The Issue As stipulated by the parties, the issue in this case is whether there is “just cause” to terminate the employment of Patricia Davis.
Findings Of Fact The School Board employs Ms. Davis as a bus paraprofessional. Ms. Davis has satisfactorily served the School Board as a bus paraprofessional for approximately ten years, without any significant discipline. Ms. Davis is a continuing status employee. Ms. Davis is covered by the CTA-CU bargaining unit Collective Bargaining Agreement (CBA). During the 2009-2010 school year, until February 8, 2010, Ms. Davis was assigned to regularly work on bus number 2407. Ms. Marvel Ann Figueroa was the driver regularly assigned to bus number 2407. During the 2009-2010 school year, Ms. Davis was assigned to supervise Exceptional Student Education (ESE) students during transport to and from school on bus number 2407. During the 2009-2010 school year, until February 8, 2010, C.P.2/ was regularly transported on bus number 2407, to and from Palm Pointe Educational Research School (Palm Pointe). C.P. is a student with autism. During the 2009-2010 school year, until February 8, 2010, C.P. was under Ms. Davis’ supervision during transport on bus number 2407. Ms. Davis was aware that C.P. was non-verbal. Ms. Davis recognized that student C.P. was an ESE student with autism. Ms. Davis knew that C.P. was required to use a safety harness/E-Z vest during transport. As required by School Board rules, C.P.’s Emergency Information ESE Bus Form was provided to the staff on bus number 2407, and located on the bus on February 8, 2010. The form provided minimal information. It provided family information and contact numbers. A block labeled "Non-verbal" is checked. In a space labeled "Special instructions for Dealing with Student," one word appears: "Autism." In the "Special Bus Equipment" section, "E-Z on Vest" is checked. School officials knew that within the past two years C.P.’s behavior included vigorous head banging. They also knew that within the past two years C.P. had worn a protective helmet. C.P.’s educational plans included techniques developed to manage head banging and other self-injurious behavior. The school did not inform Ms. Davis of the history of head banging or of the risk of the behavior. This information did not appear on the ESE form. The School Board did not provide the bus with a helmet or other protective or cushioning gear. On February 8, 2010, Ms. Davis was working on bus number 2407. On the morning of February 8, 2010, before boarding students, Ms. Davis performed the pre-trip inspection required by her job duties. It included verifying that the seat belts were securely attached to the seats and that all seat belts were in working condition. Ms. Davis was not feeling well that morning. But she chose to work rather than call in sick. This was poor judgment that contributed to the events of the morning. Ms. Davis and the driver, Ms. Figueroa, discussed Ms. Davis’ illness. They agreed that Ms. Figueroa would get off the bus to escort the children to their seats. This service was a responsibility of Ms. Davis, the bus paraprofessional. On the morning of February 8, 2010, Ms. Davis sat at the front of the bus. Her training and instructions said that the aide was to sit at the back of the bus. But the Transportation Director had repeatedly approved seating charts for the bus that showed Ms. Davis sitting at the front. Consequently, the School Board had authorized Ms. Davis to sit in the front. Ms. Davis’ job duties also required her to constantly monitor the students. Although Ms. Davis periodically looked around to check on the students, she did not maintain a constant view of them. Due to her illness, Ms. Davis struggled to stay awake. Her head nodded and her eyes periodically closed momentarily. Ms. Davis was fighting sleep. She never fell completely asleep. But she did not maintain constant observation of the students. C.P. and three other students were riding bus number 2407 on the route to Palm Pointe the morning of February 8, 2010. Ms. Figueroa properly placed C.P. in his E-Z vest and secured him by his harness in the middle seat of his bus seat row. He was not seated beside the window. During the ride to Palm Pointe, C.P. became upset. He began engaging in self-stimulatory behavior, looking out the window, shaking his hands, and rocking back and forward in his seat. The self-stimulatory behavior was intermittent. This behavior, while often and typically exhibited by autistic children, was more vigorous behavior than C.P. had previously exhibited while riding the bus. As the drive to Palm Pointe continued, C.P. began to hit his hands and then his head against the side of the bus and the bus window. He rocked back and forward in his seat. He leaned and rocked from side to side as he banged his head on the bus window. This behavior continued for about eight minutes. Before that day, C.P. had never exhibited those behaviors while riding the bus. On February 8, 2010, C.P. had been riding bus number 2407, since the beginning of the school year, about six months earlier. Ms. Davis and the bus driver noticed the behavior quickly. They were very concerned about C.P.'s behavior and safety, as well as the safety of the other children on the bus. The bus driver could not pull over, because of the traffic conditions and restrictions resulting from the roads on which she was driving. Ms. Davis did not move C.P. farther away from the window. Unfastening C.P. from his harness and attempting to move him would have been dangerous for him and for the others on the bus. Ms. Davis and Ms. Figueroa were panicked and frightened. They discussed what steps they could take. They were hesitant to physically approach C.P. because they remembered being told in training that physical efforts to control a child with autism would likely cause them to become more violent. Ms. Davis’ training required her to seek help from a manager if she did not know how to handle a situation. Throughout the bus ride on February 8, 2010, as the situation worsened, Ms. Davis never used the available cell phone to seek assistance from a manager. Near the end of the ride, C.P.’s head banging broke the window and cut C.P. He began bleeding, but not profusely. Ms. Davis got the phone number of C.P.’s mother from the ESE form and called her. C.P.’s mother asked them to continue to the school and said she would meet them there. Ms. Davis’ call for assistance came too late. Her failure to promptly seek assistance was a neglect of her duties and a failure to exercise sound professional judgment. As the bus pulled in and stopped at the school, C.P. calmed. Ms. Davis approached him and comforted him verbally and physically. Other school employees boarded the bus and escorted C.P. off where his mother met him. The emergency intervention duties of a bus paraprofessional, like Ms. Davis, include providing ESE students physical assistance, if needed, during an emergency. Ms. Davis had seen C.P. mildly agitated before February 8, 2010. But there is no persuasive evidence that his actions included banging his head against the window or anything else, or that he had previously engaged in any self-injurious activities in Ms. Davis' presence. C.P.'s activities when agitated had included rocking, jerking, rubbing his fingers together, and humming. These are all typical self-calming behaviors shown by individuals with autism. They were not unusual for a student with C.P.'s disability. The behaviors were to be expected and would not have triggered concerns sufficient to report the behavior. In the past when C.P. became agitated, Ms. Davis had calmed him by offering cookies and speaking quietly to him. On February 8, 2010, these techniques worked briefly. C.P. paused his head banging, but then resumed. During Ms. Davis’ ten years of employment, the School Board provided her 92 hours of job-related training, an average of 9.2 hours per year. Of that, 20 hours were her initial training. Ms. Davis attended the classes and successfully completed them. The instruction covered a wide range of topics including equipment, procedures for emergencies, such as traffic accidents, school board policies, and employee relations. The training provided by the School Board included initial and refresher training in Crisis Prevention Intervention (CPI). Ms. Davis' most recent CPI training was August, 2007. She successfully completed it. The CPI training is general and addressed a range of situations. It includes training in verbal and non-verbal techniques. The techniques range from soothing and calming to physical restraint. There is no persuasive evidence that any of the CPI or other training specifically addressed the unique problems and dangers presented by a student in need of physical restraint in a moving vehicle. The testimony of School Board witnesses who reviewed the video tape of the incident and the reports highlighted the difficulty of the situation. The School Board witnesses believed that C.P. was sitting in a window seat and said Ms. Davis should have relocated him. Other School Board witnesses, and common sense, more reasonably maintained that trying to relocate a physically agitated student in a moving bus would endanger him and the other passengers. The CPI training did not include techniques specific to the unique issues presented by students with autism. It did not provide information about how to address head banging or suggest techniques such as cushioning the blows’ impact when a person is banging his head against a hard object. Typically, the school’s training involved two days of in-service presentations about general issues, transportation, student and personnel issues, including School Board policy, equipment, safety, and duties of bus drivers and aides. The training in aggregate provided little specific information about students with autism and nothing useful about ways to manage behavior such as that exhibited by C.P. on February 8, 2010. The School Board provided Ms. Davis training in non- violent crisis intervention. It involved techniques for dealing with children who are acting out in an aggressive or violent manner. The training did not emphasize or focus on issues involving behavior of students with autism. It presented techniques as equally applicable and effective for all student populations, including ESE students with autism. The training, however, provided that employees should call their manager for assistance when faced with a problem they cannot handle. Autism presents widely varied types of behavior. The crisis intervention techniques suggest engaging students in conversation and establishing a relationship with them through verbal interaction. This is not particularly useful or instructive in dealing with situations concerning non-verbal children. One of the district's training documents is titled "How well do you KNOW YOUR EQUIPMENT ?????." This training document is a representative sample of the training material that the district relies upon as having prepared Ms. Davis for the student's head banging. The information it provided did not. This is all the document had to say about possible behaviors of children with autism and how to react to them. Child may not be able to voice his/her discomfort, this may be apparent by different types of behavior: Rocking Banging with head or hands Biting Yelling, etc. In retrospect things could be fine, and child may exhibit inappropriate language and behavior. Modification training may be required to minimize their actions and reactions, to a more acceptable behavior. DON'T TAKE IT PERSONALLY The information in other training materials is similarly non-specific and not helpful in the emergency Ms. Davis faced. The CBA states: “[a]ny member of the Classified Unit may be dismissed by the School Board during his/her term of appointment, when a recommendation for dismissal is made by the Superintendent, for “just cause.” The CBA defines “just cause” to include “insubordination; neglect of duty; unsatisfactory work performance; and violation of School Board Policy and/or Rules . . .”. School Board Rule 6.301(3)(b), provides a non-inclusive list of infractions that support disciplinary action. They include: neglect of duty; violation of any rule, policy, or regulation; sleeping during working hours; violation of safety rules; violation of the Code of Ethics of the Education Profession; violation of the Principles of Professional Conduct for the Education Profession; violation of the Standards of Competent and Professional Performance; and violation of the Code of Ethics for Public Officers and employees. The Code of Ethics of the Education Profession in Florida (Florida Administrative Code Rule 6B-1.001), and the Principles of Professional Conduct for the Education Profession in Florida (Florida Administrative Code Rule 6B-1.006) require Ms. Davis to have concern for the students as her primary professional concern; to seek to exercise the best professional judgment and integrity; and to make reasonable efforts to protect students from harmful conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered pursuant to section 435.06, suspending Respondent, Patricia Davis, from employment for a period of one year, starting November 9, 2010. DONE AND ENTERED this 1st day of November, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2011.
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2013.
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether the Respondent committed the violations alleged in the Notice of Specific Charges filed January 10, 2002, and whether the Respondent should be dismissed from her employment.
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 is responsible for operating, controlling, and supervising the free public schools in the Miami-Dade County school district and has the power to suspend and dismiss employees. Article IX, Section 4(b), Florida Constitution; Sections 230.03(2) and 230.23(5)(f), Florida Statutes. Background Ms. Delice was employed by the School Board as a school bus driver trainee in May 1997. She successfully completed her training and was duly placed on permanent status as a bus driver for the Miami-Dade County school system. Ms. Delice is a member of the American Federation of State, County, and Municipal Employees, Local 1184, and she is subject to the Contract Between the Miami-Dade County Public School and the American Federation of State, County, and Municipal Employees, Local 1184, effective from July 1, 2000, through June 30, 2003 ("Union Contract"). In 1998, when Ms. Delice was working at the School Board's Southern Regional Transportation Center, she came to know Rhonda Ferguson, another bus driver working at this facility. Ms. Ferguson began making overtures to Ms. Delice, asking for her phone number and generally acting, in Ms. Delice's estimation, like a co-worker who wanted to become friends. A co-worker who had overheard a conversation between Ms. Delice and Ms. Ferguson told Ms. Delice that Ms. Ferguson was a lesbian. Ms. Delice became very upset, and, even though Ms. Ferguson had never made any physical or overt verbal advances, Ms. Delice concluded that Ms. Ferguson was harassing her and that she was being subjected to working in a "hostile environment." Ms. Delice told Ms. Ferguson to leave her alone, but she did not complain to her supervisors that, in her estimation, Ms. Ferguson was bothering her. Ms. Delice was subsequently transferred to the Southwest Regional Transportation Center ("the Southwest facility"), and, about eight months later, Ms. Ferguson was transferred to the Southwest facility as well. A co-worker told Ms. Delice that Ms. Ferguson was spreading stories about Ms. Delice to the effect that the two women were having an affair. On January 20, 1999, Ms. Delice confronted Ms. Ferguson in the workplace, and the two women became involved in a verbal and physical altercation. After the altercation, Ms. Delice was temporarily transferred to the Central West Regional Transportation Center ("the Central West facility"). An investigation was conducted, and the charges against Ms. Delice and Ms. Ferguson were substantiated. Although a 30-day suspension without pay was the recommended discipline, it was finally decided that Ms. Delice and Ms. Ferguson would be permanently assigned to the location of their alternate assignments. Accordingly, Ms. Delice was permanently transferred to the Central West facility in February 1999. Although Ms. Delice knew she was "somewhat" emotionally affected by the advances of Ms. Ferguson, it was the transfer to the Central West facility that "turned her whole life upside down."1 Ms. Delice was distressed at the condition of the physical plant at the Central West facility, and she described it as a "boot camp." Ms. Delice complained that the road leading into the facility was narrow and very dark, with rocks on one side and a lake on the other; that the location was unsafe; that there were potholes in the gravel lots where the buses were kept; that the gravel lots turned to mud when it rained and were very dusty when it was dry; that the lighting was non-existent; that she was required to park in the employee parking lot and walk a half-block to the office to pick up her bus assignment and another half-block to her bus, often in the mud; that there were mosquitoes and frogs on the buses, and she had to be careful not to sit on a frog; and that something, maybe asbestos, was coming out of the walls of the employee break room. Ms. Delice blames Ms. Ferguson for her transfer to the Central West facility, and she thinks that she should have been disciplined for the altercation in January 1999 rather than transferred to the Central West facility. Finally, Ms. Delice called Barbara Moss, a District Director of the School Board's Office of Professional Standards, and asked if she could be transferred back to the Southwest facility. Ms. Delice told Ms. Moss that she had transportation problems because she drove an old car that was always breaking down because of the bad roads at the Central West facility and that the Southwest facility was closer to Ms. Delice's home than the Central West facility. Ms. Moss secured a transfer for Ms. Delice back to the Southwest facility, effective in March 2000. Ms. Delice did not mention any emotional problems, stress, or poor working conditions to Ms. Moss. Ms. Delice worked at the Southwest facility until she was suspended by the School Board on October 24, 2001, pending initiation of dismissal proceedings. Absences Each year, school bus drivers receive a copy of the Handbook for School Bus Drivers, Aides and Operations Staff ("Handbook"), and Ms. Delice's supervisor at both the Central West facility and the Southwest facility went over the Handbook with employees at the beginning of each school year. Section 9 of the Handbook describes in detail the attendance policy for transportation employees. A bus driver working for the School Board accrues a total of ten days combined paid sick and personal leave each school year. Between December 1, 1999, and June 1, 2000, Ms. Delice took 64 days of unauthorized leave without pay, 11.5 days of authorized leave without pay, and six days of paid sick/personal leave. Between August 28, 2000, and June 13, 2001, Ms. Delice took 26.5 days of unauthorized leave without pay, 21 days of authorized leave without pay, and ten days of paid sick/personal leave. Ms. Delice was absent without authorization on three consecutive workdays on January 17, 18, and 19, 2001; February 1, 2, 5 and 6, 2001; and May 30 and 31 and June 1, 2001. Between August 28, 2001, and October 24, 2001, the date of her suspension, Ms. Delice had three days of unauthorized leave without pay, one day of authorized leave without pay, and seven days of paid sick/personal leave. Between August 28, 2001, and October 10, 2001, the date Ms. Delice was advised that the superintendent was recommending her termination, Ms. Delice took six days of paid sick/personal leave, but no days of either authorized or unauthorized leave without pay. Reminders and Conferences for the Record On October 25, 1999, Michael Exelbert, a coordinator at the Central West facility, issued to Ms. Delice a Notice of Performance Expectation Requirement, Attendance (Follow-Up Verbal), in which Ms. Delice was issued a verbal reminder of her responsibilities with respect to attendance. She was referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On December 8, 1999, Mary Murphy, the Director of the Central West facility, issued to Ms. Delice a Notice of Performance Expectation/Requirement, in which Ms. Delice was again reminded of the expectation regarding attendance, specifically with respect to her being absent without leave after not calling or showing up for work on November 15, 17, and 23, 1999. Ms. Delice was again referred to Article XI, Section 4, page 32, and Article V, Section 27, page 8, of the Union Contract. On February 7, 2000, Mr. Exelbert conducted a Conference for the Record with respect to Ms. Delice's "no call/no show" absences without leave on September 13, 15, 19, and 21, 1999; November 15, 17, and 23, 1999; December 16, 1999; and January 3, 2000. As set forth in the summary of the conference, Ms. Delice explained her absences as follows: "You indicated that you had had car problems, had a problem with the staff in Dispatch, and that every once in a while you needed a day off." As a result of documentation provided by Ms. Delice, September 19 and November 23, 1999, were removed as absences without leave. Ms. Delice was referred to Section 9 of the transportation employee's Handbook for the applicable attendance policy. On June 1, 2000, after her March 2000 transfer to the Southwest facility, a Conference for the Record was conducted by Aned Lamboglia, a coordinator at the Southwest facility, with respect to Ms. Delice's unauthorized absences subsequent to September 1, 1999. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified 53.5 days of unauthorized leave without pay, 11 days of authorized leave without pay, and six days of paid sick/personal leave between September 1, 1999, and June 1, 2000; Ms. Lamboglia also noted that Ms. Delice had missed "at least" 10.5 days of work since she was transferred to the Southwest facility in March 2000. As set forth in the summary of the June 1, 2000, conference, Ms. Delice explained her absences as follows: You stated that some of your unauthorized absences were due to the fact that you had serious transportation problems. You were administratively transferred to Central West Transportation and this had caused a serious hardship for you since the vehicle you drove kept breaking down. You also stated that you were not aware that you could provide documentation for authorization of leave time when you did not have sick or personal time. Ms. Lamboglia advised Ms. Delice during the conference that her attendance record was unsatisfactory, and she reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract. She also advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. On June 1, 2000, Ms. Lamboglia also referred Ms. Delice to the School Board's Employee Assistance Program ("EAP"). Ms. Lamboglia received notification from the clinical coordinator of the EAP, dated July 21, 2000, that Ms. Delice's case had been closed after Ms. Delice failed to attend a scheduled conference and denied that she had any job performance problems. On October 25, 2000, Ms. Lamboglia, then Mrs. Candales, conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to June 1, 2000. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified four and one-half days of unauthorized leave without pay, with two and one-half days of the total occurring during the new school year. According to the summary of the conference, Ms. Delice had nothing to say regarding these absences. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that failure to improve her attendance could lead to further disciplinary action. In light of her June 1, 2000, referral of Ms. Delice to the EAP, Ms. Candales did not make a referral after the October 25, 2000, conference. On April 23, 2001, Mrs. Candales conducted a Conference for the Record with respect to Ms. Delice's unauthorized absences subsequent to October 25, 2001. Ms. Lamboglia reviewed Ms. Delice's attendance record and identified approximately 18 days of unauthorized leave without pay. According to the summary of the conference, Ms. Delice explained her unauthorized absences by stating that she continued to experience car problems. Ms. Delice provided Mrs. Candales with documentation, and Mrs. Candales agreed to authorize four days of the 18 days of leave without pay. Ms. Candales reviewed with Ms. Delice Article XI, Section 4, and Article V, Section 27, of the Union Contract, and she advised Ms. Delice that her absences were excessive under Article XI, Section 4, of the Union Contract and could lead to disciplinary action such as termination or non-reappointment. In addition, Ms. Candales referred Ms. Delice to the EAP on April 23, 2001. On June 8, 2001, Ms. Murphy, who had transferred from the Central West facility and was Director of the Southwest facility, conducted a Conference for the Record with respect to Ms. Delice's job performance in the area of attendance. Ms. Murphy noted that Ms. Delice had accumulated 25.5 days of unauthorized leave without pay since the beginning of the school year. According to the summary of the conference, Ms. Delice gave the following explanation: You mentioned during the conference that sometimes your car breaks down and you cannot make it to work. Also, if you are not feeling well you do not come to work. You are currently participating with the District Support Agency, and you are waiting for Mr. Portier to send you to a psychiatrist. You stated that you requested to see a psychiatrist because of the conditions at Central West Transportation. According to you, you began to have attendance problems when you were transferred to "Boot Camp": A.K.A., Central West Transportation. Being at this location caused you to have emotional stress. Prior to going to Central West Transportation, you did not have an attendance problem. You explained that during 1997 through 1999, you did not have an attendance problem. . . . You also mentioned that Mr. Portier's services did not meet your problem because your problems were financial. Ms. Murphy reviewed with Ms. Delice Article XI, Section 4(B) of the Union Contract, which provides that unauthorized absences for three consecutive workdays or for ten days during the previous 12-month period were grounds for termination. Ms. Delice was advised that a copy of the summary of the conference would be sent to the Administrative Director, Jerry Klein, and to the Office of Professional Standards for review and possible disciplinary action. In a memorandum dated June 20, 2001, Mr. Klein recommended to Ms. Moss at the Office of Professional Standards that Ms. Delice be dismissed from her employment with the School Board because she had "accumulated 25.5 days of unauthorized leave without pay." On July 23, 2001, Ms. Moss conducted a Conference for the Record with respect to Ms. Delice's "excessive absenteeism; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-4E-1.01, Absences and Leaves." Ms. Delice's record was reviewed, and her future employment status with the School Board was discussed. Ms. Moss identified total absences between September 1, 2000, and June 8, 2001, of 54.5 days, consisting of 23 days of unauthorized leave without pay, 21.5 days of authorized leave without pay, six personal, and four sick days. According to the summary of the conference, Ms. Delice explained her unauthorized absences as follows: "'My problem with attendance started when I was sent to the 'boot camp' at Central West Transportation. That center is very depressing and dusty.'" In response to the observation that the purpose of the conference was to discuss Ms. Delice's attendance problem at the Southwest facility, Ms. Delice replied: "'I'm just getting over the conditions I was subjected to at Central West Transportation. I feel that I am not being given a chance to improve.'" Ms. Delice was advised that, once a review of the relevant materials was completed, she would be notified of the recommended disciplinary action. Ms. Moss further advised Ms. Delice that "[a]ll disciplinary action(s) shall be consistent with the concepts and practice of progressive or corrective discipline. The degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record." Ms. Delice was referred through the EAP to Dr. Lynne Schettino, a psychologist. Dr. Schettino initially assessed Ms. Delice on August 17, 2001, and Dr. Schettino saw her in individual sessions on August 28, 2001, and September 11, 2001; Ms. Delice cancelled two additional scheduled appointments with Dr. Schettino and did not reschedule. Ms. Delice identified absenteeism as a major problem, attributing it to "a transfer to another location [that] had been very stressful for her and that this resulted in significant anxiety, depression and avoidant behavior."2 Dr. Schettino determined that Ms. Delice's treatment should focus on coping with work stressors and developing interpersonal skills "to allow appropriate adjustment to the work place,"3 but Dr. Schettino did not have time to reach a diagnosis or develop a treatment plan for Ms. Delice. Ms. Delice entered into a "contract" with Dr. Schettino regarding her attendance, and, although she took six days of sick/personal leave between August 28, 2001, and October 10, 2001, Ms. Delice had no days of authorized or unauthorized leave without pay. In a letter dated October 10, 2001, Ms. Delice was notified by the Superintendent that he was recommending to the School Board that she be suspended from her employment and dismissal proceedings initiated against her for just cause, including but not limited to: excessive absenteeism; abandonment of position; non-performance and deficient performance of job responsibilities; violation of School Board Rules 6Gx13-3E- 1.10, Transportation-Specific Procedures (Attendance Policy); 6Gx13-4A-1.12, Responsibilities and Duties; 6Gx13-4E-1.01, Absences and Leaves." The Superintendent also noted that the dismissal recommendation was taken in accordance with, among other things, Article XI, Section 4(B) and (C), of the Union Contract.
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 finding Elza Delice guilty of abandonment of position and excessive absenteeism, sustaining her suspension effective October 24, 2001, and terminating her employment. DONE AND ENTERED this 30th day of May, 2002, 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 30th day of May, 2002.
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint filed by the Petitioner, Dr. Eric J. Smith, as Commissioner of Education, against the Respondent, Deana Brown, are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent held a Florida Educator's Certificate No. 801038, covering the areas of elementary education, English for speakers of other languages (ESOL), and varying exceptionalities, valid through June 30, 2013. The Respondent was first employed by the Polk County School District (District) as an exceptional student education (ESE) teacher in 1998. She transferred to Spook Hill Elementary School (SHES), a unit of the District, at the beginning of the 2003-2004 school year. At the beginning of the 2005-2006 school year, the Respondent was assigned by SHES Principal Matthew Burkett (Mr. Burkett) to teach in the pre-kindergarten (Pre-K) ESE class. Students in the classroom were three to five years of age and exhibited disabilities ranging from autism to being educable mentally handicapped. This was the Respondent's first experience teaching in the Pre-K ESE classroom. The Respondent's classroom was a portable structure, surrounded by a fence, with a ramp leading from the classroom door into a playground area. There was a restroom in the portable classroom building. The classroom was staffed by the Respondent and a paraprofessional. Mr. Burkett testified that he became concerned with the Respondent's classroom performance based on contacts with parents of students in the classroom. Mr. Burkett identified the concerns as "sleeping, being on the cell phone, those types of things." Mr. Burkett apparently made an effort to observe the Respondent based on such concerns, and his observations resulted in disciplinary actions. On January 19, 2007, Mr. Burkett issued a verbal warning to the Respondent regarding the issue of sleeping in the classroom and confirmed the verbal warning by letter dated January 22, 2007. The letter noted that the Respondent explained that she had been modeling behavior for the children during naptime. The letter advised that the Respondent's sleeping at naptime was not appropriate, that she should not lie down on the floor with her students, and that any issue "that jeopardizes the health and safety of the students will result in further disciplinary action." At 12:45 p.m. on February 2, 2007, Mr. Burkett returned to the Respondent's classroom to talk to the Respondent. He found the classroom dark and quiet, with the students, some of whom were asleep, lying on the floor. The Respondent was not asleep but was lying on the floor. Mr. Burkett reminded the Respondent that she had been directed to refrain from lying on the floor with students, and, on February 8, 2007, he issued a written reprimand to the Respondent for disregarding the directive. On February 9, 2007, Mr. Burkett issued a "letter of concern," wherein he referenced issues discussed during conferences with the Respondent on February 2, 5, and 8, 2007. The letter noted the presence in the classroom of the Respondent's niece, an unapproved volunteer, and stated that the girl was prohibited from being in the classroom until the niece applied for and receive approval to be a volunteer. The letter noted the presence of an adult male in the classroom, an air-conditioning technician employed by the county, with whom the Respondent was planning a class reunion. The letter directed the Respondent to refrain from conducting personal business in the classroom. The letter noted the Respondent's frequent use of a telephone earpiece and her cell phone on personal business during school hours. The letter indicated the Respondent had explained that the calls were to the parents of her students and were school related, that the Respondent had been instructed not to wear the earpiece, and that the Respondent had subsequently been observed using her cell phone and earpiece. The letter directed the Respondent to discontinue having her cell phone "on your person during the school day from 7:30 am to 3:15 pm." The letter noted concern that the Respondent was not "engaged" with her students and that the Respondent had claimed to have been "busy" at times a parent had observed the classroom. The letter directed the Respondent to assign "busy" tasks to her paraprofessional so that the Respondent could remain engaged with her students. The letter noted another discussion regarding napping and advised the Respondent that students were to nap for only one hour, rather than from 12:45 p.m. to 2:00 p.m. The letter noted the Respondent had not been supervising her students during playground time and had stayed inside to clean the classroom. The letter stated that the custodian was responsible for cleaning the room and would do so. The letter noted that various educational items hanging from the classroom ceiling were a violation of the fire code and needed to be removed. The letter noted that the Respondent had chosen to allow parents to drop students off at school prior to 7:15 a.m. The Respondent testified that she did so to accommodate parents whose schedules were difficult. The letter advised the Respondent that students were not to be dropped off at school prior to 7:15 a.m. and that the principal would intervene with parents if necessary. Also on February 9, 2007, Mr. Burkett issued a verbal warning to the Respondent for leaving the school campus during working hours on February 7, 2007, without obtaining prior approval from the school administration. He documented the verbal warning by separate letter dated September 9, 2007, wherein he noted that the SHES assistant principal had been required "to assist with the safety and supervision of your students" during the unapproved absence. The letter noted that the Respondent had explained she left school to take her niece to work. The letter advised that further incidence of leaving the school grounds during working hours without approval would result in further disciplinary action. On March 1, 2007, Mr. Burkett observed the paraprofessional in the playground, sitting on a swing set, holding a child, and yelling at other students who were running on the ramp. Both the portable door and the fence gate were "wide open." Mr. Burkett returned the students to the classroom where he observed other students playing in the teacher's chair while the Respondent talked on her personal cell phone, unaware that Mr. Burkett had entered the room. On March 6, 2007, Mr. Burkett issued a written reprimand for the Respondent's continued use of her personal cell phone during school hours. The Respondent asserted that she was talking to the parent of a student who had called a few seconds prior to Mr. Burkett's entrance into the classroom (despite his directive of February 9, 2007, prohibiting her possession of her personal cell phone on campus during school hours). By letter dated March 14, 2007, the District superintendant issued a letter suspending the Respondent without pay for one day (March 22, 2007) based on the events of March 1, 2007. On March 19, 2007, the Respondent became engaged in an altercation with her niece, who was again on the SHES campus during school hours. During the altercation, the Respondent argued with her niece and slapped her niece on the face. When the niece left the campus, the Respondent got into her personal vehicle and followed her niece. The Respondent failed to follow SHES procedure when she left the campus during school hours. By letter dated April 18, 2007, the District superintendant issued a letter suspending the Respondent without pay for one day (April 25, 2007) based on the events of March 19, 2007. By letter dated May 8, 2007, Mr. Burkett referenced the creation on March 8, 2007, of a Professional Development Plan (PDP) to "address the learning environment" in the Respondent's classroom. Among the performance deficiencies identified in the PDP and noted in the letter was the failure to circulate around the classroom during activities, engaging and interacting with students, rather than sitting at the teacher's desk. Additional deficiencies included a failure to comply with the students' Individual Education Plans (IEPs), posting a daily classroom schedule, and classroom safety issues. On August 31, 2007, the Respondent strapped a misbehaving student into a 24-inch tall high chair and then left the classroom to use a laminating machine and a non-classroom restroom. The paraprofessional remained in the room with the students. The student's IEP did not allow for use of a high chair as a restraining or "time-out" device. Mr. Burkett entered the classroom approximately ten minutes after the Respondent left and observed that both the high chair and the student had fallen over. The student was not injured. The Respondent returned to the classroom about five minutes after Mr. Burkett entered the room and explained where she had been. By letter dated September 10, 2007, the District superintendant issued a letter suspending the Respondent without pay for five days (September 17 through 21, 2007) based on the Respondent's disciplinary history and the events of August 31, 2007. Prior to the suspension period, the dates of suspension were amended to September 20, 21, and 14 through 16, 2007. On January 17, 2008, the Respondent again left the SHES campus prior to the conclusion of her working hours without obtaining approval from school officials. At approximately 2:30 p.m., on that date, a Pre-K student failed to appear at the designated time and location for bus transportation from the school to home. Mr. Burkett attempted to locate the Respondent to resolve concerns about the student's location and determined that the Respondent was not present on campus. After the Respondent was eventually located, she told school officials that she placed the student on a different bus on that date and then left the campus. She had not advised anyone at the school of the alternative transportation arrangements prior to her unapproved departure from campus. After confirming that the child was indeed on the other bus, his regular bus departed late from the school campus. By letter dated January 30, 2008, the District superintendant issued a letter suspending the Respondent without pay for five days (February 6 through 12, 2008) based on the Respondent's disciplinary history and the events of January 17, 2008. On February 21, 2008, an assistant principal at SHES went into the Respondent's classroom for an informal observation. The Respondent was seated at her computer when the assistant principal entered the room. After looking around the room, the assistant principal believed that not all of the Respondent's students were present in the room. The assistant principal took a head count, determined that one child was missing from the classroom, and inquired of the Respondent as to the location of the missing student. The child was subsequently found, unharmed, in the portable classroom bathroom. The Respondent had been unaware of the missing child prior to the assistant principal's observation that the child was not present and had no idea of the child's location. By letter dated March 3, 2008, the District superintendant issued a letter immediately suspending the Respondent with pay and stating that the superintendant would recommend to the Polk County School Board that the Respondent's employment be terminated. The grounds for the proposed termination included the Respondent's "continuing pattern of violating school and district policies" and a "pattern of failing to properly supervise students under your care." The Respondent's employment with the District ended after an unsuccessful administrative challenge to the proposed termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order imposing a two-year suspension of the Respondent's teaching certificate followed by a three-year probationary period, including such terms and conditions, including appropriate additional educational requirements, as the Education Practices Commission may choose to impose. DONE AND ENTERED this 14th day of September, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 14th day of September, 2011.
The Issue The central issue in case no. 88-2368 is whether Respondent should be suspended for thirty workdays due to misconduct in office. The central issue in case no. 88-3315 is whether Respondent should be dismissed from employment due to misconduct in office, gross insubordination, and incompetency.
Findings Of Fact COPIES FURNISHED: Marlene Rodriguez 16333 Wood Walk Miami Lakes, Florida 33014 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Recommendation Based on the foregoing, it is RECOMMENDED: With regard to case no. 88-2368, that the School Board of Dade County enter a final order affirming the administrative decision to suspend Respondent for a thirty workday period for misconduct in office. With regard to case no. 88-3315, that the School Board of Dade County enter a final order affirming the administrative decision to dismiss Respondent from employment for misconduct in office, incompetence, and gross insubordination. DONE and RECOMMENDED this 1st day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2368, 88-3315 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the exception of George C. Clark, Mr. Clark's testimony was offered by deposition. Paragraph 2 is accepted. Paragraphs 3-4 are accepted. Paragraph 5 is rejected as a recitation of testimony, not specific facts adduced by such testimony; some of the recitation being without basis. It is found that Respondent did not follow school policies regarding the discipline administered to students, that Respondent was aware of the correct procedures, and that Respondent continuously had trouble regarding classroom management. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted but is unnecessary to the conclusions reached in this cause. Paragraph 10 is accepted not for the truth of the matters asserted therein but as a indication of the student-teacher relationship between Respondent and one of the students she taught. Paragraphs 11, 12, and 13 are accepted. Paragraph 14 is accepted not for the truth of the matters asserted therein but see p.9 above. Paragraph 15 is accepted. Paragraph 16 is accepted not for the truth of the matters asserted therein but see p.9 above as it relates to the hearsay contents of the letter. Other portions of the paragraph which conclude respondent knew discipline procedures but did not follow them, or knew notice policies but did not follow them are accepted. Paragraphs 17 and 18 are accepted. Paragraphs 19,20,21, and 22 are accepted only to the extent addressed in findings of fact, paragraphs 7,8,9, and 10; otherwise, the proposed findings are rejected as contrary to the weight of the evidence or unsupported by admissible evidence. Paragraphs 23, 24, and 25 are accepted. With regard to paragraph 26, the first two sentences are accepted, the balance is rejected as hearsay or unsupported by the record in this cause. Paragraphs 27, 29, and 30 are accepted. (Petitioner did not submit a paragraph 28) In the future, proposed findings submitted which do not conform to the rules of the Florida Administrative Code will be summarily rejected. Petitioner is cautioned to review applicable rules, and to cite appropriately. RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the clarification that Clark's testimony was offered by deposition. Paragraph 2 is accepted. With regard to paragraph 3, according to the evidence in this case, Repodent taught at Miami Gardens Elementary School (Leon was her principal there) and North Carol City Elementary School (Sawyer and Brown were her principals there). Other schools may have been assigned during her periods of "special assignment" but the record is insufficient to establish Respondent's performance while on such assignments. The record is insufficient to make the legal conclusion addressed in paragraph 4, consequently, it is rejected. The Board addressed a recommendation to terminate Respondent's employment; however, the record does not establish final action was taken. The facts alleged in paragraph 5 are too voluminous to address in one paragraph. Petitioner's continued use of a recitation of the testimony does not constitute findings of fact. Pertinent to this case are the following facts adduced from Petitioner's paragraph 5: that Respondent's overall performance was unacceptable, that Respondent failed to direct students who were off task, that Respondent made an excessive number of referrals for discipline, and that the atmosphere in Respondent's class was not conducive to learning. With the exception of the last sentence in paragraph 6, it is accepted. The last sentence is rejected as contrary to the weight of the evidence. See finding made regarding paragraph 5, case no. 88-2368. Paragraph 8 is rejected as contrary to the specific evidence presented. Paragraph 9 is accepted. Paragraphs 10-14 are accepted. Paragraph 15 is rejected with the exception of the last sentence; the time sequence referred to is not specified in the record. The record does establish, however, that Respondent did not make progress in correcting noted areas of deficiency. Paragraphs 16 and 17 are accepted. Petitioner's proposed findings of fact have duplicate numbers for the following paragraphs: 15,16, and 17. The second set of these paragraphs are addressed below. Second paragraph 15 accepted not for the truth of the matters asserted but as an indication of the teacher-student relationship between Respondent and her student. Second paragraph 16 is accepted. Second paragraph 17 is accepted. Paragraph 18 is accepted. Paragraphs 19-22 are accepted.
The Issue The issue in this case is whether just cause exists to terminate Respondent, Donna James’ (“Mrs. James”) employment contract with Petitioner, Duval County School Board (the "School Board"), based on the fact that Mrs. James failed to adequately supervise her students.
Findings Of Fact The School Board is responsible for hiring, firing and overseeing all employees at the School, which is an elementary school within the Duval County Public School system. At all times relevant hereto, Mrs. James was a teacher at the School. At the time of her termination of employment by the School Board, Mrs. James was teaching kindergarten at the School. She had been teaching at the School for approximately 17 years, primarily teaching in first and second grades. Mrs. James was certified in grades one through five. Each year she taught at the School, Mrs. James received satisfactory annual evaluations concerning her performance as a teacher. There were some comments on her evaluation forms in the category of classroom management that indicate some minor problems in that area, but none of the comments suggest Mrs. James was less than satisfactory. For example, “classroom management skills are improving” (2011); “needs to be more consistent with consequences” (2001). Other than those comments, all the evaluations had either no comments or had more positive comments. There was, surprisingly, no evaluation form in Mrs. James’ employee file for the 2011-2012 school year, the year just prior to the year Mrs. James’ employment contract was terminated. Dr. Sutton became principal of the School in 2009. Her initial assessment of Mrs. James was that she was a competent teacher. Dr. Sutton later came to believe that Mrs. James had some “issues” with classroom management. Dr. Sutton’s opinion of Mrs. James appears to be the impetus for the School Board’s action seeking termination of Mrs. James’ employment contract. (When asked upon being sworn in at final hearing what her “occupation” was, Dr. Sutton replied “Principal of [the School].” However, during cross-examination Dr. Sutton said she was not retained as principal at the School for the upcoming school year. The rationale given to her for non-retention was “data trends and other issues.” Dr. Sutton’s credibility was negatively affected by her initial failure to be forthright about her employment status.) According to Dr. Sutton’s sworn testimony, she visited Mrs. James’ classroom regularly, including formal visits at least every two months and informal visits “frequently.” Mrs. James remembers only two formal visits and almost no informal walk-through visits. Mrs. Gillrup, a retired teacher who came to assist Mrs. James two days a week for the entire school year, never remembers seeing Dr. Sutton visit the room. Dr. Sutton, by her own admission, did not have an assistant principal and was thus spread thin concerning her administrative duties. In light of contradictory testimony, and the fact Dr. Sutton did not have an assistant principal to give her more time, Dr. Sutton’s testimony lacks credibility in that regard. There are four separate incidents which form the basis of Dr. Sutton’s decision to pursue termination of Mrs. James’ employment contract. Each will be addressed below. The Stabbing Incident1 On or about December 13, 2010, Mrs. James was teaching a first grade class. On that day, one student stabbed another student with a pencil, resulting in injuries to the second student. The School Board provided no direct evidence as to what transpired in the classroom other than the final result, i.e., one student stabbed another. According to Mrs. James, the event occurred as follows: Two boys were engaged in a fight in her classroom. The aggressor was an Exceptional Student Education (ESE) student with “special needs.” Mrs. James separated the boys, then took one of the students directly to the office in order to keep the boys from fighting. While she was gone –- for approximately five minutes –- the ESE student attacked another student with his pencil, stabbing him in the neck and head. A Department of Children and Families’ investigation was conducted in that case. The case was closed with a “verified for inadequate supervision” designation. No evidence from the original investigation was provided in the instant matter. There is no evidence that Mrs. James was disciplined because of that incident. The Playground Incident On March 3, 2012, Mrs. James received a verbal reprimand for failing to supervise two students on the playground. No evidence concerning the specific facts of the situation was presented by the School Board. There is no evidence as to how Dr. Sutton even found out about the alleged incident. Rather, the School Board simply alleges that Mrs. James failed to supervise two students properly, resulting in the reprimand. Mrs. James explained the event as follows: On the day in question, her class was on the playground along with students and teachers from several other classes. When it was time for her class to go, Mrs. James blew her whistle twice, summoning the students to line up. When the students gathered, Mrs. James went outside the playground area to line up and conduct her student check. At that time, she found that one student (not two, as alleged) was missing. She was still in visual contact with the playground where other teachers and their classes were still located, so she sent two of her more responsible students back to find the missing student. She then proceeded further along the sidewalk in the direction of her classroom, never losing visual sight of the playground. When the two scouts returned with their wayward fellow student, Mrs. James took them and the rest of the class back to the classroom. At no time was the “lost” student ever without adult supervision. Other teachers were in the playground area with their classes. Mrs. James could see the playground at all times. There was no failure to supervise her students. Mrs. James’ explanation of the incident was considered by Dr. Sutton to be placing blame on the students rather than accepting her own culpability. Mrs. James said there was no “blame”; rather, a child simply did not hear the whistle and had to be retrieved from the playground. The Extended Day Student Incident On November 14, 2012, one of Mrs. James’ kindergarten students ended up on board a school bus after school even though the student was not a bus rider. Again, the School Board provided no evidence as to how this mistake happened, only the final result, i.e., the child was improperly on the bus. When the bus driver realized the fact, he returned the child to school. Dr. Sutton then went to speak with the child’s parent, who was naturally concerned about the incident. Mrs. James explained the situation as follows: The boy was the only child in her classroom who was on “extended day,” meaning that once all the other students left school, he would remain with a group of students for further instruction and supervision. Mrs. James’ routine at the end of the day was to line her students up at her classroom door. The extended day student would be released from the classroom first. He would go into a general purpose area right outside the classroom. The child was directed to a carpeted area where he would sit with other kindergarten or first grade extended day students. These students were under the supervision of one or two other teachers. Once that child was safely seated on a carpet, Mrs. James would tend to her other students. Her bus rider students were sent down to Ms. Solomon’s room, which was separated from Mrs. James’ room by an unused classroom. Ms. Solomon would, in turn, send her car rider students down to Mrs. James’ room. It was Mrs. James’ duty to then get the car rider students to the appropriate area for pick-up. Mrs. James’ extended day student and bus rider students thus went under the supervision of someone else. On the day in question, Mrs. James sent her extended day student out to the common area as per usual. Once he was seated on the carpet, she sent her bus riders down to Ms. Solomon’s class and gathered Ms. Solomon’s car riders. Mrs. James took the car rider students to the student pick-up area. Upon arrival in that area, her students were turned over to other teachers assigned to assist them. Likewise, there were teachers assisting the bus riders, making sure the right students got on the right bus. Teachers assigned to each area were generally familiar with the students and would likely know if a student was not in the appropriate area. Despite the various safeguards in place, on November 12, 2012, the extended day student from Mrs. James’ classroom ended up getting on a bus. How he was able to slip away from the extended day area, avoid detection by the various teachers stationed at the bus area, and get on a bus is not clear. Ms. Solomon said the dismissal time was quite confusing and somewhat chaotic, so if a child did get to the wrong place, it was somewhat understandable. That is why there are other safeguards in place. Dr. Sutton assumed that since the extended day student was from Mrs. James’ classroom, she must be responsible for him getting on the bus. Dr. Sutton issued a written reprimand to Mrs. James for her failure to properly supervise the extended day student. Mrs. James does not agree that she breached her duty in any fashion. Rather, the child somehow managed to evade each and every safeguard in place, ending up on a bus he was not supposed to be riding. The School Board alleged in its letter of termination that another of Mrs. James’ students had improperly gotten on a bus earlier in the school year. Dr. Sutton testified that she spoke to Mrs. James about the incident, giving her a verbal reprimand. Mrs. James has no recollection of ever being advised of such a situation. Based upon Mrs. James’ demeanor and the fact there is no written memorialization of such an event ever occurring, Mrs. James’ version of the story is more credible. It is possible Dr. Sutton was mistaken or confused the event with another teacher’s student. It is also possible that, as Mrs. James believes, Dr. Sutton fabricated the first incident. There is no evidence to either support or disprove that contention. Mrs. James was never interviewed or asked about the extended day student bus incident before the reprimand was issued. She was not asked to explain or provide her perspective of what had happened. Nonetheless, the School issued a written reprimand to Mrs. James as a result of the incident. At that time, Mrs. James did not realize she had the right to submit a written response to the allegation, so she did not do so.2 When Mrs. James was summoned to the School to receive her written reprimand, her husband accompanied her for moral support. Mr. James is also an educator, working at another school within the Duval County school system.3 As they sat in an outer office waiting to be called in to receive the reprimand, Mrs. Walker, a school district employee, called Mr. James (only) into the office. At that time, he was given what he described as a “No Trespass Affidavit” which said that he could not be present on the School campus. He had no idea why he would be prohibited from being on the campus where his wife taught school. He knew of no offense he had committed to warrant such a prohibition. This procedure reeks of impropriety, especially when considering the School’s failure to even ask Mrs. James her perspective of what had transpired in the incident for which the reprimand was being issued. The Sexual Contact Incident On March 1, 2013, the last and arguably most serious alleged situation involving Mrs. James occurred. On that date, it was reported that two students in Mrs. James’ class were engaged in a sexual act or in sexual touching of some kind. At about 10:20 a.m., on that day, Mrs. James was approached by one or more of her students reporting that two of the boys in the class, T.S. and M.M., were doing naughty things under the table where they were sitting. According to the report, M.M. approached T.S. and asked him if M.M. could put his mouth on T.S.’s penis like he had seen someone do on television. T.S. initially rejected the offer, but M.M. persisted. Then T.S. zipped down his pants as M.M. climbed under the table. M.M. then either touched T.S.’s penis or put his mouth on it. When Mrs. James was advised of this, she called M.M. and T.S. to her desk and admonished them for their behavior. Neither boy admitted to any sexual act, only saying that T.S. showed M.M. his penis upon request and M.M. touched it. She then had the boys taken to the front office by Ms. Cox, a paraprofessional who generally worked with another teacher. (There was no evidence provided as to why Ms. Cox was in Mrs. James’ room at that time, how long she had been there, or what she saw vis-à-vis the incident.) Mrs. James asked Ms. Cox to bring back two Referral Forms so she could write up the incident. Later, Ms. Harb, an instructional coach at the School who sometimes acted as de facto assistant principal, brought the forms to Mrs. James. Ms. Harb seemed fairly agitated when she arrived with the forms and tried to ascertain what had actually happened. She watched Mrs. James complete the forms, even suggesting Mrs. James add the statement, “according to another student” at the end of her statement. As it turns out, Ms. Harb had talked to the two boys involved in the incident while they were in the office. She also spoke to some other students and obtained general statements from them about what had occurred. Due to the nature of the incident, DCF was again called in to investigate the matter. They purportedly concluded that there was evidence to support a “verified for inadequate supervision” designation for the investigation. (This was the same conclusion reached by DCF in the stabbing incident from 2010 which had not resulted in any disciplinary action against Mrs. James.) The School alleges that another sexual touching incident, probably involving the same students, happened the prior week, on February 26, 2013. However, Mrs. James was not at the School on that day, having attended a math workshop she had been going to every Tuesday for some time. There was no evidence at final hearing as to what action was taken against the substitute teacher relating to that alleged incident. There was also evidence that another sexual incident (again involving one or more of the same children) may have occurred a week or so later, i.e., after Mrs. James had been removed from the classroom. No evidence was presented to indicate whether the teacher in charge at the time of that incident was similarly disciplined. The School Board Decision The day after the sexual touching incident, Mrs. James was notified that she was being removed from the classroom pending further action on the investigation. Three weeks later she received notice that her employment contract was being terminated. The stated basis of the School Board’s decision was that Mrs. James failed to properly supervise her students. The position stated by the School Board (through its human resources representative) was that the sexual conduct incident was the primary reason for recommending termination of Mrs. James employment contract. The egregious nature of that incident, coupled with a “pattern of failure to supervise students properly," constituted a “severe act of misconduct.” The School Board, therefore, felt it expedient to skip the progressive discipline step of suspension without pay and go directly to the most serious penalty: Termination of Employment. The Four-Step Discipline Process The notice of termination Mrs. James was issued is the Step IV discipline found in a four step process. Step I generally involves a verbal reprimand. A Step II discipline is a written reprimand; Step III is suspension without pay. Under the School Board policies and the collective bargaining agreement, the steps are progressive and each must be preceded by the former step. In this case, Mrs. James’ Step I discipline was a verbal reprimand for failing to adequately supervise “two first grade students on the playground.” This was the March 13, 2012, incident. The Step II discipline (written reprimand) was issued concerning the child who improperly boarded a bus on November 14, 2012. There was no Step III discipline imposed on Mrs. James prior to issuance of the Step IV termination letter. The only caveat to the progressive discipline process is that “some more severe acts of misconduct may warrant circumventing the established procedure.” Art. V, Collective Bargaining Agreement. According to the School’s human resources director, this caveat was invoked in Mrs. James’ case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, dismissing all charges and rescinding the termination of the employment contract of Donna James for the reasons set forth above. DONE AND ENTERED this 23rd day of July, 2013, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2013.
The Issue Should Respondent's five-day suspension without pay in December 1996, for her neglect of school policy and procedure be upheld? Case No. 97-1873 Should Respondent's five-day suspension without pay in February 1997, for insubordination in failing to complete student assessments be upheld? Should Respondent's employment with the School Board of Polk County, Florida, be terminated for insubordination in failing to complete required student assessments?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency responsible for providing public primary, secondary, and adult education in Polk County, Florida. To facilitate that responsibility, the Board hires certified teachers for classroom and administrative activities. Respondent Berger is a teacher, certified by the State of Florida. Berger has been a teacher for 34 years, the last 32 years in Polk County. Berger has taught Exceptional Student Education (ESE) since approximately 1980, Most recently, Berger has been working as an ESE teacher in Polk City Elementary School. During the 1995-96 school year, Randall Borland's first year as principal of Polk City Elementary School, he observed significant discipline problems in Berger's classroom. However, Borland recognized that some of the students were behavior problems, and during the school year Borland worked with Berger on the discipline problem, even to the point of removing students from Berger's classroom. Borland continued to observe problems in Berger's classroom at the beginning of the 1996-97 school year. In response, Borland began working with Berger to assist her management system in the classroom. Borland also observed that appropriate materials were not being used for the students at various levels. In September 1996, Borland met with Berger to discuss the Professional Development Plan (PDP) which he had prepared for Berger to assist her in the improvement of the management of student conduct and the monitoring of student progress. Under the goal of monitoring student progress, Berger was to: Assess students in math, reading, and writing during the first few weeks of school. Use assessment results in prescribing appropriate instruction and materials. Continue to utilize ongoing assessment to monitor student progress. Utilize meaningful and appropriate materials during instructional practices. Ongoing assessments of each student is a requirement of all teachers at Polk City Elementary School. These assessments were to be completed at the beginning of the school year and every nine-week grading period. All teachers are regularly given notice that these assessments are to be reviewed for each grading period. On September 12, 1996, Borland did a classroom observation of Berger's class and reported that she appeared unprepared and unfamiliar with the materials. Borland also made recommendations to assist her in these areas. Individual Education Plans (IEP) are required by State regulation for all ESE students, and the failure to timely prepare IEP's could affect the funding for those students. On September 27, 1996, Berger and another teacher at Polk City Elementary School received verbal reprimands for failing to have IEP's for all of their students. Following the verbal reprimand, Borland met with Berger to discuss her failure to successfully complete her PDP. At this meeting, Borland advised Berger that he intended to request the implementation of a Notice of Evaluation of Assistance in Time (NEAT) procedure. The NEAT procedure is designed to address and improve a teacher's deficiencies. Subsequently, Berger requested the Board to replace her Continuing Contract with a Professional Service Contract under Section 231.36(3)(d), Florida Statutes, and further requested that the process be expedited. The Board acted favorably on Berger's request on October 22, 1996. The effect of the change in contracts was to delay the NEAT procedure. Under the Professional Service Contract Berger would have one year to correct the deficiencies, whereas this benefit was not available under her Continuing Contract. By letter dated October 18, 1996, ESE Supervisor Jonda L. Dement advised Borland that the IEP's for a number of students were out of compliance. It is the responsibility of the ESE teacher to have the IEP's in compliance. Some of the IEP's for Berger's students were not in compliance. Berger received a reprimand for failure to have all of her student's IEP's in compliance. On November 4, 1996, the date set for teachers at Polk City Elementary School to review their assessment results with administrators, Borland met with Berger, and it was evident that her student assessments were not complete. Berger gave no explanation why the student assessment were not completed. Berger's failure to have her assessments complete resulted in her receiving a written reprimand. Additionally, Borland reviewed the importance and significance of the assessment results with Berger. To assist Berger, Borland requested that ESE Supervisor Jonda Dement meet with Berger to review available assessment tools. Dement met with Berger on December 2, 1996. However, other than the assistance offered Berger by Dement as set forth in Finding of Fact 26, the record is not clear as to what assessment tools Dement offered Berger at this meeting. On December 2, 1996, Assistant Principal Toni Bartley observed three students outside of Berger's classroom who remained unattended for some period of time. Bartley entered the back door of Berger's classroom to inquire about the students. Berger informed Bartley that she was giving a test (part of the student assessment) to a student which had to be administered individually to the student without other students present. Therefore, the other students had to remain outside. Upon leaving the classroom by the door where the students were located, Bartley discovered that the door was locked. Berger did not realize the door was locked. However, she admitted that she was not able to always observe the children that were outside the classroom. Subsequently, Borland and Bartley met with Berger concerning this incident. At this meeting, Berger was advised that leaving students unattended was unacceptable and that school policy required that students be supervised at all times. As a result of this incident and because of prior verbal and written reprimands, Borland recommended to the Superintendent that Berger be suspended without pay. By letter dated December 10, 1996, the Superintendent suspended Berger without pay for five days. This five-day suspension is the subject matter of Case No. 97-0384. Although the student assessments were due January 8, 1997, Berger was granted an extension until January 13, 1997. By memorandum dated December 12, 1996, Berger was advised that the ongoing assessments of her students were due January 13, 1997, and that a meeting would be held at 2:30 p.m. that day to review those assessments. However, Berger was granted an extension until January 15, 1997, to complete the assessments. At the January 15, 1997, meeting, it was clear that Berger's student assessments were not completed. As a result of Berger's failure to complete the student assessments, Borland recommended to the Superintendent that Berger be suspended five days without pay for insubordination. By letter dated February 18, 1997, the Superintendent advised Berger that he was suspending her without pay for five days based on insubordination in failing to complete student assessments as required by school policy and procedures. This five-day suspension is the subject matter of Case No. 97-1873. Review of student assessments for all teachers was scheduled for the week of March 10, 1997. Berger's appointment to review her student assessments was scheduled for March 14, 1997. Assistant Principal Bartley reviewed Berger's student files, and determined that numerous student assessments were missing for which there was no explanation by Berger. It is clear that Berger had failed to complete her student assessments at this time. As a result of Berger's repeated and ongoing failure to follow Borland's direction to complete student assessments, Borland recommended to the Superintendent that Berger's employment be terminated due to insubordination in failing to complete student assessments as required by school policy and procedure. By letter dated March 19, 1997, the Superintendent advised Berger that he was suspending her with pay effective March 21, 1997, and would recommend to the Board that her employment be terminated based upon continued insubordination in failing to complete student assessments. By letter dated April 1, 1997, the Superintendent advised Berger that the Board had adopted his recommendation to suspend her without pay effective April 1, 1997, pending the outcome of the administrative hearing. The Board's adoption of the Superintendent's recommendation to terminate Berger's employment with the Board is also the subject matter of Case No. 97-1873. Basically, prior to the 1996-97 school year, Berger had received good evaluations. Likewise, Berger has not had any serious discipline problems while employed as a teacher with the Board. Berger did not verbally refuse any direct order from Borland, or anyone else with authority, to complete her student assessments. However, although she completed some of the student assessments timely, Berger failed to timely complete all of her student assessments as directed by Borland, and required by school policy and procedure. Since approximately 1980, Berger has been completing county-wide assessments for her ESE students. Other than a small problem in 1992, Berger has successfully completed the county- wide assessments since 1980 without incident. Beginning with the 1996-97 school year, Berger, along with the other ESE teacher, was required to complete school-based student assessments. At the beginning of the school year it was Berger's understanding that the students’ classroom teacher would complete the school-based assessments. After being advised that she would be responsible for completing the school-based assessments for her students in certain areas, Berger began to assemble the necessary materials to conduct the assessments. Although Berger was not given any detailed explanation as to how the assessments were to be conducted, she was offered assistance by Jonda Dement, notwithstanding any testimony by Berger to the contrary. Although Dement testified that her office was not entirely familiar with this particular school-based assessment, she offered to have someone from her office to come and assist Berger in conducting and completing the assessments. Berger did not make a request of Dement for any assistance in conducting and completing her student assessments. Berger was given ample opportunity and time to complete her student assessments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board: (a) In Case No. 97-0384 enter a final order rescinding the Superintendent's five-day suspension and giving Berger a written reprimand; (b) In Case No. 97-1873 that the Board enter a final order sustaining the Superintendent's five-day suspension, but rather than terminating Berger, place her on a probationary status, which would allow her to correct any deficiency that the Board feels is necessary. Additionally, Berger should not be entitled to any back pay since the Board’s suspension. DONE AND ENTERED this 12th day of September, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire LANE, TROHN, CLARKE, BERTRAND, VREELAND & JACOBSEN, P.A. Post Office Box 1578 150 Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire HERDMAN and SAKELLARIDES, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Polk County School 1915 South Floral Avenue Bartow, Florida 33830-0391
