The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is a duly- constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing in this case, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1996.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent, a Behavior Management Teacher (BMT), due to Respondent's inappropriate interaction with a student on April 16, 2014, as alleged in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a BMT at Allapattah Middle School (Allapattah), a public school in Miami-Dade County, Florida. Respondent has been employed by the School Board for approximately 14 years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the provisions of the collective bargaining agreement in effect between Miami-Dade Public Schools and United Teachers of Dade (UTD contract). During his employment with the school district, Respondent took a break from teaching to attend divinity school. He became a permanent teacher in 2007 and worked in Miami Senior High School. Respondent transferred to Allapattah in 2011 at the request of its assistant principal. During the 2011-2012 school year, Respondent served as a SPED reading, language arts, and math teacher. During the 2012-2013 school year, Respondent held dual roles as the SPED Chair and a SPED teacher. In November 2013, Respondent was offered and accepted the position of BMT at Allapattah. The BMT is considered the "first in line" to deal with a student who causes a disturbance in the classroom by behavior such as cursing or fighting. If called by a teacher to assist or a BMT observes a student acting out in such a way as to disrupt a classroom, the BMT intervenes to try and get both sides of the story regarding why the student is upset and tries to redirect or modify the student's behavior so that the student can remain in the classroom. If that is unsuccessful, the BMT removes the student to a special education classroom where the BMT uses other techniques, such as discussing respect, to calm the student. The BMT may also recommend an in- school or out-of-school suspension. Respondent was in a graduate program for guidance counseling when offered the BMT position. He accepted the position because he felt the BMT role would help him better understand the student population with emotional/behavioral disorders (EBDs). As the BMT, Respondent was assigned 30 students with severe behavioral issues. Respondent also continued some duties of the SPED Chair position until February 2014. Respondent received uniformly satisfactory performance evaluations throughout his teaching career with Petitioner. He was not previously counseled or disciplined for any reason. On April 16, 2014, Towanda Seabrook, the SPED Chairperson, entered a seventh-grade classroom for observation and saw two students being disruptive. N.H. was cursing the classroom teacher, and D.J. was talking with other students. Ms. Seabrook directed these students to leave the classroom and go with her to the SPED office/classroom. The SPED office/classroom is in Allapattah's classroom 1165. It is a large room with several work stations and a conference table that are used by the EBD counselors, teachers, and the BMT. Attached and opening into the SPED office/classroom are the offices of the SPED Chairperson and EBD counselors. After going with Ms. Seabrook to the SPED classroom, N.H. directed his profanity and ranting at Ms. Seabrook calling her a "motherfucker," "whore," and "bitch" and repeatedly saying "fuck you" to her. Ms. Seabrook attempted to defuse the situation by explaining that she is a mother and asking N.H. how would he like it if someone said these types of graphic things to his mother. Ms. Seabrook chose not to go "toe to toe" with N.H. because she was aware that his exceptionality, EBD, causes him to be unable to control his emotions and temper. N.H. is known to curse and use profanity directed at teachers. Despite N.H.'s continued use of graphic language, Ms. Seabrook felt she had the situation under control and attempted to complete some SPED paperwork. Respondent entered the classroom and heard N.H.'s barrage of profanity and aggression directed at Ms. Seabrook. Respondent was familiar with N.H. due to N.H.'s history of being disrespectful to teachers, running out of class, name calling, defiance, and fighting. Respondent worked with N.H. on an almost daily basis attempting to help N.H. stay in school and modify his behavior to facilitate learning. Respondent described N.H. as one of the most difficult students with whom he was assigned to work. Because the BMT is supposed to be the first line of response to a belligerent and disruptive EBD student, Respondent immediately tried to diffuse the situation by reasoning with N.H. N.H. proceeded to call Respondent (an African-American male) "Nigger," "Ho" (whore), "pussy," "punk," and repeatedly said "fuck you." This tirade by N.H. went on for almost 45 minutes. During this time, N.H. and D.J. sat at the conference table in the classroom. Throughout the 2013-2014 school year, Respondent had tried numerous strategies to assist N.H. in controlling his behavior and temper at school-–all with no success. On April 16, 2014, after listening to N.H. verbally abuse Ms. Seabrook and himself, Respondent decided to use an unorthodox strategy to get N.H. to understand the gravity of his words and to calm down. Respondent asked N.H. if he knew what "fucking" means. N.H. responded "a dick inside a pussy." Respondent replied, "A dick inside a pussy? Maybe if you were fucking you wouldn't behave this way," implying that if N.H. was having sex, perhaps he would be better able to control his emotions at school. Ms. Seabrook overheard this portion of the conversation and it made her uncomfortable so she left the room. She believed this method used by Respondent was inappropriate and not likely to be successful, and she intended to talk to Respondent about it before advising the principal. Notably, Ms. Seabrook did not feel the need to intervene or immediately report the conversation and testified that in response to N.H.'s provocation, she may also have said "fuck you" back to N.H. This graphic discussion was also overheard by Deborah Phillips, an EBD counselor, who was in an adjacent office with the door open. After N.H. called Respondent a "pussy," Respondent asked N.H. if he knew what one was, had ever seen one or knew what to do with one. Ms. Phillips did not intervene or report the conversation. According to Ms. Phillips, this extremely graphic and profane interaction between N.H. and Respondent was only a minute or two. Ms. Phillips testified that she would not go toe to toe with N.H. because she believed it would only elevate the behavior. While Respondent and N.H. were arguing, and Respondent asked N.H. to define the words he was using, D.J. used his cell phone to video and audio record approximately 25 seconds of the conversation. In the recording, Respondent is heard telling N.H. to spell "Ho." N.H. answered "hoe," and Respondent stated, "yea nigga-–that's what I thought." During the brief recording, D.J. is heard laughing in the background. The conversation had the desired effect. N.H. started laughing and immediately calmed down. Respondent was able to escort N.H. to the principal's office where it was decided that N.H. would not be suspended, but rather Respondent would drive N.H. home. During the ride home, N.H. was calm and there were no further incidents or inappropriate discussions. The following school day, D.J.'s mother brought the recording to the attention of the principal who initiated an investigation. Respondent immediately expressed remorse and regret that he used this unconventional method of defusing N.H.'s anger. Respondent admitted participating in the graphic dialogue and acknowledged that it was inappropriate. As a result of the investigation, Respondent was suspended effective June 19, 2014, without pay and recommended for termination from employment. Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent violated School Board Policy 3210, Standards of Ethical Conduct, but failed to demonstrate by a preponderance of the evidence that Respondent committed any of the other charged offenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing punishment consisting of suspension without pay from employment through the end of the first semester of the 2014-2015 school year for violation of School Board Policy 3210 that does not amount to misconduct in office. DONE AND ENTERED this 20th day of November, 2014, 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 20th day of November, 2014.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 15 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed as a social studies teacher at Palmetto Middle School (“Palmetto”), a public school in Miami-Dade County, Florida. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement (“CBA”) between the School Board and the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred on March 18, 2014, during the 2013-2014 school year. On March 18, 2014, Respondent was co-teaching a seventh grade social studies class with Vivian Taylor. Ms. Taylor is another social studies teacher at Palmetto. K.W. was a female student in the class. At that time, K.W. was approximately five feet tall and weighed ninety pounds. Prior to March 18, 2014, K.W. sat in an assigned seat in the back of the classroom of the social studies class co- taught by Respondent and Ms. Taylor. On March 17, 2014, K.W. displayed disruptive behavior in the classroom. On March 18, 2014, as the bell rang to signal that class was about to begin, K.W. and other students entered Respondent’s and Ms. Taylor’s classroom. When K.W. entered the classroom on March 18, 2014, Respondent instructed K.W. that she could not sit at her seat in the back of the classroom, and that she needed to sit at a desk in the front of the classroom. Instead of walking toward her newly assigned seat in the front of the classroom, K.W. disregarded Respondent’s instructions and attempted to walk in the opposite direction toward her prior assigned seat in the back of the classroom. Respondent then stood in the aisle, stepped in front of K.W., and “blocked” her “path” toward the seat in the back of the classroom. Respondent blocked K.W.’s path in an attempt to re-direct her to her newly assigned seat in the front of the classroom. In his effort to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom, Respondent and K.W. made very slight physical contact with each other. The physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. At hearing, Respondent denied that he ever made physical contact with K.W. Ms. Taylor, the only other purported eye-witness to the incident, who testified at the hearing on behalf of the School Board, was asked by the School Board’s counsel to describe whether Respondent and K.W. ever made physical contact. In response, Ms. Taylor testified: It was just their chest, just the top body, because Mr. Chandra-Das is a bit taller than her, so when he stepped up, that’s what touched. Ms. Taylor described the physical contact between Respondent and K.W. as very slight--“it was just a touch,” it lasted “[a] second, half a second.” After Respondent blocked K.W.’s path, K.W. stepped back and put her head down. Ms. Taylor testified that K.W. was visibly upset and crying. Ms. Taylor immediately told K.W. to leave the room and go directly to the assistant principal’s office. Respondent’s supervisor, Principal Lux, acknowledged at the final hearing that there is no written directive or School Board policy which forbids a teacher from blocking the path of a student. Principal Lux further testified that he has never “disciplined a teacher in the past for blocking the path of students and not letting the student go wherever they want,” and that he is unaware of any circumstance in his 15 years with the School Board in which the School Board has disciplined an employee for blocking the path of a student. The persuasive and credible evidence adduced at hearing demonstrates that there was, at most, very slight physical contact between K.W. and Respondent as Respondent attempted to block K.W.’s path of travel and re-direct her to her newly assigned seat in the front of the classroom. Respondent did not intend to make physical contact with K.W., and the physical contact between Respondent and K.W. was minor, inadvertent, and lasted no more than one second. The evidence does not establish that Respondent pressed his body against K.W., as alleged in the Notice of Specific Charges.2/ At no time did Respondent grab, push, shove, punch or place his hands on K.W. in any way. Respondent was justified and acted in an appropriate manner in blocking K.W.’s path in the manner that he did, which was in an effort to re-direct K.W. to her newly assigned seat. On March 20, 2014, Respondent was advised of an investigation with regard to the March 18, 2014, incident involving K.W. On that date, Respondent was specifically advised by his supervisor, Principal Lux, in a letter: You are prohibited from contacting any complainant(s) and/or witness(es), with the intent to interfere with the investigation of the above listed allegation(s). Subsequent to Respondent’s receipt of this directive, Respondent contacted Ms. Taylor and advised her that he was the subject of an investigation regarding the March 18, 2014, incident involving K.W. Respondent showed Ms. Taylor the letter, but he did not attempt to influence her in any way. Respondent did not violate the directive of Principal Lux, because Respondent did not contact Ms. Taylor “with the intent to interfere with the investigation.” In sum, the evidence at hearing failed to show that Respondent’s conduct with regard to the incident in the classroom on March 18, 2014, involving K.W. constitutes misconduct in office, gross insubordination, or a violation of School Board policies. In sum, the evidence at hearing failed to show that Respondent violated Principal Lux’s directive not to contact any witnesses “with the intent to interfere with the investigation.” Accordingly, the School Board failed to prove that Respondent’s communications with Ms. Taylor constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order rescinding the 15-day suspension of Respondent with back pay. DONE AND ENTERED this 17th day of November, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2014.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida. The Events Giving Rise to this Proceeding Respondent has extensive educational training and experience in working with disabled and special needs students for many years. Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness. At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003. Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida. The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years. During both school years, Respondent's ESE students were disabled and most of them were nonverbal. Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies. The 2011-2012 School Year Background Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom. Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them. The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable. The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals ——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that." Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals. After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified, credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration. On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them. On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind. The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain. Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses. On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus. Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012. Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations. Allegations in Amended Administrative Complaint In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N. Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair. At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances. Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N. Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work. The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect. Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible. By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by her ponytail. Respondent's account of the incident is credible and persuasive.6/ Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident. The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct. For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive. Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N. Student J.M. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants. Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz, J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until 1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms. Cherelus did not testify regarding this alleged incident.9/ Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing. J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know. The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive. Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face. Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/ Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/ On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this alleged incident, and her testimony was based on J.M.'s limited statement and gesture. Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified: [a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it. McLaughlin reported the incident to the abuse hotline.13/ Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up. Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair. J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/ The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band. Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint. Student A.S. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck. Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name. Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can. Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A. The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A. Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint. Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S. Student C.A. Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree." Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it. However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules. Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/ Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint. The 2012-2013 School Year Background Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class. Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year. That year, approximately nine ESE students were assigned to Respondent's classroom. The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/ In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them. The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/ The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work. The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable. Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital. In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her. To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time. Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance. On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day. On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues, update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time. On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me." At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me." Thereafter, Long spoke with Respondent to get her version of what had happened. At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom. Brown was removed from Respondent's classroom on the morning of January 24, 2013. At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015. Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes." Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013. On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health. On January 25, 2013, Jobes was removed from Respondent's classroom. On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section. In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree." Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/ Allegations in Amended Administrative Complaint In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below. Student M.M. In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them. At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish. Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips. Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M. would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what M.M. was and was not eating. On the day at issue, M.M. requested a bag of chips. Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother. Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell M.M. she had to eat the chips or force her to eat them. The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident. The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother. Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P. In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate. The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get T.P. to eat his lunch. Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating. Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident. Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors. On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened. Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive. Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint. In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me." Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P. Brown testified that she actually saw Respondent grab T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified: I didn't understand him clearly, you know. So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms. T. hurt me, you see, Ms. T. hurt me.' The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him. The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred. Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P. In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately 20 minutes. Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions. Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action. Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair. When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth. To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use. Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it. One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry. Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families. On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/ Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself. Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view. Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position. Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint. Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly. Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony. Respondent flatly denied ever having placed ice on M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom. Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations. Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R. In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air. The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and he eventually calmed down. At that point, Respondent removed C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom, C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day. Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it. It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R. However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident. Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior. However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy. As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred, C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11 a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day. It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/ Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath. As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day. The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having. Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day. Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the restroom with M.P., consistent with their established routine after the students returned from lunch. The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident. By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive. Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner. Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive. Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive. Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground. Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation. Respondent testified that at times, it was necessary for her to physically focus students' attention on their work. At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work. Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint. Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8. Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence. Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation. Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him. Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making statements such as "they're so stupid," and that she was "happy that God never gave her kids like them." Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner. Failure to Provide Statement On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination. Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation. Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding scheduling the appointment and other matters with respect to Respondent's statement. At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent. Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement. Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement. Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her. Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013. Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013. At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/ IV. Findings of Ultimate Fact Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on each of these bases, to suspend Respondent without pay and terminate her employment. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Further, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.30/ For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint. Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter. Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified. As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence. Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances. Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance. Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one. In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive. Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment. Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013. As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so. Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement. Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement. Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order, reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination. Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/ DONE AND ENTERED this 22nd day of October, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2015.
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2018.
The Issue Whether just cause exists to sustain Respondent’s ten-workday suspension from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
Findings Of Fact At all times material hereto, Petitioner was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. Respondent was hired as a full-time teacher at Mandarin Lakes K-8 Center Academy (“Mandarin Lakes”) and was employed there as a teacher of emotionally behavior disabled (“EBD”) students when all events material to this case took place. She has been employed in the School District for 14 years and, prior to that, for two years in the School District of Broward County, Florida. She has been an EBD teacher throughout her career. As a teacher, Respondent was subject to School Board policies and the collective bargaining agreement under United Teachers of Dade, as well as the Florida State Board of Education. During the 2019-2020 school year, D.J. and I.N. were students in Respondent’s classroom. D.J. was in the EBD class, which is a class for students with an emotional disability. No evidence of record concerning whether I.N. is an EBD student, as well, was presented. I.N. was a student along with D.J. in Respondent’s class who is currently in the fourth grade, however, they are not friends he said. I.N. had heard Respondent yell at D.J. prior to this incident. On October 10, 2019, D.J. asked Respondent to use the bathroom and Respondent said, “No.” D.J. said he was going to pee on himself. This was known by Respondent as behavior she had seen often after the lunch period when the students were not eager to return to school work. Respondent did not allow D.J. to use the bathroom. Respondent called D.J. “pissy,” and it caused the students in the class, including I.N., to laugh. After that, D.J. started to get mad or angry, and D.J. started to hit his head with his hand. Also, D.J. felt “bad” about the situation. Respondent did nothing to stop the students from laughing at D.J. Respondent then asked D.J. if he wanted to be Baker Acted after she observed him picking a scab, which caused it to bleed, and hitting himself on the head. When he got home later that day, D.J. was still upset, so he told his mother what happened at school and asked her what a Baker Act was. D.J.’s siblings have severe mental health issues and have been Baker Acted before; therefore, it was concerning to C.R. (D.J.’s mother) that Respondent made the Baker Act comment to D.J. D.J. told his mother that Respondent called him “pissy” because he went to the bathroom a lot. D.J. was taking medication at the time, of which Respondent was aware, that caused him to have to use the bathroom a lot. D.J. was seven years old when he testified at hearing and was recalling an incident that happened when he was five to six years old. After the incident, D.J. started to say that he wanted to be Baker Acted so he could be with his brother, who at the time was subject to a Baker Act commitment. At that time, C.R. wrote a statement detailing the incident from her perspective, which was consistent with her testimony at hearing. Respondent admitted to using the word “pissy.” Respondent also admitted to making a comment about Baker Acting D.J. because D.J. pulled at a scab and rubbed the blood on himself and also because he smacked himself on the head. Later, Respondent admitted during cross-examination that the scab incident did not occur on the same day as the Baker Act comment and was unrelated. She further admitted that she is not qualified to Baker Act someone and was not serious about D.J. being Baker Acted. This was an “unfortunate incident,” and Respondent apologized for it. D.J. has remained Respondent’s student for nearly a year and a half since the two incidents occurred in 2019. Respondent has maintained a good relationship with both D.J. and his mother. The School Board and the United Teachers of Dade, the classroom teachers’ union, have agreed to be bound by the principle of progressive discipline and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Miami-Dade County School Board issue a written reprimand to Respondent. DONE AND ENTERED this 1st day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2021. COPIES FURNISHED: Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008.
