondent voluntarily gave up her planning period to assist the art teacher, Ms. Garcia, with the students. Ms. Garcia worked as an art teacher at Aventura for six (6) years. On September 17, 2014, Ms. Garcia was teaching art to Respondent's students. After Ms. Garcia had provided instructions for the class, she began walking around the room while the students worked on their assignment. M.C. was seated at his desk coloring with crayons. M.C. began throwing crayons on the floor and Respondent, who had been standing behind M.C. with her hands on his shoulders, grabbed M.C.'s hands and wrists and pulled him down to the floor, causing M.C. to fall down to his knees. Respondent told M.C. to pick up the crayons in a loud tone that conveyed she was annoyed. Once Respondent had M.C. on the floor, she held M.C.'s wrists, forcing him to pick up the crayons off the floor. All the while, M.C., who is non-verbal, was making noises like he was not happy. Ms. Garcia tried to help, but Respondent did not allow her, insisting that M.C. had to clean up by himself. M.C. eventually returned to his seat and then began spitting on the floor. Once again, Respondent pulled M.C. to the floor by his wrists, causing him to land on his knees. Respondent again appeared annoyed as she was forcing M.C. to wipe up the spit. Ms. Garcia attempted once more to assist in the clean-up, but Respondent did not allow her, stating that M.C. had to clean up his own mess. Although Ms. Garcia has seen other ESE students being restrained, she has never seen a teacher treat a student like Respondent treated M.C. by forcefully pulling him to the floor. There was no indication that M.C. was going to hurt himself or other students. Although Ms. Pollard did not see the interaction between Respondent and M.C., because she was busy helping the students with their assignment, she did hear Respondent yell, "Pick it up!" in a tone loud enough to be heard over the noise of the classroom. At the end of the art class, M.C. pinched another student with ASD, K., in front of Respondent. Respondent responded by instructing K. to pinch M.C. back. Ms. Garcia was only three feet away from Respondent when she heard Respondent say this. K. is a very obedient student. When Respondent told him to pinch M.C. back, K. looked confused, shrugged his shoulders and reluctantly pinched M.C. back. Ms. Garcia was shocked by what she witnessed. She verbally intervened 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. Respondent just stood silent and stunned during the confrontation. Meanwhile, M.C., upset at K.'s retaliation, ran off and pinched another student, R., who retaliated by repeatedly hitting M.C. back. The situation Respondent created was total chaos. Two children, K. and R., who are otherwise well-behaved, were acting aggressively towards each other. Ms. Garcia then had to physically intervene by separating the fighting children because Respondent just stood by. Ms. Pollard, who had been outside Ms. Garcia's classroom with the rest of the class, began to wonder what was taking the other students so long. When Ms. Pollard peered back into the classroom, the expression on Ms. Garcia's face startled her. Ms. Pollard asked Ms. Garcia what was wrong, to which Ms. Garcia responded, "Do you believe she [Respondent] told K. to hit M.C.?!" Ms. Pollard looked over to Respondent, but Respondent remained silent. Ms. Garcia informed Principal Bello that she witnessed Respondent handle M.C. in an inappropriate manner and that Respondent instructed another student to pinch M.C. in retaliation. Respondent denied these allegations. Ms. Garcia did not have any issues with Respondent prior to Ms. Garcia reporting the incident to Principal Bello. After the incident, Respondent stopped coming into Ms. Garcia's classroom with her students. Respondent's Post-Incident Conduct On September 29, 2014, Mr. Bello issued Respondent a letter, directing her to refrain "from contacting any complainant(s) and/or witnesses, with the intent to interfere with the investigation of the above listed allegation." In November of 2014, M.C.'s mother, S.C., received a telephone call from Respondent on a Saturday night at around 8:00 p.m. Respondent proceeded to tell S.C. that she was going to lose her job and teaching license because of S.C.'s son, M.C. Respondent asked S.C. to have her ex-husband, M.C.'s father, write a letter and backdate it to the first day of school in August 2014. Respondent's call made S.C. feel "extremely horrible" and "guilty." S.C. did not want anyone losing their job because of her son. Subsequently, Respondent repeatedly took advantage of the fact that S.C. picked up M.C. in the classroom to talk to S.C. about the allegations. Respondent cried to S.C., telling her that M.C. had behaved well on the last day of school before the Thanksgiving break because M.C. must have known it would be Respondent's last day as his teacher. Respondent's words and actions towards S.C. made S.C. question why the school was investigating or targeting Respondent and she wanted to ask the school to stop their investigation. The effect that Respondent's words and actions had on S.C. is precisely what Petitioner tries to avoid by issuing standard directives that employees being investigated may not contact witnesses with the intent to interfere with the investigation.1/ Respondent was afforded her employee and due process rights, including the opportunity to file exceptions to the investigative report and request a superintendent's review. At its regularly scheduled meeting on December 10, 2014, the Petitioner took action to suspend Respondent without pay and initiated dismissal proceedings against her. Respondent claims that allegations against her are falsified, that Ms. Garcia was "coached" for reasons Respondent could not articulate, and that her co-teacher, Ms. Stubbs, is out to get her. She also believes "the principal and his agents" conspired against her. Notably, Ms. Stubbs was not the individual who reported the incident. She did not provide a statement in support of the allegations nor did she testify at the final hearing. Respondent could not identify the alleged agents of the principal. Respondent's denial of the allegations and conspiracy theory are identical to the defenses she asserted in response to her prior incident of inappropriately touching a child for which she received a 25-day suspension and probation.2/ Respondent presented no credible evidence in support of these defenses. Respondent also claims that M.C.'s father gave her verbal permission at the beginning of the school year to teach his son "life skills" and put physical limits on his son. The father did not testify, there was no corroboration, and it was denied by S.C. Even assuming this was true, it is implausible that M.C.'s father, or any parent, would envision a scenario in which his child would be pulled to the ground forcibly by his teacher, or another student would be encouraged by a teacher to physically retaliate against his child, to teach "life skills." Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent engaged in misconduct in office, gross insubordination, and violated School Board rules 3210 and 3213.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, including Respondent's prior 25-day suspension for similar conduct (inappropriate physical contact with a student) and the seriousness of these violations, it is RECOMMENDED that the School Board enter a Final Order terminating Respondent's employment. DONE AND ENTERED this 26th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 June, 2015.
The Issue The issue is whether Petitioner, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Ron Ciranna to Respondent dated March 3, 2008.
Findings Of Fact Ms. Brown has been employed by the School Board as a teacher for 11 years. She is a member of the Polk Education Association, the collective bargaining unit for teaching personnel; is covered by the collective bargaining agreement between the School Board and the Polk Education Association; and holds a professional services contract with the School Board pursuant to Section 1012.33, Florida Statutes. During the first several years of her employment, Ms. Brown was assigned to Dundee Elementary School as an Exceptional Student Education ("ESE") teacher, working with children classified as severely emotionally disturbed, emotionally handicapped, and varying exceptionalities. When she transferred to Spook Hill, Ms. Brown initially worked in a self-contained varying exceptionalities classroom. Three years ago the principal of Spook Hill, Matthew Burkett, requested that Ms. Brown transfer to a new ESE Pre-kindergarten (Pre-K) unit that was being established at the school.2 Ms. Brown started work in the ESE Pre-K unit at the start of the 2005-2006 school year and has remained there ever since. Most of the children in Ms. Brown's class were classified as educable mentally handicapped, or EMH. Testing showed that they were developmentally delayed, with developmental ages that were typically one to two and one-half years behind their chronological ages. At any given time, there could be as few as four or as many as 12 children in Ms. Brown's class. A paraeducator was assigned to assist Ms. Brown. The ESE Pre-K classroom was a portable with a ramp leading to the front door. The front door had a gate with a pool lock. The pool lock was chest-high to an adult, out of the reach of most small children. Outside the portable was the ESE playground, which was completely fenced, with a gate and lock. The playground contained a swing set and other equipment. A child could not exit the playground without adult assistance. The school bus pick-up area was just outside the playground gate. Between January 22, 2007, and February 12, 2008, Mr. Burkett disciplined Ms. Brown 16 times, through verbal warnings, written reprimands, letters of concern, and recommendations to the superintendent for suspensions. The first documented disciplinary action was a "written confirmation of a verbal warning" from Mr. Burkett to Ms. Brown dated January 22, 2007. The letter references "many issues" that had been discussed at a January 19, 2007, conference, stating that Ms. Brown had already addressed several of the issues discussed. Mr. Burkett then wrote: I would like to target the issue of "falling asleep" during nap time as a very critical area which must be corrected. You stated that it has happened because you have to model and cuddle with the children to get them to fall asleep and that your para was present. I instructed you to sit up while cuddling the children to sleep and that you must not ever fall asleep. Please know any instance from this point on that jeopardizes the health and safety of the students will result in further disciplinary action. On February 8, 2007, Mr. Burkett issued a written reprimand to Ms. Brown. The reprimand letter stated that on February 2, 2007, at 12:45 p.m., Mr. Burkett walked through Ms. Brown's class to observe. The room was quiet and dark. All the students were lying down, and some of them were already asleep. Mr. Burkett observed that Ms. Brown was lying down with several students. She was not asleep, and she responded when spoken to by Mr. Burkett, who nonetheless felt obliged to issue a written reprimand in light of his prior warning. Ms. Brown signed the reprimand letter, acknowledging receipt, but also wrote the following: "Due to this concern I have quit sitting w/any students. I sit in my chair w/students around my desk. Any parent concerned about their child not napping will be directed to the office (Burkett or [assistant principal Sharon] Neal)." On February 9, 2007, Mr. Burkett issued a "letter of concern" to Ms. Brown regarding conferences held on February 2, 5, and 8, 2007. The letter discussed a number of concerns that had been voiced by parents or school administrators. Ms. Brown's high school student assistant had not submitted the required application to obtain volunteer status and would be barred from the classroom until her paperwork was completed. An unauthorized man had been seen in Ms. Brown's class. The man was an old classmate of Ms. Brown's and was helping her to plan a class reunion. Mr. Burkett informed Ms. Brown not to conduct personal business during the school day. A parent observed that Ms. Brown was "always on her cell phone." Ms. Brown had been repeatedly cautioned about cell phone use, and the letter of concern directed her not to have her personal cell phone on her person during the school day. Another parent observed that nap time appeared to last for two hours. Mr. Burkett instructed Ms. Brown that nap time should be only one hour long. The letter of concern also addressed the issue of parents dropping off students to Ms. Brown's class prior to the 7:15 a.m. start of the school day. Mr. Burkett told Ms. Brown that he would intervene on her behalf to stop the children from arriving early, but Ms. Brown stated that she was voluntarily arriving early to take the children and would voluntarily continue to do so. On the same day as the letter of concern, February 9, 2007, Mr. Burkett also issued a "written documentation of a verbal warning" to Ms. Brown. This warning concerned Ms. Brown's having left the campus from 11:30 a.m. to 12:05 p.m. on February 7, 2007, without permission from the school's administration. The letter stated that Mr. Burkett was forced to send the assistant principal, Ms. Neal, to Ms. Brown's classroom to assist with the supervision of the students in Ms. Brown's absence. Ms. Brown's excuse was that she had to take her niece to work at McDonald's. Mr. Burkett's letter of concern emphasized that, whatever the emergency, Ms. Brown was required to make arrangements with the administration before leaving the campus. On March 6, 2007, Mr. Burkett issued a written reprimand to Ms. Brown "for your continued use of your personal cell phone during student contact time." On March 1, 2007, Mr. Burkett observed Alice Staton, Ms. Brown's paraeducator, sitting on the swing set holding a child. Ms. Staton yelled across the playground, "Get back in that room." Mr. Burkett saw three of the ESE Pre-K students outside the classroom, running up and down the portable's ramp. The door and gate to the portable were open. Mr. Burkett "corralled" the three students back into the classroom, where he observed three other students in Ms. Brown's chair, swinging it in circles. Mr. Burkett then noticed that Ms. Brown was speaking on her cell phone. She did not notice that Mr. Burkett had entered until he walked all the way across the room toward the students in her chair. According to the written reprimand, Ms. Brown then "placed the phone down discreetly and proceeded to use a loud tone of voice instructing the class to clean up." Ms. Brown submitted a handwritten response to the letter of reprimand. She did not deny the facts as stated by Mr. Burkett, but offered her justification for this "unexpected" incident: A parent called my cell # at the time we were having issues with a student who was screaming & crying. Alice walked this student outside to make the room quieter. She accidentally left door & gate open. I thought she told me she would be outside. I didn't hear the "playground" due to the child screaming. I turned[,] was helping students clean when my cell phone rang. It was a parent checking on her child. I may have been on the phone 2-3 seconds. Mr. Burkett had walked in. Alice had eye contact with the outside students & I had eye contact with the ones in the room. At the hearing, Mr. Burkett testified that, although Ms. Brown's use of her personal cell phone violated the directive of his February 9, 2007, letter of concern, his overriding motivation in reprimanding Ms. Brown was the lack of supervision he observed during the incident. He believed that the children running on the ramp were out of the sightline of either Ms. Brown or Ms. Staton, and he observed that Ms. Brown was so engrossed in her telephone conversation that she did not even see him enter the portable. By letter dated March 14, 2007, Superintendent McKinzie suspended Ms. Brown without pay for a period of one day effective March 22, 2007.3 The grounds for this suspension were the events of March 1, 2007, as recited in Mr. Burkett's written reprimand of March 6, 2007, as well as the following, as stated in Superintendent McKinzie's letter: Later that same day [March 1], it was reported to the principal that not only did you use your cell phone again, but you asked the para assigned to your class to "keep watch" for you. This statement was provided for [sic] in writing by another employee and notarized. This action took place immediately after you had just left a conference with Mr. Burkett in which you were given a directive not to have your cell phone in class. The principal discussed with you his concerns regarding student safety and told you that you could not provide adequate supervision while on personal cell phone calls. By letter dated April 18, 2007, Superintendent McKinzie suspended Ms. Brown without pay for one day effective April 25, 2007. The grounds for the suspension were stated as follows in Superintendent McKenzie's letter: This action is based on an incident which happened on March 19, 2007. On that date, Principal Matt Burkett was notified that you had allegedly hit a high school student on the campus of Spook Hill Elementary. Your classroom paraeducator witnessed the altercation and attested that you had engaged in an argument during student contact time. She stated that you slapped the student in the face and that she saw you follow the student in your truck off campus. Principal Burkett spoke with you regarding the alleged incident. You admitted that you did slap the student in the face and that you did get in your truck and follow her off campus. By your own admission, you stated that there had been a prior altercation off campus with this particular student. Clearly, you allowed a personal situation to escalate into a violent confrontation on the school campus. Although you did apologize for your actions, your behavior was totally unprofessional and cannot be condoned. Your lack of judgment in this situation jeopardized the safety of the students in your charge. Please remember that teachers are role models for their students and should behave accordingly. On May 8, 2007, Mr. Burkett wrote a letter of concern to Ms. Brown to inform her of continuing inadequacies that Mr. Burkett was observing in Ms. Brown's job performance. The letter notes that on March 8, 2007, a Professional Development Plan ("PDP") had been established "to address the learning environment in your classroom." A PDP is a plan to help struggling teachers in areas of inadequate performance. A team of professionals is assigned to work with the teacher to aid in professional development and address the teacher's inadequacies. In his letter of concern, Mr. Burkett noted the following specific PDP items that were "in need of positive change": Circulate and monitor with appropriate proximity during all activities. (On 3/20 on your observation I marked you for remaining at desk. On 4/15, 4/26, 4/30, and 5/7 as I walked into your room you were sitting behind your desk.) Provide structured hands-on activities during outside play. (I have taken photos of your play area, as well as the equipment for outside play activities. They indicate a need to enhance and organize the learning environment.) Constantly engage and interact with students. (Please refer to item number one.) Daily schedule will be posted. (On 4/26 Mrs. Neal and I addressed the need to post your daily schedule and be certain that times are indicated.) IEP's must be in compliance.[4] (I showed you the report in which two of your students were listed as out of compliance.) Safety issues will be jointly addressed and teacher will comply with all administrative directives. (On 5/4/07 you called for the school resource officer. . . . I entered your classroom and observed you talking on your personal cell phone. You have also been tardy to work which is an issue we have addressed in the past.) On September 5, 2007, Mr. Burkett wrote a letter to Superintendent McKinzie recommending that Ms. Brown be suspended, based on "her history of jeopardizing the safety and welfare of her students" and in light of the following specific incident: On August 31st I went into Ms. Brown's Pre-K room and she was not present. I noticed a student tipped over strapped into a high chair. I asked the para-professional where the teacher was and she stated "I do not know." She said the teacher stated she "had to get out." The para also stated she did not place the child in the high chair. According to the para the teacher had been gone for about ten minutes. I was in the room for five minutes before the teacher returned. Ms. Brown sent me an email and stated she went to the restroom and laminated some things. I am very concerned because Ms. Brown has explained on several occasions the severity of the needs her students have and the need for more time to have in small group teaching. Therefore, while I understand the need for a bathroom break, I do not understand the need to choose this critical time to laminate. Secondly, she left a child in a high chair as a "time out" which is an inappropriate use of the chair. Furthermore, she left the child for an excessively lengthy time and in fact she left the classroom while the child was still restrained. As a result of her actions the child turned over in the high chair. At the hearing, Mr. Burkett conceded that the child's IEP stated that he could be strapped into the high chair for feeding. However, neither Ms. Brown nor Ms. Staton offered affirmative testimony that the child was in fact strapped into the high chair for feeding. Because no testimony or other evidence was presented to contradict the version of events set forth in Mr. Burkett's letter to Superintendent McKinzie and adopted by Mr. Burkett at the hearing, Mr. Burkett's version is credited. By letter dated September 10, 2007, Superintendent McKinzie suspended Ms. Brown without pay for five days effective September 17, 2007, through September 21, 2007, as a "result of your continued lack of attention to the safety and welfare of the students in your charge."5 In a letter dated January 25, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended "as a continuation of the progressive discipline section 4.4-1 of the Collective Bargaining Agreement." Mr. Burkett noted that Ms. Brown received a verbal warning on February 9, 2007, for leaving campus without permission, and was suspended on April 25, 2007, for an incident that included her leaving the campus. Mr. Burkett's letter described the current incident as follows: On January 17, 2008, Ms. Brown once again left campus without permission during her contact hours which extend to 3:15 pm. At approximately 2:25 pm transportation contacted the school to ascertain the whereabouts of a Pre-K child because they had a bus at Spook Hill waiting on a student. The teacher placed the child on another bus. However, transportation needed to confirm the child was placed on a different bus before they allowed the bus to leave. As a result of Ms. Brown leaving the campus without informing the administration there was an unnecessary delay in getting vital transportation information regarding what bus the child was placed on by the teacher. Furthermore, there was tremendous stress placed on the office staff as they tried locating and contacting Ms. Brown in order to confirm the child was safely on the bus. In our conference on January 23, 2008, regarding the matter Ms. Brown acknowledged she left campus for a personal matter and that her actions were incorrect and she apologized for the incident. Unfortunately, Ms. Brown chose not to follow clearly stated written instructions from her previous disciplinary actions. By letter dated January 30, 2008, signed by Mr. Ciranna, assistant superintendent for Human Resource Services, Superintendent McKinzie suspended Ms. Brown for five days without pay effective February 6 through February 12, 2008, based on Mr. Burkett's recommendation. In a letter dated February 11, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended for failure to complete her students' progress reports as required by their IEPs. The letter stated, in relevant part: I met with Ms. Brown on January 31st, 2008, and asked if she completed progress reports for her students. She replied that she did not have time to complete them. I gave her a directive to complete her student's progress reports and I provided her coverage. On February 1st, 2008, Ms. Brown sent me a letter which stated: "Yesterday when we met you asked me about my progress reports. I spoke from memory and indicated that I was way behind because of the time it takes me to work with my one on one student. Because of the assistance you provided, I was able to review the information and found I was not as far behind as I had indicated." According to a report provided to me by Chris English (Network Specialist) not a single progress report was created by Ms. Brown prior to January 31st, 2008. To further understand the severity of this offense it should be noted that Ms. Brown is currently on a Professional Development Plan (PDP) and one of the strategies is written as follows: "All IEP's and IEP notices must be in compliance and correctly written. Teacher will provide a one week notice if coverage is needed so she can prepare the IEP." Prior to our meeting on January 31st, 2008, Ms. Brown has never requested coverage to complete progress reports as part of the student's IEP. In a written response, Ms. Brown stated that she had "asked at least twice in the past for assistance to complete IEP paperwork a week in advance and was not provided coverage." While she stated her general disagreement with Mr. Burkett's letter, Ms. Brown did not otherwise contradict any of the specific factual assertions made by Mr. Burkett. At the hearing, Mr. Burkett testified that prior to February 12, 2008, he had a discussion with the School Board's director of employee relations about terminating Ms. Brown's employment, but that Superintendent McKinzie decided to suspend Ms. Brown on this occasion. By letter dated February 12, 2008, signed by Mr. Ciranna, Superintendent McKinzie suspended Ms. Brown for one day without pay effective February 20, 2008, based on Mr. Burkett's recommendation. By letter dated February 29, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be terminated as an employee with the School Board. This recommendation led to the suspension and termination letter of March 3, 2008, the relevant terms of which are set forth in the Preliminary Statement above. Mr. Burkett based his recommendation on "multiple issues extending over the course of the past year," as well as the following specific events occurring during February 2008: During Ms. Brown's recent suspension she acted insubordinately by coming on school campus during her suspension. I met with Ms. Brown on February 4, 2008, and I gave her a directive not to come on campus for any reason during her suspension days. Ms. Brown later called me on the phone and asked if she could come after the school day to do her lesson plans. I again stated to her that she could not be on school campus during her suspension days. On February 11, one of Ms. Brown's five suspension days, it was brought to my attention that she was on campus and delivered lunch to her paraprofessional. I have a statement from Ms. Brown in which she admits she delivered lunch. I also have a statement from the paraprofessional which states, "Yesterday, I called Ms. Brown about the Valentine's list. She called me back and asked if I wanted her to bring us lunch. I told her no and she is not supposed to be on campus. She said it was alright if she went to the office. She called me later again, and told me to come to the back of the lunch room door to get the lunch. . ." Additionally, I have a statement from my secretary in which Ms. Brown asked her "not to let Mr. Burkett know that she was here because she would get in trouble." Ms. Brown was previously suspended on March 22, 2007, in part for asking her paraprofessional to "watch out" for administration so she could insubordinately use her cell phone. Ms. Brown's actions depict an employee that has an established pattern of deliberate insubordination. Most concerning of all, in a four day span of time between February 19, 2008, and February 22, 2008, Ms. Brown continued to display a pattern of allegations [sic] of child endangerment. The following is a brief description of the incidents: On February 19, 2008, Mrs. Jenny Baker, a paraprofessional, was covering her classroom so I could serve her notice of suspension for February 20th. Mrs. Baker stated that upon Ms. Brown's return to class she asked if she could leave. Since the teacher did not respond Mrs. Baker left the portable to attend to her other duties and noticed three Pre-K students behind her and Ms. Brown was nowhere in sight. It was obvious that these students had left Ms. Brown's classroom without her supervision. Mrs. Baker waited for the other para to return from the buses to escort the kids back into the class. On February 19, 2008, I went to the classroom at approximately 2:30 (after Mrs. Baker had informed me of her concern). I noticed Ms. Brown at her computer behind her desk. The door to the portable was wide open and two students were sitting out of the teachers [sic] view behind the "cubby." These students could have readily left the classroom without Ms. Brown's knowledge. It was previously recommended by Ms. Sherwin (Educational Diagnostician) on February 5, 2008, that "in general, I think rearrangement of your classroom. . . may help. . . . I am particularly concerned with the arrangement that has the area between your door and shelving not visible to you at all times." On February 21, 2008, Mrs. Neal, the assistant principal, was walking through Ms. Brown's portable. Upon entering she noticed Ms. Brown getting up from her desk. The para was placing a band aid on another child. Ms. Brown stated that she was printing progress reports. Mrs. Neal stated the room was "a mess" and she began to straighten a piece of carpeting so the kids would not trip over it and hurt themselves. Mrs. Neal then counted the students and noticed one was missing. "Ms. Brown . . . looked puzzled." The paraprofessional and the teacher began to look for the missing child. She was found by Ms. Brown in the bathroom. The duration of time the child was missing was approximately five minutes. On February 22, 2008, at approximately 10:40 a.m. I was walking the exterminator to the classroom. As we walked up to the portable I noticed the front door wide open and two Pre-K students were on the ramp running. One tripped and fell. I rushed to the gate because I thought he was hurt, but he was already up and running down the ramp again. Clearly, these two students were not able to be observed by Ms. Brown and were not under her supervision or control. The exterminator and I entered the gated area and then Ms. Brown came out yelling for the boys to "get back in here." * * * I am entirely in favor of helping employees grow professionally as can be established by allowing Ms. Brown to create a second Professional Development Plan. However, she has established a pattern of allegations of child endangerment that results in disciplinary action. In addition, her multiple serious violations of school and district policies over the course of time have also established a pattern necessitating disciplinary action. It is for this reason that I am recommending termination pursuant to Article 4.4-1 of the collective bargaining agreement. As to the February 11, 2008, incident described in his letter, Mr. Burkett testified that Ms. Brown knew that she was not to come onto the campus while under suspension, because he had discussed the matter with her during one of her previous suspensions. Mr. Burkett testified that he was following School Board policy in prohibiting Ms. Brown from entering the campus during her suspension. Ms. Brown testified that as of February 11, 2008, she had never been told not to come on the campus while serving a suspension. Ms. Brown stated that she simply wanted to do something nice for Ms. Staton, her paraeducator, by way of bringing lunch. Ms. Brown had known Ms. Staton since the former was herself a student at Spook Hill. While Ms. Brown's good intentions may be credited, her testimony that no one had told her not to come on campus during a suspension is not credible. Her stealth in bringing lunch to Ms. Staton indicates that she knew she should not be there. Further, Mr. Burkett's letter quotes a statement from Ms. Staton in which she told Ms. Brown that she was not supposed to be on the campus. Ms. Staton testified at the hearing, and Ms. Brown had ample opportunity to question her about the events of February 11, 2008, and her statement to Mr. Burkett. However, Ms. Staton was questioned only about the February 21, 2008, incident. Mr. Burkett testified that the February 19, 2008, incidents were of greater concern to him because of the child safety issues involved. Mrs. Baker, the paraeducator who covered the class for Ms. Brown, testified that Ms. Brown was quiet when she returned from her meeting with Mr. Burkett. Ms. Brown sat at her computer. Mrs. Baker announced that she was now leaving the class, but Ms. Brown did not respond. Mrs. Baker walked out to the gate. When she started to close the gate, she looked behind her and saw three children who had followed her out of the class. Ms. Brown was still in the classroom, apparently unaware that the children had walked out. Mrs. Baker saw that Ms. Staton was outside placing another child on a school bus. On her way back into the classroom, Ms. Staton took charge of the three children who had followed Mrs. Baker out the door. Mrs. Baker returned to the main office. When Mr. Burkett asked how things had gone, she reported the incident to him. Ms. Brown testified that she did not recall the incident. Mrs. Baker's version of this incident is credited. After receiving the report from Mrs. Baker, Mr. Burkett was concerned for the children. He went to the class and saw Ms. Brown sitting at the computer behind her desk, and two students sitting out of her view though the door to the portable was wide open. Mr. Burkett testified that experts from the School Board had already come into the portable and discussed the room set-up with Ms. Brown, particularly the fact that there were obstacles to her having a clear line of vision from the desk to the door. A bookshelf that extended from the "cubbies" blocked her view of the doorway. Mr. Burkett noted that the two children could have walked out of the classroom without Ms. Brown seeing them. Ms. Brown testified that the two students in question rode the last bus from the school. Ms. Staton had already left the classroom to go on bus duty. Ms. Brown left the door open so that she could see the bus as it came around the side of the portable. The two students sat there playing as Ms. Brown worked at her desk. No one else was in the classroom. Ms. Brown could hear the children as she worked and testified that she could have heard them go out of the room because the front ramp squeaks. She also could have seen them through the windows. Ms. Brown was adamant that she knew the children in her class and she knew where these two children were, sitting there waiting on their bus. This was their daily routine, and there was nothing unusual about this day other than Mr. Burkett's entrance. Ms. Brown testified that Mr. Burkett said nothing about his concerns for the children's safety at the time. The only discussion was "something about the cubbies." Mr. Burkett came to the room the next morning and said the cubbies had to be moved. He and Ms. Brown moved the cubbies before the children arrived, making the door more visible from Ms. Brown's desk. Ms. Brown testified that the room had been arranged the same way since school started in August and that she was concerned because consistency is vitally important to students who are functioning at the level of 18 to 24 months of age. Any change to their environment can throw off their routines and cause them to have bad days. Ms. Brown did not believe that moving the cubbies was necessary. As to the events of February 21, 2008, assistant principal Sharon Neal testified that she went to observe Ms. Brown's classroom on that date. As she walked in, Ms. Neal saw Ms. Brown sitting at her computer. She asked Ms. Brown how many students were in the class, and was told that all the students were present. Ms. Neal counted the students, then recounted them. Then she told Ms. Brown and Ms. Staton that if everybody is here today, then someone is missing. Ms. Brown and Ms. Staton began to count, then began searching the room. After a minute or two of searching, they wondered if perhaps Student D. was in the bathroom.6 They opened the bathroom door and found Student D. Ms. Neal discussed with Ms. Brown and Ms. Staton what could have happened with the child going missing for a period of several minutes. Ms. Brown testified that when Ms. Neal stated that a child was missing, she responded that the child had to be somewhere in the classroom. She knew this because the front door was equipped with a buzzer that went off when the door was opened, and Ms. Brown's desk was next to the back door. She and Ms. Staton scanned the portable and quickly concluded that the child must be in the bathroom. Ms. Brown testified that Student D. was a very large child whose functional age was eight months. She wore pull-up diapers, though it was becoming difficult to find diapers to fit the child. Ms. Brown and the child's mother had been working diligently on potty training the Student D. This was the first time she had gone to the bathroom on her own. Ms. Staton confirmed their surprise at finding Student D. on the potty, because they did not believe her capable of going to the bathroom alone. Ms. Staton conceded that neither she nor Ms. Brown knew where the child was before Ms. Neal noted that a student was missing. As to the events of February 22, 2008, Mr. Burkett testified that there had been an insect problem in the portable, and therefore an exterminator had been called. As Mr. Burkett walked the exterminator down to the classroom, he noticed the door of the portable was "wide open." Two Pre-K students were running down the ramp, and one of them tripped and fell. Mr. Burkett was concerned for the student's safety, but the child popped up and started running again. Mr. Burkett estimated that another 30 seconds passed before Ms. Brown came out of portable, "yelling for the kid to get back inside." Mr. Burkett noted that this was yet another incident in which "the door was open, the kids were on the loose, and not properly supervised." Ms. Brown testified that the students were working at their regular daily schedules when the phone rang in the classroom. The school secretary was calling to tell Ms. Brown that Mr. Burkett and the exterminator were on their way to spray the classroom. The secretary told Ms. Brown that she needed to have the children out of the portable by the time Mr. Burkett and the exterminator arrived. Ms. Brown and Ms. Staton began trying to quickly move the students out of the portable. Ms. Staton secured the women's purses, then went outside to unlock the shed on the playground as instructed by the secretary. Meanwhile, Ms. Brown was lining up the children to proceed out the door. Ms. Brown turned momentarily to get diapers from the changing table. As she turned, two of the children took off and ran out the door. Ms. Brown testified that these were two boys who were prone to running away. She knew who they were because she could hear them laughing. She turned and ran to the door and called their names. When she got to the ramp, Mr. Burkett was helping one of them up from where he fell. Ms. Brown testified that it usually takes from five to ten minutes to line up the children, get the diapers and other supplies, and proceed out the door as a class even when the move is planned, and she has Ms. Staton to help with the children. In this situation, she was moving the children on short notice, and Ms. Staton was busy securing the purses and unlocking the shed. There is no real contradiction between Mr. Burkett's and Ms. Brown's versions of this incident, save for Mr. Burkett's estimate that 30 seconds passed between the time the student fell on the ramp and Ms. Brown appeared at the door of the portable. It is found that Mr. Burkett's estimate of the time is likely exaggerated due to his dismay at the situation and that Ms. Brown in all likelihood came out the door only a few seconds after the boys. Ms. Brown's version of events, while credible, calls her judgment into question. She described a somewhat frantic decampment from the portable, as if she believed Mr. Burkett would order the exterminator to begin spraying whether or not the children were out of the classroom. There is no reason to believe that Mr. Burkett would not have preferred a slow but orderly procession to the scene he encountered. Except where noted in the above findings of fact, Ms. Brown did not contest the factual allegations made against her. Ms. Brown's defense was twofold. First, the great majority of incidents cited as grounds for discipline were run of the mill occurrences in a Pre-K ESE classroom. Second, the sheer number of disciplinary actions establish a concerted effort by Mr. Burkett to build a record against Ms. Brown by seizing any opportunity to find fault with her job performance. As to her first defense, Ms. Brown testified as follows regarding the four incidents described in Mr. Burkett's letter recommending termination: Those are things that can happen at any moment at any time in an ESE Pre-K classroom. There's children that pull away from their teachers, their parents. These children are sent to our room to get some structure, and to help them to cognitively, socially, behaviorally develop, because they are delayed in all that development. Ms. Brown's point is valid as to some of the disciplinary incidents cited in the termination letter. The February 19, 2008, incident essentially involved a difference of opinion between Mr. Burkett and Ms. Brown. He believed that she should have the children in her line of vision at all times. She believed it was safe to be able to hear what the two children were doing and testified that this had been her daily practice all year. The February 21, 2008, incident was a matter of Student D. unexpectedly taking the initiative to go to the bathroom alone. The February 22, 2008, incident involving the exterminator was simply a matter of two students bolting for the door as soon as Ms. Brown's back was turned, something that could happen at any time with a group of Pre-K children. Ms. Brown is correct when she argues that the events of February 19 through February 22, 2008, standing alone, would provide slim grounds for the dismissal of a veteran ESE teacher. However, these events were not the sole factual basis for the School Board's decision to terminate Ms. Brown's employment. The termination letter makes clear that the School Board considered these events to be emblematic of a long history of Ms. Brown's "pattern of failing to properly supervise the students under your care." The termination letter references all of Ms. Brown's previous suspensions and, expressly, references Ms. Brown's insubordination in entering the campus during her suspension despite Mr. Burkett's directive that she was not to come onto campus for any reason during that time. Ms. Brown had been suspended five times between March 14, 2007 and February 12, 2008. The March 14, 2007, suspension was for insubordination regarding the use of her personal cell phone. The April 18, 2007, suspension was for a physical altercation with a high school student, followed by Ms. Brown's leaving the campus in pursuit of the student. The September 10, 2007, suspension was for the inappropriate use of a high chair for student discipline, resulting in the student's falling while strapped into the chair. The January 30, 2008, suspension was for leaving the campus for personal reasons, without permission or notice to the administration, resulting in confusion as to whether a student was on the correct bus. The February 12, 2008, suspension was for Ms. Brown's failure to complete student progress reports. The events of February 19 through February 22, 2008, must be viewed in light of Ms. Brown's disciplinary history since at least her first suspension on March 14, 2007. In that light, these relatively minor events indicated to Mr. Burkett and the School Board that Ms. Brown's performance showed no prospects of improving. A consistent theme throughout Ms. Brown's disciplinary history, in addition to her continuing insubordination, was her failure to adequately supervise the children in her care. The fact no child was seriously injured in any of these events was fortuitous, not a reason to minimize or overlook Ms. Brown's often casual approach to minding these very young ESE students. The School Board had taken every disciplinary action available to it under the Teacher Collective Bargaining Agreement, including multiple suspensions short of moving for termination. This last point addresses Ms. Brown's second argument, that the number of disciplinary events indicates a vendetta on the part of Mr. Burkett. No evidence was offered that Mr. Burkett bore any personal animus toward Ms. Brown. The evidence indicated that Ms. Brown was under additional scrutiny because of her disciplinary history. The evidence further indicated that Mr. Burkett made reasonable effort to assist Ms. Brown in improving her performance, including the establishment of a PDP and the appointment of a team of professionals to observe her class and offer advice. The number of disciplinary events indicates, if anything, forbearance on the part of Mr. Burkett and the School Board, imposing multiple suspensions rather than moving precipitously to the final step of termination. The evidence did not establish that Mr. Burkett was motivated by anything other than the desire to ensure the safety of the students at Spook Hill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Deana Brown as a teacher at Spook Hill Elementary School. DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2009.
