The Issue Whether there is just cause to terminate Mr. Altheim's employment.
Findings Of Fact The School Board is the entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Mr. Altheim has been employed with the Miami-Dade County Public Schools for 15 years. During the 1999-2000 school year, Mr. Altheim was a teacher at North Miami Middle School. He was involved in a conference-for-the-record; he was directed to follow all School Board rules and to conduct himself within the community in a proper manner. During the 2002-2003 school year, Mr. Altheim was still working at North Miami Middle School. He was involved in a conference-for-the-record, where he was again directed to adhere to all Miami-Dade County School Board rules and regulations. He was also directed to cease and desist from inappropriate contact with the students, and to conduct himself in a manner that would reflect credit upon himself and the Miami-Dade County Public Schools. Ten years later, during the 2012-2013 school year, Mr. Altheim was employed as a civics teacher for John F. Kennedy Middle School. Karen Robinson was the Principal during this school year. On a school day in December 2012, Mr. Altheim took his class to the cafeteria for lunch. While in the cafeteria, he noticed three girls who were out of place; because he knew which students should be in the cafeteria during that time period, he concluded that the three girls should be elsewhere. Mr. Altheim took one student to Mr. Sanon's class, and informed Mr. Sanon that the student was attempting to skip his class. The other two he took to see the Assistant Principal, who was on the phone when the group arrived at his office. Mr. Altheim left the students in the Assistant Principal's office, shortly thereafter returning to check on the matter. The students were still waiting, and the Assistant Principal was still on the phone. Mr. Altheim told the Assistant Principal that the girls were "skipping" and started to walk away. He overheard one of the girls, N.S., tell the other girl that Mr. Altheim was a rapist, and that he touched people. Mr. Altheim told Ms. Robinson that N.S. had called him a rapist, and Ms. Robinson directed Mr. Altheim to write a referral for N.S., for using inappropriate language with a teacher. N.S. was described as a challenging student by both Ms. Robinson and Mr. Altheim. Prior to this incident, Mr. Altheim had written referrals for N.S. numerous times for behavioral problems. Ms. Robinson met with N.S., and asked her why she used the term "rapist" to refer to Mr. Altheim. N.S. accused Mr. Altheim of rubbing girls' necks and shoulders, including hers, and gave Ms. Robinson the names of three other girls who could corroborate her story. Ms. Robinson spoke to approximately five students, including the three girls that had been identified by N.S. Some of the girls accused Mr. Altheim of massaging their necks and shoulders, and one accused him of brushing her bangs away. According to Ms. Robinson, all of them reported feeling uncomfortable with the physical contact. None of these students' written statements or oral statements were entered into evidence. Instead, 13 other students testified by deposition. Twelve of them never saw Mr. Altheim touch any student inappropriately. Most of them saw Mr. Altheim pat students on the back or on the shoulder, or shake a student's hand, when congratulating a student for a job well done. They consistently testified that he did so in a congratulatory manner, but never in an inappropriate manner. One student, D.P., claimed that he had seen Mr. Altheim wrap his arm around a girl's waist, but added that no one else saw this occur, and admitted to being friends with N.S. and the other accusers. D.P.'s testimony was not corroborated by any other student's testimony, and is not found credible. Notably absent from the record is any alleged victim statement; not a single student testified that he or she had been inappropriately touched by Mr. Altheim. Mr. Altheim credibly testified that he never inappropriately touched any student, and that he never massaged student's necks or shoulders. He may have patted students on the shoulder or back, or shaken students' hands when congratulating them, but there was nothing inappropriate about the physical contact. The greater weight of the evidence establishes that Mr. Altheim is not guilty of misconduct in office, gross insubordination, or of a violation of any School Board policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade School Board enter a final order dismissing the charges against Mr. Altheim and reinstating him with full back pay and benefits. DONE AND ENTERED this 22nd day of November, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 November, 2013. COPIES FURNISHED: Mark Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110 29605 U.S. Highway 19, North Clearwater, Florida 33761 Heather L. Ward, Esquire Miami-Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto Carvalho, Superintendant Miami-Dade County Public Schools Suite 912 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 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 committed the violations alleged in the Amended 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, Ludlam Elementary School (Ludlam)), and for otherwise providing public instruction to school-aged children in the county. Respondent has approximately 30 years of teaching experience, and has been a classroom teacher for the School Board since December 1999. As a School Board employee, she has not been the subject of any disciplinary action aside from the 30-workday suspension that is being contested in the instant case. Respondent is currently co-teaching a kindergarten class at Ludlam, the only school at which she has taught during her employment with the School Board. For the eleven years she has been at Ludlam, Respondent has been a kindergarten teacher exclusively, except for the 2009-2010 school year, when she taught second grade. Among the second graders in her class that school year were A. H., A. P., and J. M.3 Dr. Georgette Menocal is now, and was during the 2009- 2010 school year, the principal of Ludlam. At a Ludlam faculty meeting, attended by Respondent, that was held at the beginning of the 2009-2010 school year, Dr. Menocal gave a PowerPoint presentation in which she reviewed, for those in attendance, key provisions of Ludlam's 2009-2010 Faculty/Staff Handbook (Handbook), including the following excerpt relating to "Classroom Management Procedures": CLASSROOM MANAGEMENT PROCEDURES Teachers should make every effort to handle routine classroom discipline problems by conferring with the student, contacting parents, and referring the student to the counselor. If a serious violation of school rules has occurred, a "Student Case Management Referral Form" should be completed and forwarded to the administration. A response will be forthcoming. * * * It is the teacher's responsibility to manage his/her class and to follow the procedures outlined in the Code of Student Conduct. All level 1 behaviors are to be addressed by the teacher. Most level 2 behaviors can be addressed by the teacher and/or counselor. Level 3 (and above) behaviors require a referral to an administrator. Each student referral must be made on a Student Case Management (SCM) referral form. The disciplinary policies of the school should be administered on a consistent basis throughout the school. The CODE OF STUDENT CONDUCT should be reviewed with students at the beginning of each school year. NEVER - Use corporal punishment of any kind (hitting, tapping or tying students, having students stand for long periods of time, etc.)[4] The School Board's Code of Student Conduct-Elementary (Code) (which Ludlam teachers were directed by the Handbook to "follow") provided, among other things, that "Level 3 . . . behaviors" included "Fighting (serious)" and that "Fighting (serious)": Occurs when two or more students engage in physical force or violence against each other and they become so enraged that they do not stop when given a verbal command to do so, OR physical restraint is required, AND/OR someone is injured to an extent that requires immediate first aid or medical attention. Any serious fighting incident that causes injury or requires medical attention would result in a suspension. If the principal or designee determines that one student or a group of students attacked someone who did not fight back, the aggressors should receive punishment for battery, aggravated battery, and/or bullying, depending on the facts, and will likely be arrested. Otherwise, administrators will report all other incidents involving mutual participation as Fighting (Serious) without regard to who was the original aggressor. On February 25, 2010, during a mathematics lesson Respondent was teaching, two female students in her class, A. H. and A. P., were involved in an altercation in the back of the classroom, during which A. H. hit A. P. with a book. Respondent intervened and separated the two girls by physically restraining A. H., who struggled to escape Respondent's grasp. As she was holding A. H., Respondent instructed A. P. to hit A. H. back. A. P. did as she was told, striking A. H.5 with a book.6 The incident (Incident), which lasted approximately a minute, was witnessed by J. M., who was in her seat and had turned around to observe the fracas.7 Notwithstanding that she had physically restrained A. H., Respondent did not report the Incident to the school administration (via submission of a completed Student Case Management referral form, as required by the Handbook, or through any other means).8 Following the Incident, the students in Respondent's class left her classroom and went to their Spanish class. Ludlam's assistant principal was subsequently called to the Spanish class. She removed A. H. and A. P. from the class and brought them to Dr. Menocal's office, where Dr. Menocal spoke to them separately. Both A. H. and A. P. told Dr. Menocal about their scuffle earlier that day in Respondent's classroom and how, during this tussle, Respondent had directed A. P. to hit A. H. while A. H. was being held by Respondent. A. H. and A. P. gave Dr. Menocal, at Dr. Menocal's request, the names of three other students who may have witnessed the Incident. The three students9 were brought, separately, to Dr. Menocal's office and questioned by her. Each of the three students confirmed what A. H. and A. P. had told Dr. Menocal. Dr. Menocal asked A. H., A. P., and two of the three other students to whom she had spoken to each write a statement in their own words describing what had happened in Respondent's classroom earlier that day.10 They wrote their statements, separately, in Dr. Menocal's presence. In her written statement, A. H. stated, in pertinent part, "Ms. Grey hold me and then Ms. Grey told her [A. P.] to hit me and then she hit me on my back . . . ." A. P. and the two other children each wrote that Respondent had "let" A. P. "hit" A. H., but they did not specifically state in their written statements that Respondent had told A. P. to strike A. H. After receiving these written statements from the students, Dr. Menocal contacted the School Board police and the Department of Children and Family Services (DCFS) to report what the students had related to her about the Incident. That same day, February 25, 2010, a School Board police officer, Officer San Antonio, was dispatched to Ludlam. Officer San Antonio first spoke with Dr. Menocal and then with various students and Respondent. The following morning, at around 9:00 a.m., Respondent's second grade class put on a performance in the school cafeteria as part of a black history month event attended by parents (Performance). Following the Performance, Respondent invited the parents of her students to follow her and the class back to her classroom so that she could have a brief meeting with them (Post-Performance Meeting). Respondent began the meeting by praising the students' Performance. This praise, however, was short-lived, as Respondent started to complain to the parents about the students' "misbehaving" and "acting up" in class. As an example, she cited the altercation the day before between A. H. and A. P. (without identifying them by name). Respondent told the parents that "two little girls" had "got[en] into a fight" and that she was being accused of and investigated by the police for having "held one of them and [having] told the other girl to hit [the girl being held]." Respondent then said, "And I wouldn't do that" (knowing full well that, in fact, she had done "that"), after which she asked her students (including A. H. and A. P.) who were present in the room with the parents, "Did Mrs. Grey do that?" The students responded, in unison, "No, no."11 Respondent informed the parents that, because she "gets in trouble" when she "gets involved," she no longer would hesitate, when a student misbehaved, to prepare and submit to the principal's office a written referral that would follow the misbehaving student "all the way through high school." Later that morning (on February 26, 2010), at approximately 11:15 a.m., a DCFS child protective investigator, Donald Machacon, arrived at Ludlam to investigate the Incident (which Dr. Menocal had reported to DCFS the day before). After first speaking with Dr. Menocal, Mr. Machacon spoke with A. H., A. P., and three other students in Respondent's class.12 The last person Mr. Machacon interviewed at the school that day was Respondent. During her interview with Mr. Machacon on February 26, 2010, A. P. stated that, although at the time of the Incident she had thought she had heard Respondent instruct her to hit A. H., she must not have heard correctly because Respondent, earlier on February 26th, had spoken to her about the matter and denied ever having had given her such an instruction.13 A. P. attributed her having had misunderstood Respondent to Respondent's having had had a "hoarse voice" the day of the Incident. None of the other children Mr. Machacon interviewed at the school on February 26, 2010, including A. H., claimed to have any recollection of Respondent's ever having had told A. P. to hit A. H. (although each of them did tell Mr. Machacon that A. P. had hit A. H. while A. H. was being held by Respondent). Respondent, in her interview, indicated that she had held A. H. in order to "break up a fight," but she denied having had told A. P. to hit A. H. during the altercation. She also denied having had spoken about the Incident earlier that day (February 26, 2010) with A. H. and A. P. She did acknowledge, however, that she had referenced the Incident in a talk she had had with a group of parents shortly after the Performance that morning. She further acknowledged that, the day before (February 25, 2010), she had been questioned about the Incident by Officer San Antonio, who was at the school investigating the matter. By letter dated February 26, 2010, and received by Respondent on March 1, 2010, Dr. Menocal formally informed Respondent, in writing, that "[a]n investigation [was] being conducted" of a complaint made by an unnamed "juvenile" complainant alleging that Respondent had "held" her "so that another student could hit her." Among the parents who had attended the Post- Performance Meeting on February 26, 2010, was M. M., J. M.'s mother. M. M. left the meeting concerned about the safety of her daughter in Respondent's classroom given what Respondent had told the parents, particularly about the fight between the "two little girls" that the police had been called to the school to investigate.14 Moreover, M. M. thought that it was inappropriate for Respondent to have discussed the matter at the meeting. The following week, M. M. made arrangements to meet with Dr. Menocal so that she could air her grievances about Respondent. (These grievances were not only about what had occurred at the Post- Performance Meeting. They also concerned "classroom management issues.") Sometime before this meeting between M. M. and Dr. Menocal took place, M. M. learned more about the Incident from J. M. during a discussion the two had following a physical altercation between J. M. and J. M.'s sister. M. M. had initiated the discussion by asking whether J. M. believed that J. M.'s sister had deserved to be hit by J. M., a question to which J. M. responded in the affirmative. When M. M. inquired as to why J. M. felt this way, J. M. answered, "Well, it's like in Mrs. Grey's class, when you get hit, you hit back." In response to her mother's request that she elaborate, J. M. told M. M. about the Incident and how, after A. H. had hit A. P., Respondent had grabbed ahold of A. H., told A. P. to hit A. H. back,15 and then announced to the class, "This is what happens in Mrs. Grey's class, when you hit; you get hit back." M. M. had her meeting with Dr. Menocal approximately a week after the Incident. During her audience with Dr. Menocal, M. M. raised a number of complaints that she had about Respondent. She talked about, among other things, the comments and remarks Respondent had made to the parents and students in attendance at the Post-Performance Meeting, including those relating to the Incident and its aftermath. On March 8, 2010, Respondent was temporarily reassigned, "until further notice," from Ludlam to the School Board's Region III Office, where she engaged in "professional development" activities. By letter dated May 18, 2010, which she received on May 19, 2010, Respondent was advised that the School Board police had completed its investigation of the Incident and found probable cause to believe that she had violated School Board Rule 6Gx13-4A-1.21. The letter further advised Respondent of her right "to file a written exception" with the School Board's Office of Professional Standards (OPS).16 Respondent submitted to OPS her "written exception," by letter dated May 25, 2010. She subsequently sent to OPS a "[r]evised [v]ersion" of this letter, which read, in pertinent part, as follows: Pursuant to your letter dated May 18, 2010, informing me of the outcome of your investigation (SPAR #R-09002), I wish to exercise my right to provide a written exception to your findings. I take exception to your findings of probable cause to the violation because no such violation occurred. My intervention was simply to stop the aggressing child from hitting the other child and preventing a fight, possibly leading to injuries, between the two children. Below please find specific items with which I take issue . . . . * * * Det. Torrens also states that two students who were interviewed as witnesses told him exactly the same thing which, significantly, was not that I told one child to hit the other as the information from the two combatants indicate. These children also provided him with previously written statements. I would like to see the original documents; to know who took the statements and who was present. I would also like the children to be interviewed on tape as to the veracity of the statements, being cognizant of the fact that these are eight year olds who often repeat what they hear or are told.[17] I did not tell the one child to hit the other, nor did I hold one child so that the other could hit her. I was merely holding back the very aggressive child, who was struggling with me to get loose so that she could attack the other child. It was at this time that the other child, who was free, hit the child I was holding. There were seventeen children in the class at the time I separated the two girls. All seventeen children saw what happened and they all heard what happened. I would like all seventeen children to be separately interviewed on tape. * * * I also wish to clarify the issue of the administrative letter and the suggestion that I discussed the investigation with the parents. This incident occurred on Thursday, February 25th 2010. Officer San Antonio asked me what happened in my classroom on the very same Thursday that it occurred, and I told her that I saw one child crying and I asked her what was the matter. She told me that the other child had hit her, so I separated them. The aggressing child then got angry and wanted to fight, so I held on to her, when the other child came over and tapped her on the back. The Black History function was held on the following Friday (2/26/10). I had no discussions with any parents about the incident. In fact I was not aware that there was an investigation until Mr. Machacon came to the school the afternoon of that same Friday, and told me there were these allegations against me. I certainly could not discuss an investigation that I did not know about.[18] Furthermore, Dr. Menocal did not give me the administrative letter until the following Monday afternoon (3/1/10) and I got assigned to the region the following Monday (3/8/10), eleven days after the incident. I hope this letter helps to provide additional information which will aid in a more comprehensive fact gathering process to enable a fair and just review, with the concomitant overturn of the probable cause findings. These charges I take very seriously as I have dedicated my entire adult life (over thirty years) to the vocation of educating young children without a single incident. I have assiduously guarded the propriety of this noble profession and will resist any attempt to impugn my integrity or besmirch my character. On June 2, 2010, OPS held a conference-for-the-record, at which Respondent had an opportunity to verbally respond to the probable cause finding made by the School Board police. By letter dated July 21, 2010, Assistant Superintendent Rojas advised Respondent that OPS had made a "recommendation that [she] be suspended without pay 30 workdays via an agenda item [that would] be presented to [the School Board] at the meeting scheduled for September 7, 2010." In a subsequent letter, dated August 26, 2010, Assistant Superintendent Rojas informed Respondent that the Superintendent would be recommending to the School Board, at its scheduled September 7, 2010, meeting, that Respondent receive a 30-workday suspension. The School Board followed the Superintendent's recommendation and suspended Respondent without pay from September 8, 2010, through October 19, 2010. Furthermore, it directed Respondent to report to duty at Ludlam on October 20, 2010. Respondent has served her suspension. By letter dated September 8, 2010, Respondent "request[ed] a hearing to be held before an administrative law judge" to contest her suspension. The matter was thereafter referred to DOAH. A. P.'s and A. H.'s depositions were taken in anticipation of the hearing. At her deposition, A. P. declined to answer any questions. A. H. was deposed on December 6, 2010. When asked about the Incident, she stated that she had been hit by A. P. while being held by Respondent. It was her testimony that Respondent was simply "trying [to] keep [her and A. P.] apart," and that Respondent did not tell A. P. to hit her, an assertion that was in direct conflict with what A. H. had related to Dr. Menocal the day of the Incident, when the matter was fresh in A. H.'s mind and she had not yet been exposed to the remarks that Respondent would make at the Post-Performance Meeting.19 A. H. further testified during her deposition that, after the altercation, Respondent "called the office and the office came."20
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order upholding Respondent's 30-workday suspension for the reasons set forth above. DONE AND ENTERED this 8th day of March, 2011, 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 8th day of March, 2011.
The Issue The issue in this case is whether just cause exists for Petitioner, the St. Lucie County School Board, to terminate the employment of Respondent, Josephine Knight.
Findings Of Fact Petitioner is the School Board of St. Lucie County, Florida (hereinafter referred to as the "School Board"). Respondent, Josephine Knight, is employed by the School Board pursuant to a professional services contract. Ms. Knight has been employed as a teacher for approximately 15 years. At all times relevant to this matter, Ms. Knight was assigned to work at St. Lucie Elementary School (hereinafter referred to as the "Elementary School"). At all times relevant to this matter, the principal of the Elementary School was Dr. Jayne Hartman. Prior to the 1997/1998 school year, Dr. Hartman interviewed Ms. Knight for a position at the Elementary School and subsequently recommended her for a position. Ms. Knight was assigned as a temporary fourth grade teacher during the 1997/1998 school year. Ms. Knight was assigned as a third grade teacher for the 1998/1999 school year. Ms. Knight had been assigned to fourth grade class while employed by the School Board until this year. Ms. Knight was disappointed with her new assignment. During her first two years of assignment to the Elementary School, Dr. Hartman observed Ms. Knight and made suggestions for improvement. Rather than accepting Dr. Hartman's efforts to constructively criticize her, Ms. Knight grew resentful and defensive. Although the evidence failed to support Ms. Knight's characterization of her treatment during the 1997/1998 and 1998/1999 school years, Ms. Knight felt that she was being subjected to "unremitting harassment from her principal." Ms. Knight responded to Dr. Hartman's criticism by attempting to transfer from the Elementary School to another school within the School Board's district. Ms. Knight was unsuccessful in finding another school that would accept her. Dr. Hartman recommended Ms. Knight's reappointment at the Elementary School for the 1999/2000 school year. Prior to the commencement of the 1999/2000 school year Dr. Hartman directed all staff, including Ms. Knight, to attend a staff breakfast on August 16, 1999. The breakfast was to be followed by a meeting of all teachers in the media center of the Elementary School. Dr. Hartman had arranged for teachers assigned to teach the same grade to sit together during the meeting and had prepared handouts for each teacher. Those handouts were placed at each teacher's assigned seat. Ms. Knight failed to attend the breakfast on August 16, 1999. She did attend the teachers' meeting, but arrived late and refused to sit at the table with the other third grade teachers. On August 18, 1999, Ms. Knight again arrived late for a staff meeting. Later in the morning of August 18, 1999, Ms. Knight wrote a note to Dr. Hartman informing her that she intended to use comp time during lunch. Rather than follow school policy, Ms. Knight left during lunch without first determining whether her use of comp time had been authorized. On August 19, 1999, Dr. Hartman spoke to Ms. Knight in the morning and told her that she needed to speak with her. Ms. Knight went to see Dr. Hartman later that same day. Dr. Hartman verbally counseled Ms. Knight. Dr. Hartman spoke to Ms. Knight about her lateness in arriving at staff meetings, her use of comp time prior to getting approval, and her refusal to sit with other third grade teachers as she had been directed. Dr. Hartman asked Ms. Knight to explain her actions, but Ms. Knight took notes and refused to answer Dr. Hartman. Due to Ms. Knight's misconception that she was being harassed by Dr. Hartman and in anticipation of the August 19, 1999, counseling session, she had prepared a letter of resignation the night before the August 19th meeting with Dr. Hartman. During the August 19th meeting, Ms. Knight gave Dr. Hartman the letter (hereinafter referred to as the "Resignation Letter"). In pertinent part, Ms. Knight wrote the following in the Resignation Letter: The intended purpose of this letter is to inform you of my resignation from my present position as a third grade teacher so soon after starting my fifteenth year in the system. After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I've been under you supervision. This included lack if [sic] administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude towards students, minorities, and me. These are conditions in which no one should be subjective [sic] to in the workplace. In fact, it seems to almost define going postal. You and I know the countless times I have tried to relocate to another school unsuccessfully. Which means as [sic] September 2, 1999 I will be resigning. [Emphases added]. The accusations Ms. Knight made in the Resignation Letter concerning Dr. Hartman, to include the allegations that she knew of Ms. Knight's unsuccessful efforts to transfer, are incorrect. Those accusations were the result of Ms. Knight's inability to deal with constructive criticism. After fully considering the Resignation Letter and Ms. Knight's negative attitude toward her, Dr. Hartman reasonably concluded that Ms. Knight had threatened her and she reasonably became concerned for her personal safety. On the evening of August 19, 1999, Dr. Hartman contacted Russell Anderson, the Assistant Superintendent of Human Resources, and reported the incident to him. Dr. Hartman also contacted Jane Grinstead, her immediate supervisor, and read the Resignation Letter to her. Finally, Dr. Hartman contacted Dave Morris, the Coordinator of Safety/Security for the School Board, and advised him of Ms. Knight's reference to "going postal." The morning of August 20, 1999, School Resource Officer McGee met with Dr. Hartman. Officer McGee was assigned to stay with Dr. Hartman the entire day because of the threat contained in the Resignation Letter. Mr. Russell, Dr. Hartman, and Officer McGee met with Ms. Knight and a union representative on August 20, 1999, to discuss the Resignation Letter. When asked about her reference to "going postal," Ms. Knight admitted that she understood that it meant to "kill or shoot your boss," or words to that effect. Following the meeting of August 20, 1999, a Friday, Ms. Knight was informed that she would be placed on temporary duty assignment from Monday, August 23, 1999, until the effective date of her resignation, September 1, 1999. On Monday, August 23, 1999, Ms. Knight withdrew her resignation. Because it had not been approved by the School Board, the resignation was considered rescinded. In light of the threat of violence contained in the Resignation Letter, the School Board informed Ms. Knight on August 24, 1999, that she was suspended without pay pending a review and final resolution of the matter. Based upon a review of Ms. Knight's personnel file, Mr. Russell concluded that Ms. Knight should be terminated from employment with the School Board. In addition to the Resignation Letter, Mr. Russell considered certain incidents described in paragraph 7 of a Statement of Charges to Terminate Respondent Josephine Knight's Employment with Petitioner (hereinafter referred to as the "Statement of Charges"). Mr. Russell conferred with Dr. William Vogel, the Superintendent of Schools, concerning the matter. Mr. Russell recommended that Ms. Knight should be terminated from employment with the School Board. By letter dated October 6, 1999, Dr. Vogel informed Ms. Knight that he would be recommending her termination from employment to the School Board due to her "violation of School Board Policies." Ms. Knight timely requested a formal administrative hearing to contest Dr. Vogel's decision. The Statement of Charges further defines the basis for the School Board's action in this case: That the foregoing acts as set forth in this statement and attached exhibits, constitutes just cause under Fla. Stat. s 231.36(1)(a) to terminate Josephine Knight's employment with the St. Lucie County School Board. See Fla. Stat. s 231.36 and School Board policy 3.57 attached as Exhibit O. School Board policy 3.57 provides, in pertinent part, the following anti-violence in the workplace policy: All employees will refrain from any speech, conduct, activity, or behavior of any type that is reasonable interpreted as abusive, profane, intolerant, menacing or intimidating. No speech, behavior, activity or other conduct shall occur or be made by any employee where it is reasonably interpreted that the primary motivating intent is to intimidate, threaten or abuse any person in the workplace. The School Board has zero tolerance for violations of this policy. Any person employed by the School Board who communicates a threat of violence to any other School Board employee is subject to termination. The particular incidents which the School Board considered in concluding that there was just cause for Ms. Knight's termination and that the foregoing policy had been violated by Ms. Knight included the comment about "going postal" in the Resignation Letter and the incidents described in paragraph 7 of the Statement of Charges. While the incidents described in paragraph 7 of the Statement of Charges may indicate a lack of judgment, unacceptable treatment of students, and a hot temper on Ms. Knight's part, they are not relevant in considering whether Ms. Knight displayed conduct contrary to School Board policy 3.57 or just cause. Ms. Knight's Resignation Letter, however, does support the School Board's decision. Based upon the events of August 16 and 18, 1999, Dr. Hartman reasonably concluded that Ms. Knight's comment about "going postal" in the Resignation Letter was primarily motivated by an intent to "intimidate, threaten or abuse" her. The day after the Resignation Letter was provided to Dr. Hartman, Ms. Knight admitted to Dr. Hartman and Mr. Russell that she knew what the terms meant and no other reasonable explanation has been offered by Ms. Knight to explain why she made the comment. Ms. Knight's suggestion at hearing that she was merely trying to get the School Board's attention so that she would be transferred to another school was not convincing and, even if true, would not diminish the reasonableness of Dr. Hartman's reaction to the threat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board finding just cause for the termination from employment by the School Board of Josephine Knight. DONE AND ENTERED this 18th day of August, 2000, 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 18th day of August, 2000. COPIES FURNISHED: Elizabeth Coke, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Lorene C. Powell, Esquire Florida Education Association 1718 East 7th Avenue, Suite 301 Post Office Box 5675 Tampa, Florida 33675 Dr. William Vogel, Superintendent St. Lucie County School Board 2909 Delaware Avenue Fort Pierce, Florida 34947 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 101 Tallahassee, Florida 32399-0400
Findings Of Fact Davis began working with the Board on September 16, 1974, as a custodian in the maintenance department. In 1980 Davis was transferred to the Stewart Street Elementary School as a custodian. In 1988 Davis was transferred to the Carter-Parramore Middle School as a custodian. On March 23, 1992, Davis was suspended by the Superintendent with pay. On March 25, 1992, Davis was recommended for termination and was suspended without pay by the Board. The suspension and recommended termination were the result of accusations made by Tomeka Mitchell and Tiesha Parker that Davis had made sexually explicit comments to them and had inappropriately touched them. Tomeka and Tiesha both testified regarding their versions of what occurred on January 28, 1992. Two other students, Cheryl Denise Roberts and Lashea Alexander also testified. Based on the demeanor of these witnesses and on the pervasive conflicts in their versions of the events, it is determined that their testimony is not credible or worthy of belief. Tomeka testified that on January 22 or 23, 1992, she and "Sherry" were going to meet Tiesha near the gym and that Davis stopped them, put his arms around Tomeka and Tiesha and said "This is what he wanted" and opened her button. She said nothing else happened. However, she apparently reported to HRS that Davis had touched her breast and unbuttoned her blouse. HRS determined that there was no evidence to verify these allegations. [See Finding of Fact #14] Tiesha said she was going to meet Tomeka, who was already talking to Davis, and when she and Tomeka began to walk away, Davis asked where they were going, called them over to where he was standing, and told them he "wanted some." When they asked what he "wanted," she said Davis pulled their heads together, tried to open her blouse which was buttoned, and then he "did it to Tomeka and looked down her shirt." Tiesha said that Cheryl Roberts and Lashea Alexander were standing next to them and all four discussed what happened and decided to go to the office and report it. On cross-examination, Tiesha acknowledged that Tomeka's blouse was unbuttoned before Davis called them over. Cheryl testified that she saw Davis look down Tomeka's blouse and that she (not Tiesha) was with Tomeka when Davis said he "wanted some." However, when Cheryl talked to Mr. Pace, the principal, on January 28, 1992, she said she had not seen anything, but was reporting what she had been told by Tomeka and Tiesha. Additionally, the information given by Cheryl at the time of the incident, the testimony she gave in her deposition on May 14, 1992, and her testimony at the hearing were inconsistent. Finally, Cheryl never mentioned that Davis had allegedly tried to look into Tiesha's blouse. Lashea's testimony was also contrary to that of Tomeka and Tiesha. According to Lashea's version, Tomeka and Tiesha had told her that Tomeka was afraid to go to class because Davis might say something to her, so Tiesha walked Tomeka part way to class. Lashea was near the gym with Cheryl and she saw Davis try to look into Tomeka's blouse. Lashea and Cheryl discussed what they had seen and Tomeka and Tiesha came back to the gym. Lashea told Tomeka that Davis had tried to look into her blouse and Tomeka said "Yeah, he tried to, but I didn't let him." Lashea denied that Davis tried to look in Tiesha's blouse. However, Mr. Pace recorded that on January 28, 1992, Lashea had not seen anything and had only told him what she was told by Tomeka and Tiesha. The only conclusion that can be drawn from the demeanor of these girls and from the differences in their stories is that no sexually explicit statements were made by Davis and that he did not he touch them in an inappropriate manner. The version of the incident given by Davis is credible and worthy of belief. On January 28, 1992, Davis saw Tomeka and Tiesha in the open corridor near the gym after the final bell for sixth period had rung. They were heading away from the gym. Davis asked them what class they were supposed to be in, and by their responses he thought they were supposed to be in gym. Tomeka's blouse was open and the top few buttons were undone. Davis told her to button her shirt up and he said he was sure that her parents wouldn't want her going around campus "looking like a 10 whore." Davis then told them they should be in class and he put his hand on the upper arm of each girl to guide them in the direction of the class. When it appeared they were going in the correct direction, Davis left them. Davis is a credible witness and his statements at all times between January 28, 1992, and the hearing have been consistent and forthright. According to Mr. Pace, the principal, and Lt. Morris, the school resource officer, Davis is a man of his word who is known to be honest and trustworthy. Further, Davis' reputation in the community is one of honesty and truthfulness. John D. Mathers, a Child Protective Investigator for HRS, sent a letter to Bryant dated March 18, 1992, and therein stated "The victim's statements of language addressed them by Dr. Davis [sic] meets departmental guidelines to verify the allegation of sexual exploitation, i.e. indecent solicitation of a child or explicit verbal enticement, and closing of report with classification of proposed confirmed." While this sentence is so poorly written as to render it unintelligible, Bryant interpreted it as saying that HRS had found that Davis had made inappropriate and explicit sexual comments and that these allegations of sexual exploitation were verified. In fact, the letter from Mr. Mather doesn't quite say that. Additionally, Mather said in his letter that Tomeka Mitchell told him that Davis had touched her left breast and had unbuttoned her blouse, but that no other witness verified Tomeka's allegations, and that those allegations of sexual maltreatment were not classified as proposed confirmed. The letter to Davis from Bryant dated March 23, 1992, advised Davis that the reason for the suspension and recommended termination was Davis' violation of Gadsden County Board Rule 5.112 which provides in pertinent part: Any member of the non-instructional staff may be dismissed by the School Board during his term of appointment, when a recommendation for dismissal is made by the Superintendent, giving good and sufficient reason therefor. Good and sufficient reason shall include but not be limited to: * * * (h) Violation of law, State Board of Education Rules, or School Board Rules. Upon investigation, it has been determined that on January 22, 1992 and January 28, 1992, you made inappropriate and explicit sexual comments to several female students at Carter- Parramore Middle School. The Department of Health and Rehabilitative Services has also completed its investigation and has advised me that based on its investigation and interviews with the victims, their statements regarding your comments verify the allegations of sexual exploitation. Such behavior is violative of Gadsden County School Board rules. This determination by Bryant was based on the "information" he was given in the "final report" prepared by Pace and on the HRS letter. Bryant was unable to articulate the bases for his determination, but that is not surprising when the origin and nature of the "information" he considered is examined. The three men who gathered the information were Cecil Morris, the school resource officer employed by the Gadsden County Sheriff's Office; Rocky Pace, the principal at Carter-Parramore; and James W. Brown, Jr., the assistant superintendent for administrative services. According to Bryant, he was given a "final report" from Pace in a letter dated February 7, 1992, (Exhibit 4) with attachments: Pace's letter to Brown dated January 28, 1992, (Exhibit 5); a case report filed by Lt. Morris (Exhibits 9a and 9b); and a letter of reprimand to Davis from Pace (Exhibit 3). In that letter Pace advised that he had a tape of the interviews of Tomeka, Tiesha, a girl named Aquiana Delapierre, and Davis, however, Pace did not give Bryant the tape until sometime in March, 1992, when Bryant asked for it. Bryant never listened to the tape, but instead read written statements from the girls. No one was able to establish where these written statements came from or how they came to be in Bryant's possession. They first appeared in Lt. Morris' case file when he opened it to prepare for a deposition on July 2, 1992. He doesn't know where they came from or who took them. Pace knew nothing about the statements and did not give them to Bryant. Brown also had no knowledge of the statements. Ironically, there was no written statement from Davis. Bryant says he made his determination based on these written statements which he assumed contained the same information as the tape which he never heard. Bryant did not identify any information which he reviewed that set forth Davis' version of the event. The case report prepared by Lt. Morris contained a brief summary of the accusations made by Tomeka and Tiesha, but Morris apparently never even talked to Davis. In fact, from the testimony of Pace, Morris, and Brown, it cannot even be determined whether any investigation was ever done. Morris talked to Tomeka and Tiesha briefly and then took them to Pace. Pace taped statements from Tomeka and Tiesha and Davis. Morris was in and out of the room during the taping of statements from Tomeka and Tiesha, but he did not hear much of what they said. Brown then came to the school and again talked briefly to Cheryl Roberts because he knew her parents and to some other girls, but he doesn't remember their names. Morris had no investigatory responsibilities in the matter. Pace did no further investigation after he took the taped statements because Brown came to the school and Pace was informed that Bryant had put Brown in charge of the investigation. Brown says he was not in charge of the investigation, but had told Pace to do a thorough investigation and then report his findings to Bryant. The only conclusion that can be drawn is that none of these men did any investigation beyond the interviews conducted on January 28 and 29, 1992. The letter from Pace to Bryant (Exhibit 4), which Bryant calls the "final report," clearly states that Pace thought the investigation was still on going and that action beyond the letter of reprimand (Exhibit 3) may have been warranted at a later date. However the only continuing action involved that of HRS in its abuse investigation, which resulted in a letter which advised that no touching or unbuttoning had occurred. Bryant's accusations against Davis were limited to allegations of explicit and inappropriate sexual comments. These reasons given for the suspension and recommended termination must have been based almost entirely on the letter from Mather at HRS since there was so little competent and probative information considered by Bryant. However, the statements made by Mather in his letter are insufficient to show whether HRS actually took any action against Davis in this matter and no evidence was presented to show whether any such action was taken. Since Bryant never reviewed any statement by Davis regarding his version of the events, Bryant never knew that Davis' words and actions in trying to get the girls to go to their class and to get Tomeka to straighten and button her clothes were routine for Davis. From the time Davis was assigned to Carter-Parramore in 1988 until March 18, 1991, a Mr. White had been the principal at that school. White had asked Davis to assist in keeping order at the school and had authorized Davis to open the gym on cold mornings at around 7:15 a.m. so that early-arriving students could be warm. At times, Davis was the only Board employee on campus and he was to remain in the gym to keep order until other adults arrived. White also used Davis' assistance to break up fights and control campus access by non- students during the school day. With White's knowledge and consent, Davis also directed students to go to class when they were not where they were supposed to be, to straighten up their attire or behavior, and to stay in school and not skip class. Mr. White died unexpectedly in March, 1991, and Pace became the acting principal and ultimately the principal. Pace knew of all these activities by Davis and never told him to restrict himself to duties directly related to his job as head custodian. Pace acknowledges that Davis was friendly and interacted with students and pitched in wherever he was needed. It was entirely consistent with these acknowledged activities of Davis that he would stop two students who were outside after the sixth period bell had rung, would direct them to go to class and would insist that one of them straighten her clothing which was unbuttoned and allowed her breasts to be seen. Finally, the alleged matter involving Aquiana Delapierre must be examined. Aquiana made an allegation against Davis that he said he "wanted some" from her also. Aquiana was subpoenaed to testify at the hearing but she failed to appear. All other documentation of these allegations constitutes hearsay and absent her live testimony, that hearsay cannot form the basis for any findings of fact. Exhibit 9a is the report prepared by Lt. Morris regarding Aquiana's allegations. It is insufficient to support a finding about the alleged incident. Davis was employed pursuant to an annual contract. His contract had been renewed yearly for the preceding eighteen years. Davis had always received satisfactory job ratings. Because of the recommended termination and Davis' suspension in March, 1992, no recommendation or action was taken to renew his annual contract for the 1992-93 school year. Davis' contract for the 1991-92 school year expired on June 30, 1992. Davis has no statutory entitlement to renewal of his contract, but no evidence was presented to show any reason why his annual contract would not have been renewed but for this case. Further, Davis' position has not been filled by another employee. The clear fact is that Davis' contract would have been renewed but for these wrongful allegations and this action which followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Gadsden County enter a Final Order and therein: Award to Charlie C. Davis back pay for the period from March 25, 1992, until the expiration of his annual contract. Reinstate Charlie C. Davis to his position as head custodian at Carter- Parramore Middle School and renew his annual contract for that position for the entire 1992-1993 school year. Award to Davis back pay for the period covered by the annual contract for 1992-1993 during which has not been working or being paid. Deny the request for Davis' attorney's fees and costs necessitated for his defense against the suspension and termination on March 25, 1992. DONE and ENTERED this 23rd day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2375 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Gadsden County School Board 1. Proposed findings of fact 1-7, 10-14, 16, 17, 19, 21, 22, 24, 25, 27, 29-35, and 38-41 are subordinate to the facts actually found in this Recommended Order. 2. Proposed findings of fact 18, 20, 26 and 37 are irrelevant to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Charlie C. Davis Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5. Proposed findings of fact 6-18 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 9, 15, 23, 28, and 36 are unsupported by the credible, competent and substantive evidence. COPIES FURNISHED: Robert H. Bryant, Superintendent Gadsden County School Board Post Office Box 818 Quincy, FL 32351 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400 Deborah J. Stephens Attorney at Law The Ausley Law Firm 227 South Calhoun Street Tallahassee, FL 32302 David Brooks Kundin Attorney at Law Dobson & Kundin, P.A. Post Office Box 430 Tallahassee, FL 32302
The Issue Did the actions of Respondent, Joy Thompson (Ms. Thompson), during an altercation with student V.G.1 on April 13, 2010, violate Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13-5D-1.07 of the Miami-Dade County School Board (School Board)? If Ms. Thompson's actions violated the School Board's Rules, do the violations constitute just cause for termination or other disciplinary action?
Findings Of Fact The School Board is the constitutional entity charged with the duty to operate, control, and supervise the Miami-Dade County Public School System. Ms. Thompson has worked for the School Board for ten years. Throughout her employment she has worked at Ruth Owens Kruse School (Kruse) as a full-time School Security Monitor. This is a separate day school serving students with emotional and behavioral disabilities. Ms. Thompson has been a satisfactory employee for the ten years of her employment, except for the incident involved in this proceeding. She has received only one verbal warning. Under School Board rules, the warning is not formal discipline. The incident resulting in the warning did not generate a finding of probable cause to believe that Ms. Thompson had violated School Board rules. The School Board and her principals have never disciplined her. The basic objectives of Ms. Thompson's position include monitoring student activity "in promoting and maintaining a safe learning environment" and ensuring that appropriate standards of conduct are followed. Her job tasks and responsibilities include reporting serious disturbances and resolving minor altercations. The collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (Collective Bargaining Agreement), Florida Statutes, State Board of Education rules published in the Florida Administrative Code, and the policies and procedures of the School Board govern Ms. Thompson and establish the terms and conditions of her employment. Ms. Thompson is an "educational support employee," as defined by section 1012.40(1)(a), Florida Statutes (2010)2 and is governed by the Collective Bargaining Agreement. The Collective Bargaining Agreement requires "just cause" for the discipline of support personnel. The Collective Bargaining Agreement provides that: Just cause 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 turpitude. Such charges are defined, as applicable, in State Board [of Education] Rule 6B-4.009. Rule 6B-4.009 of the State Board of Education defines incompetency, immorality, and gross insubordination. It defines willful neglect of duty continuing or constant intentional refusal to obey reasonable orders. The rule defines misconduct in office as violations of Florida Administrative Code Rules 6B- 1.001 and 6B-1.006 "so serious as to impair the individual's effectiveness in the school system." The Collective Bargaining Agreement affirms that the School Board and the Superintendent of Schools have exclusive management authority of the total school system. They have the exclusive right to suspend or terminate employees. The Collective Bargaining Agreement recognizes that "special education students" may experience impaired impulse control of such severity that the use of physical restraint is necessary. It also states: "The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to 'teach the child a lesson' or as punishment." The School Board provided Ms. Thompson its policies and procedures, including its Code of Ethics and all the rules that she is charged in this proceeding with violating. Ms. Thompson has reviewed those policies. Knowing and abiding by them is a requirement of her job. As a School Security Monitor at Kruse, Ms. Thompson's duties included ensuring that the school environment was safe for the employees and children. All Kruse staff members must be able to work with students having emotional and behavioral disabilities. The staff must be able to de-escalate situations, maintain order, maintain discipline, and serve as role models for the students. If attacked, employees may defend themselves. The School Board has provided Ms. Thompson initial training and refresher training in "Safe Crisis Management." The School Board has also provided Ms. Thompson training in appropriate physical restraint techniques. Twelve clinicians work full-time at Kruse with students. They are clinical psychologists, clinical social workers, or art therapists. Each student has a clinician case manager. Kruse protocols require employees to call a clinician for assistance with behavioral problems the employee cannot manage. Room 22 at Kruse is the designated "Calm Room." It is for students who are agitated, serving detention, or serving "timeout" in the least restrictive area outside the classroom. The adjoining room, with a connecting door, is designated as the "Timeout Room or Back Room," divided into two areas. The "Timeout Room or Back Room" is a state-approved, specifically designed, and padded room for use by students at extreme behavioral levels. On April 13, 2010, Ms. Thompson's security post was down the hall from Room 22. V.G., an 18-year-old tenth grade Kruse student, was in the "Calm Room" serving a one day detention because she had skipped school the day before. Other students, including V.G.'s friend L.D., were in the room. The morning of April 13, 2010, Ms. Thompson had escorted V.G. to the "Calm Room." Around noon, Ms. Thompson passed the open door of the "Calm Room." Mr. Villarreal, the teacher in the "Calm Room," asked Ms. Thompson to stay in the "Calm Room" while he stepped out for a few minutes. Ms. Thompson agreed and took a seat at a desk at the back of the room. V.G. was sitting near the front of the room. She was talking and misbehaving. She was not doing her work. V.G. was talking loudly to her friend L.D. across the room and to other students. There were three other School Security Guards in the room at the time. Ms. Thompson directed V.G. to turn around and be quiet. V.G. ignored her and continued talking across the room to L.D. She talked back to Ms. Thompson repeatedly and was verbally abusive. V.G. said, "Bitch, I am not doing it." V.G. continued to talk and be insulting and combative. Ms. Thompson continued to tell V.G. to be quiet and turn around. But as Ms. Thompson grew upset, she told V.G. that she had a "fat ass." Ms. Thompson also told V.G. "that's why your boyfriend doesn't love you and that's why; you're fat." The argument continued and escalated with V.G. and Ms. Thompson insulting each other. Each called the other a "fat bitch" and other names several times. Ms. Thompson grew increasingly upset and walked up to V.G. saying that she was taking V.G. to the "Back Room." Another School Security Guard, Mr. Rojas joined Ms. Thompson to escort V.G. to the "Back Room." At any time, Ms. Thompson could have disengaged from her argument with V.G. and let Mr. Rojas and the other School Security Guards in the room handle the problems V.G. was creating. She also could have called a clinician for assistance. She did neither. Ms. Thompson did not disengage. She continued yelling and arguing with V.G. and followed Mr. Rojas and V.G. into the "Back Room." She was upset by the insults and because students were seeing V.G. be disrespectful to her. Ms. Thompson did not need to follow V.G. and Mr. Rojas into the "Back Room." In her anger, Ms. Thompson pushed past Mr. Rojas and punched at V.G. She grabbed V.G.'s hair, and V.G. grabbed hers. They fought until the other School Security Guards separated them. In the struggle, Ms. Thompson scratched V.G.'s face and neck, leaving light marks. She also bruised V.G.'s arms. Ms. Thompson left the area. As she left, Ms. Thompson grabbed V.G.'s purse and threw it in the trash. Leaving the area of the "Calm Room," Ms. Thompson passed school psychologist Ana San Roman. Ms. Thompson was disheveled and visibly agitated. As the two passed each other, Ms. Thompson said to Ms. San Roman: "I finally got that bitch." Her exclamation demonstrated that the altercation involved personal feelings about V.G. not just the professional issues presented by the events of the day. Ms. Thompson's altercation with V.G. was not part of an effort to prevent injury to person or damage to property. It was the result of Ms. Thompson's frustration and anger and Ms. Thompson's desire to demonstrate to V.G. that she could not show Ms. Thompson disrespect. After the incident, Ms. Thompson completed a required form called a Student Case Management Referral. In the form Ms. Thompson stated that she attempted to perform an approved restraint on V.G. But, at the hearing, Ms. Thompson testified that V.G. attacked her. She did not claim to have attempted to perform an approved restraint. V.G.'s account of the fight on the day it occurred and at hearing are consistent, albeit more colorful in testimony. The inconsistency of Ms. Thompson's testimony with her report on April 13, the greater consistency of V.G.'s testimony with her report, and the testimony of Ms. San Roman are significant factors resulting in determining that Ms. Thompson's account is not as credible as V.G.'s. The "Do's and Dont's [sic]" list for interventions with students at Kruse identifies the following behaviors that escalate difficulties with students as "don'ts": raising voice, yelling, having the last word, using "put downs," and using physical force. In the course of her altercation with V.G., Ms. Thompson engaged in every one of the behaviors. After investigating the incident, the office of the Miami-Dade County Public Schools Superintendent advised Ms. Thompson, by letter dated October 5, 2010, that it intended to recommend her suspension and termination to the School Board for violation of Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07 of the Miami-Dade County School Board. At its October 13, 2010, meeting the School Board suspended Ms. Thompson without pay and began dismissal proceedings against her for violation of the rules. The School Board's October 15, 2010, letter advising Ms. Thompson of the decision stated that it was "for just cause, including, but not limited to" violation of School Board Rules 6GX13-4A-1.21, 6GX13-4A-1.213, and 6GX13- 5D-1.07. School Board Rule 6Gx13-4A-1.21 provides in relevant part: 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 workplace is expressly prohibited. School Board Rule 6Gx13-5D-1.07 provides in relevant part: The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending upon the severity of the misconduct. School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in part: As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education Rule 6B-1.001): * * * The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, state and national laws, codes and regulations. To support the principles of due process to protect the civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his or her actions. To avoid conflict of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the delivery of job duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final Order finding that there is just cause to terminate Ms. Thompson's employment. DONE AND ENTERED this 29th day of April, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of April, 2010.
