The Issue The issues in this case are whether Respondent violated the Principles of Professional Conduct for the Education Profession, specifically Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and, if so, what disciplinary action should be taken against him pursuant to Section 231.2615(1)(i), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Chavero holds a Florida Educator's Certificate that is currently valid. Chavero was employed as a public school teacher in the Dade County School District at all times pertinent to this proceeding. In the 1999-2000 school year, Chavero taught English and math at Braddock. All of his students were enrolled in an Alternative Education Program known as the STARS Program. The STARS Program is offered as a last resort to students who, because of bad behavior, poor grades, or other problems, need extra assistance and attention to remain in school. If a student in the STARS Program fails to perform satisfactorily, he or she may be expelled. Chavero believed that student misconduct and a general lack of discipline at Braddock (and other schools) were preventing pupils from learning and teachers from teaching. Consistent with his pedagogic philosophy, Chavero aspired to teach his students not only the content of a course but also such social skills as proper behavior, dress, and manners. Braddock's Principal, Dr. Donald Hoecherl, disagreed with Chavero's view that behavior and social skills should be taught in the classroom. Principal Hoecherl told Chavero not to teach his students how to conduct themselves in socially acceptable ways. Apparently, the principal's admonition reflected the administration's sensitivity to the perceived "low self-esteem" of students in the STARS Program. Chavero was expected to be flexible and to refrain from confronting students or "coming on too strong" with them. This type of teaching was completely out of character for Chavero. Predictably, he was not able to abandon the authoritarian style that suited his personality and beliefs. As a result, Chavero developed a reputation as a strict disciplinarian — but "nothing out of the ordinary," in the words of V. D., a former student who testified against him at hearing. Transcript ("T-") 49. Indeed, according to this same student, Chavero's classroom rules were "pretty much the same" as other teachers'. T-49. Students began to complain, however, that Chavero was making too frequent use of a form of punishment called an “exclusion.” An exclusion is a temporary in-school suspension that the teacher may impose when a student is disrupting the class. Upon being excluded, the misbehaving student must leave the classroom and spend the remainder of the period in detention at another location. Assistant Principal Jane Garraux investigated the student complaints and concluded that Chavero’s use of the exclusion was excessive. She also determined that most of Chavero’s students (as many as 70 percent) were failing his classes. By comparison, other teachers in the STARS Program were giving passing grades to between 80 and 95 percent of their students. Following her investigation, the assistant principal initiated an evaluation of Chavero in November 1999 that led to the identification of performance deficiencies in the area of classroom control. He was placed on a 90-day performance probation and, as a result, needed to correct the identified deficiencies within that period or face termination of employment. See Section 231.29(3)(d), Florida Statutes. While on performance probation, Chavero was observed and evaluated several times. In the opinion of his assessors, Chavero’s performance continued to be unsatisfactory. In February 2000, he resigned. 2/ The Commissioner sought to prove that, in the months leading to his resignation, Chavero: (a) refused, on occasion, to answer students’ questions about lessons and assignments; (b) used the exclusion tool excessively, in relation to other teachers in the STARS Program; (c) demanded more from his students in terms of academic performance and classroom decorum than his colleagues were requiring; and (d) became angry and raised his voice in class at times. This is not a proceeding to terminate Chavero’s employment, however, and poor performance does not constitute a basis for discipline under Section 231.2615, Florida Statutes — not, at least, without more than has been shown here. 3/ Therefore, even if all the general deficiencies in Chavero’s performance that the Commissioner attempted to prove at hearing were found to have existed, none amounts to a violation either of Rule 6B-1.006(3)(a) or of Rule 6B- 1.006(3)(e), Florida Administrative Code. There were, however, two specific occasions on which Chavero allegedly lost his temper and threatened the physical safety of a student or students. Together, these particular instances are the heart of the Commissioner’s case against Chavero and therefore require closer scrutiny. The First Period Incident On January 27, 2000, Chavero gave his first period class a mid-term examination. Near the end of the period, Chavero allowed the students who had completed the test to talk quietly, provided they would not bother the few who were still working. V. D. and J. A., who were sitting together in the back of the room, began conversing with one another. The class soon began to get loud, and Chavero told the students to be quiet. He held up V. D. and J. A. as an example of how he would like the class to behave, saying: "Why can't you guys whisper like J. A. and V. D." The class momentarily calmed down but quickly became noisy again. Chavero began to get angry. He told the students to lower their voices. V. D. continued to talk, and Chavero yelled at her to be quiet. Instead of obeying, V. D. denied that she had been talking loudly, which caused Chavero to yell at her some more. V. D. asked Chavero not to scream at her; he did not stop. At some point during this exchange, V. D. said to Chavero: “What the f*** is your problem?” Enraged, Chavero slammed his fist on a desk and moved quickly toward V. D. Some students, including V. D. and J. A., recall that as Chavero approached V. D., he raised his open hand, palm facing forward, as if to strike her. A number of other students, however, in written statements prepared on January 27, 2000, made no mention of the teacher’s raised hand. For his part, Chavero adamantly denied having raised his hand against V. D. V. D.’s immediate reaction suggests that she was not intimidated or frightened by Chavero’s rapid approach, regardless where his hand was. V. D. testified that she “lost [her] temper,” “got up and . . . exchanged a few words” with Chavero. T-55. More important, it is undisputed that Chavero did not touch V. D. Rather, he returned to his desk at the front of the class to write a “referral” — that is, a written account of V. D.’s misconduct that would be provided to the assistant principal for further handling. V. D. gathered her belongings and left the room. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to hit V. D. or to cause her unnecessary embarrassment or disparagement; that V. D. suffered any physical or emotional injury or felt embarrassed or degraded; or that V. D. was in danger of likely being harmed in Chavero’s classroom on January 27, 2000. As a result, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety. The Third Period Incident R. G. was a student in Chavero’s third period math class. R. G.’s academic performance was extremely poor, and he frequently was excluded for bad behavior. He was defiant and aggressive, openly challenged Chavero’s authority, and, on at least one occasion, threw staples at the teacher. One day — the precise date of this event is not clear, but it apparently occured after January 27, 2000 — R. G. was in Chavero’s class, sitting in the back, not doing his assignment. Because R. G. was refusing to do his schoolwork, Chavero wrote a referral to send him to the assistant principal. R. G. testified that before Chavero wrote the referral, he had insulted R. G. by saying that his (R. G.’s) mother was raising an animal. However, another of Chavero’s former students named F. V., who witnessed this particular incident and testified at hearing on the Commissioner’s behalf, did not hear Chavero make this remark to R. G. Indeed, F. V. testified that he had never heard Chavero make rude or disrespectful comments to his students, nor had he observed Chavero become angry with the class. Chavero denied having insulted R. G., and the evidence supports his denial. After Chavero had filled out the referral, R. G. rose from his seat and approached Chavero’s desk. R. G. reached out to snatch the referral from Chavero’s hand in a manner that, according to F. V., was apparently intended “just to . . . annoy” Chavero. T-93. Specifically, as R. G. grabbed for the referral, he made a feint toward Chavero’s grade book. As F. V. explained, it was well known that Chavero “didn’t like it when people touched [his] grade book.” T-93. In the process, R. G. may have hit Chavero’s hand, although he denied having done so. Reacting to R. G.’s provocative act, Chavero slapped R. G.’s hand away. R. G. was neither injured nor embarrassed by this. Rather, he became angry and began yelling and cursing at Chavero, insulting him. Both R. G. and F. V. recalled that Chavero then said to R. G., “Oh, hit me if you’re a man,” or words to that effect. Chavero, however, testified that his exact statement to R. G. was: “[I]f you try to be physical you’ll get in trouble.” T-124. Chavero was the most credible witness of the three. After Chavero warned R. G. not to become physical, R. G. left the classroom. The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to harm R. G. or to cause him unnecessary embarrassment or disparagement; that R. G. suffered any physical or emotional injury or felt embarrassed or degraded; or that R. G. was in danger of likely being hurt in Chavero’s classroom on the day of the third period incident. To the contrary, it appears that R. G.’s aggressive and provocative behavior may have threatened Chavero’s physical safety. Consequently, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Administrative Complaint against Respondent Armando M. Chavero. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 February, 2001.
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue The issue is whether the termination of Respondent, Barbara Paul, by Petitioner, "for cause," was justified.
Findings Of Fact Respondent Barbara Paul is a teacher covered under the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and DCSB for 2006-2009. Respondent is a tenured or experienced contract teacher, who can only be terminated for "just cause" as defined in the Tenure Act and the CBA. Respondent has used the word "boy" on more than one occasion to address male students. Respondent has told a female student to "shut her mouth" or "shut her face." Respondent worked for DCSB as a full-time "tenured" teacher during the 2006-2007, 2007-2008, and 2008-2009 school years. Respondent, originally born in Jamaica, moved to the United States in March 1989, where she has remained since that time and, with the exception of one year in 1998, has been employed as an English/Language Arts ("E/LA") teacher for DCSB. E/LA consists of primarily literacy, English, grammar, some writing skills, and aspects of reading. During the 2008-2009 school year, Respondent, a "tenured/professional contract" teacher, was certified by the Florida Department of Education (FDOE) to teach language arts and was assigned to teach creative writing to 12 and 13-year-old students (sixth grade) at Paxon. DCSB is a duly-constituted school board charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida, pursuant to Section 1001.31, Florida Statutes. Pursuant to her contract with DCSB, and consequent to holding a professional teaching certificate issued by FDOE, Respondent was, at all times material, subject to DCSB's rules and regulations as well as all applicable Florida laws and regulations, including Sections 1012.23 and 1012.33, Florida Statutes, and FDOE Rules 6B-1.001 and 6B-1.006. Teachers employed by DCSB are bound by a "Progressive Discipline" Policy, which generally prohibits adverse employment action based on misconduct unless the following steps are taken: (a) a verbal reprimand, (b) a written reprimand, (c) a suspension without pay, and (d) termination. The policy may be disregarded for "some more severe acts of misconduct." Respondent does not dispute that the following steps in the Progressive Discipline Policy were taken, although she disputes the factual particulars of such disciplinary actions: September 2006, Step I Verbal Reprimand, DuPont Middle School, based on inappropriate comments made during a parent conference; October 2006, Step II Written Reprimand, DuPont Middle School, based on inappropriate, racial comments to students; May 2007, Step III Five-Day Suspension, DuPont Middle School, for battery upon a student; February 2008, Step II Written Reprimand, Paxon Middle School, for threatening to shove a broom down a student's throat. If the instant charges are supported, Respondent's misconduct during school year 2007-2008 would constitute "Step Three," the final step of the Progressive Discipline Policy, which justifies termination of her employment. The instant charges are based on an incident that occurred on March 19, 2009, at Paxon. During the fourth period (toward the end of the school day), six students reported to the sixth-grade administrative office at Paxon and reported that their creative writing teacher, Respondent, would not allow them into her classroom. Ronnie Williams was the assistant principal and the sixth-grade house administrator at that time. Mr. Williams instructed the school's security officer, J.R. Johnson, to escort the students back to the classroom to find out what was going on, because they had no passes or referrals from the teacher, as required by school policy. Mr. Johnson returned about 15 or 20 minutes later with the students and reported that, contrary to school policy, Respondent still refused to allow them back into her class, and that she stated she would be writing them referrals. Two of the students, K.W. (female) and D.P. (male), told Mr. Williams that Respondent had pushed K.W. and also stepped on K.W.'s foot. D.P. stated that Respondent had hit him in the face with a book. After that, because of the seriousness of the allegations, Mr. Williams asked each student to complete a written statement of what they observed in the classroom. The students were kept separated from one another while they wrote their statements, so that Mr. Williams could observe them. Mr. Williams testified that the children did not have an opportunity to speak with one another or to compare statements, and did not collaborate in any manner when the written statements were done. Mr. Williams then individually interviewed each student. Each of the student's statements was consistent with one another and with K.W.'s and D.P.'s accounts. According to the students' written statements (all of which were entered into evidence without any objection from Respondent) and interviews, D.P. and K.W. had entered Respondent's classroom before the final bell had rung. After she entered the class, K.W. realized she had left her purse with another student and stepped out of the class to retrieve it. D.P. reported that he asked Respondent for permission to go the restroom, which she granted. Both children had put their book bags and books down in the classroom. D.P. reported that when he returned, there was a line of students about four or five deep waiting outside the classroom trying to get in. Respondent was standing in the doorway blocking their entrance and trying to close the door against the students. D.P. went around the line to try to get back in the classroom, reminding Respondent that she had given him permission to go the restroom. Nonetheless, she would not let him back in. Instead, she twisted D.P.'s arm to remove his hand from the classroom door handle, pushed him back and back-handed him with a book across the bridge of his nose and his face. When K.W. tried to enter the classroom to retrieve her book bag, Respondent yelled at her and pushed her back with her forearm and elbowed her two or three times in the chest and in the course of doing so, Respondent also stepped on K.W.'s foot and scratched her. After striking K.W. and D.P., Respondent pushed them out of the classroom door and sent them and four other children to Mr. Williams, the sixth-grade house administrator, without passes or referrals. The following morning, Mr. Williams sent an e-mail to the principal, Dr. Darrell Perry, summarizing the incident. Mr. Williams described a telephone conversation he had with Ms. W. (mother of K.W.), in which Ms. W. told Mr. Williams that her daughter reported to her that Respondent had made several derogatory racial comments to students in class, including using the phrase "negro power," which Ms. W. found to be offensive. The mothers of both K.W. and D.P. came to the school to complete statements. Ms. P. also filed a formal complaint against Respondent to the DCSB police officer on duty at Paxon, Officer Green. Mr. Williams received a referral from Respondent concerning K.W. on the date of the incident, Thursday, March 19, 2009, but did not receive a referral concerning D.P. until Monday, March 23, 2009. Mr. Williams concluded from this delay that "the reason the referral [for D.P.] was written was because there were allegations made against Respondent from D.P." Mr. Williams also observed on the date of the incident a recent scratch on K.W.'s arm that K.W. told him was caused by Respondent. Respondent called Ms. P. (mother of D.P.) on March 19, 2009, telling her that Respondent was writing her son up for skipping class. When Ms. P. tried to ask her about the details, Respondent proceeded to talk about other students in her class. When Ms. P. asked Respondent to tell her what happened with her son, Respondent got short with her and hung up. About five or ten minutes later, her son, D.P., called her and told her that when he got to the classroom, he asked Respondent for permission to go to the restroom, which Respondent granted. When he returned to the classroom, there was a line of children at the door of the classroom trying to get in, and Respondent was in the middle of an altercation with another female student, K.W. Respondent and K.W. were "going back and forth," and D.P. said that he saw Respondent push K.W. and then step on K.W.'s foot. When he tried to enter the classroom, Respondent pushed him and hit him in the face with a book. When Ms. P. returned home, she received a call from Ms. W., the mother of K.W. Prior to the telephone conversation, Ms. P. had never spoken to Ms. W. They did not know each other because they lived in different parts of town. D.P. and K.W. did not have a chance to speak with each other after the incident, because it was the end of the day and Ms. P picked up her son from the office when he telephoned her. The story K.W. told her mother concerning the incident with Respondent was the "same exact thing that my son had just told me when I picked him up from school and when he had called me." Prior to this incident, D.P. had received only one referral at any time in his school history for an altercation with another student. Ms. P.'s testimony was consistent with the written statement that she made on March 20, 2009, the day after the incident. At the hearing, D.P. testified that after the warning bell had rung, but prior to the late bell ringing, he asked Respondent if he could leave the classroom and go to the restroom. Respondent said yes. When he was trying to get back into the classroom, another student was also trying to get into the class to get her things. Respondent was pushing her and stepped on her foot. When D.P. tried to go in, Respondent pushed him and then she hit him in the face with a book. D.P., a small-framed, 11-year-old male of only about five feet tall at the time of the incident, demonstrated how Respondent had hit him, and described the book she used as an oversized literature book with a hard cover. He demonstrated and testified that Respondent hit him with the book across the face, striking him in the nose, that it hurt him when she struck him and that it looked like it was intentional on her part and not an accident. D.P.'s testimony was consistent with the written statement he made to Mr. Williams on the day of the incident. Upon receipt of the incident report, DCSB's Office of Professional Standards (OPS) initiated an investigation. The investigation was primarily handled by OPS Investigator John G. McCallum, an experienced former detective with the Jacksonville Sheriff's Department and investigator with the State Attorney's Office, now serving DCSB. While the principals generally handle Step I and Step II disciplinary actions, OPS normally investigates more serious cases, such as the instant case, alleging a battery on a student. Within days of the incident, on Monday, March 23, 2009, Mr. McCallum went to the school and interviewed Assistant Principal Ivey Howard, who was in charge of curriculum; Mr. Williams, the sixth-grade house administrator; student- victim K.W.; student-victim D.P.; Security Officer Johnson; and Christina Price, a reading resource teacher assigned to Respondent's classroom that day. Mr. McCallum also attempted to interview Respondent, but she elected to provide her statement through her counsel. Mr. McCallum also reviewed all the statements that Mr. Williams had received from the students and Ms. P., the mother of D.P. When he individually interviewed students D.P. and K.W., Mr. McCallum asked them also to demonstrate with him what happened, putting Mr. McCallum in the positions that they were in relative to Respondent and the other students. This helps him evaluate witness credibility, in that sometimes a child witness will demonstrate details in the "role play" that he or she may not have put down in the written statement. Similarly, D.P. demonstrated to Mr. McCallum that Respondent "back-handed him" with a workbook across the bridge of his nose and across his face and yanked, twisted, and pulled his arm. Mr. McCallum reported that K.W.'s and D.P.'s verbal statements from his interviews were consistent with their and the other students' written statements. Respondent's version of the events of March 19, 2009, differs dramatically from those of the seven student and two adult witnesses. Respondent asserted that six students were seven minutes late to class, yet she allowed them in the class and wrote their names on the tardy log. She then stated that two students, C.B. and B.P. were "skipping class" and that she saw them at the end of the hallway. Although this detail was not mentioned in her written statement (and is completely contradictory to the testimony of Paxon Principal Darrell Perry), Respondent testified at the hearing that the teachers at Paxon were required to keep their classroom doors locked because "this is the inner city where guns were rampant in our classrooms and outside." She stated that someone knocked on the classroom door, and when she opened it, three students, K.W., D.P., and V.C. (a male student), ran out of her classroom. She then said that the three students stopped "at my door," and K.W. tried to come back in to get her "stuff" from the room and in doing so "slammed" her body into her and cursed at Respondent, demanding her "stuff." Respondent claims to have received an injury from that contact which was treated at an emergency walk- in medical clinic later that evening. She further testified that V.C. and D.P. "forcefully kept the door ajar" as she attempted to close it "to diffuse the situation." Further, contrary to all of the students' statements, Respondent denies pushing or striking any student, although she admits she may have "accidentally" stepped on K.W.'s foot. In her written statement, she asserted that she "wrote referrals on all students who were outside, except A.W." In fact, the only referrals she wrote were for K.W. and D.P. Mr. McCallum found the interviews with the two student victims to be credible and consistent. Conversely, he found Respondent's statement to be markedly distinct from the other statements. Respondent's claim that she was injured and sought medical treatment is doubtful when she failed to report any such claim to the school's administration nor produce at any time any records or medical reports to support this claim. Prior Discipline: A Pattern of Similar Misconduct Paxon Middle School – February 2008 (Step II Written Reprimand) Respondent was hired by Dr. Darrell Perry, principal of Paxon, to teach English and Language Arts to sixth-grade Paxon students beginning with the 2007-2008 school year, which was also Dr. Perry's first year at Paxon. Dr. Perry selected Respondent from the "voluntary surplus list" and interviewed her for the position. Based on her experience as a "seasoned English language arts teacher," he hired Respondent. Dr. Perry was aware of Respondent's prior disciplinary history when he brought her to Paxon, partly because Respondent had to serve out a suspension she received while at DuPont the prior school year for a Step III disciplinary action charging battery upon students. Notwithstanding her prior disciplinary history, Dr. Perry testified that he believed Respondent possessed the right skills and was willing to give her an opportunity to grow in a different setting. Nonetheless, on May 24, 2008, Dr. Perry issued to Respondent a Step II Written Reprimand for Respondent's "inappropriate and offensive" remarks made and actions taken with female student, A.H., on February 14, 2008, in which A.H. alleged that Respondent placed a broom handle in A.H.'s face and stated, "I will shove this broom down your throat." Before issuing the discipline, however, Dr. Perry referred the matter to the OPS (Director John Williams and Investigator Leroy Starling) to investigate. Based on their investigation, interview of Respondent, and review of witness statements, Investigator Starling issued his report sustaining the allegations. Allen Moore, who was, at the time of the A.H. incident, assistant principal at Paxon and eighth-grade house administrator, performed the initial investigation of the alleged misconduct, which was part of his responsibilities as house administrator. Mr. Moore recalled that A.H. came to his office, directly from Respondent's class, and told him that after a verbal exchange between the two, Respondent held a broom handle in A.H.'s face and threatened to shove the broom handle down her throat. Mr. Moore then selected at random five other students from Respondent's class, those whom he knew to be credible and good students, and separately interviewed them and asked them to prepare statements. He also asked A.H. to prepare a written statement. Each student confirmed A.H.'s statement that Respondent threatened to put the broom handle down A.H.'s throat. Mr. Moore concluded that the incident took place as A.H. had stated. In direct contrast to this set of facts, according to Respondent, one of the other female students in the class picked up the broom and asked if she could sweep the floor. Respondent testified that she thought the student was going to hit A.H. or sweep her feet, because A.H. had tripped her. She asked the student to put the broom away. Respondent took the broom from her and was on her way to put it away, stating that she was walking away from A.H., when A.H. began cursing at her, telling Respondent to move or she would "beat" her "a - - " with the broom. Respondent stated that she responded: "and what should I do, stick [the broom] in your mouth?" With respect to the level of discipline he gave to Respondent for the incident, a Step II Written Reprimand, Dr. Perry testified that while he could have given her a Step III termination based on the allegations of the A.H. incident and Respondent's previous Step III discipline issued at Dupont for similar behavior, he decided to give her a Step II. Dr. Perry believed Respondent had some strengths that she could contribute at Paxon. He hoped to rehabilitate her. Shortly before the end of the 2006-2007 school year and before requesting a voluntary transfer to Paxon, Respondent received a five-day suspension for battery upon two DuPont students and for physically blocking another student from leaving her classroom in three separate incidents that took place within days of one another, on April 24, May 2, and May 3, 2007. April 24, 2007 - Alleged Battery of Female Student P.C. In the first occurrence on April 24, 2007, a female seventh-grade student, P.C., was trying to leave Respondent's classroom. P.C. reported that in an attempt to keep her from leaving the classroom, Respondent grabbed P.C.'s ID lanyard, which was around P.C.'s neck, as P.C. walked by Respondent and Respondent yanked her back, leaving her with a rope burn mark on her neck. P.C. reported the incident right away to Assistant Principal Shannon Judge, who testified at the hearing and, shortly after the occurrence, had prepared a written statement to then-school Principal Gary Finger summarizing the incident and her investigation. P.C. stopped Ms. Judge in the hallway, coming straight from the classroom moments after the incident with Respondent, and was visibly upset. P.C. told Ms. Judge that Respondent had stopped her from leaving the room and had grabbed her by her badge as she attempted to leave, which she wore on a lanyard around her neck. P.C. said to Ms. Judge, "look at this," and P.C. turned around and held up her hair in the back. Ms. Judge could see "one dark red line and a smaller red line" on the back of P.C.'s neck, which was not a cut, but which looked like a "burn" where the lanyard had been pulled. P.C. told her that some students had been told by Respondent to stay after class, but that P.C. was not one of them. When P.C. tried to leave the classroom, Respondent blocked the doorway. As she attempted to go around Respondent, Respondent grabbed her ID lanyard. Ms. Judge, who was on her way to another assignment in the lunch room, instructed P.C. to go to Ms. Judge's office and fill out an incident form. When Ms. Judge returned to her office approximately 45 minutes later, she reviewed P.C.'s statement, interviewed her, and took a photograph of the marks on the child's neck, which by then had somewhat faded. P.C. had listed some witnesses in the classroom to the event, whom Ms. Judge interviewed and asked to complete written statements. Ms. Judge also "pulled some random kids from the class" who were not listed on P.C.'s list, each of whom also individually gave written statements and were separately interviewed by Ms. Judge. Ms. Judge also called Respondent and took a verbal statement from her over the telephone. Respondent relied upon her written statement made through her attorney, delivered to DCSB nearly three months later on July 16, 2007, concerning the incident with P.C. Respondent admitted she did have "words" with P.C., and that P.C. was trying to leave her class when she was not supposed to, but that she had not grabbed P.C. by her lanyard. Perhaps, she stated, her lanyard "got caught" on Respondent's arm as P.C. tried to push past her. In her written statement, Respondent also speculated that the marks on P.C.'s neck may have been "self-inflicted or occurred at another time and place." When further questioned about that statement at the hearing, Respondent replied: "She did yank on her lanyard, but I don't know if that was sufficient to leave a mark." When questioned whether Ms. Judge would have any reason to lie about what P.C. told her and the marks on P.C.'s neck that Ms. Judge observed, Respondent replied: "I don't know of any reason." Respondent's statement and testimony, with no evidence to support it, does not support her version of the events. Based on Ms. Judge's investigation, the consistency among all the student witness statements with P.C.'s account, the fact that P.C. was a good student who rarely, if ever, received any referrals or got into trouble, and Ms. Judge's observation of the red marks on P.C.'s neck within moments after the altercation, Ms. Judge concluded that the P.C.'s allegations were substantiated and recommended to Mr. Finger that Respondent should be disciplined for her actions. May 2, 2007 – Alleged Battery of Male Student D.W. On May 2, 2007, within days of the P.C. incident, Respondent had taken her class out into the hallway so that some of the children could use the restroom. One of the male students, D.W., came out of the restroom, and, according to Respondent, she thought he had not washed his hands and was attempting to wipe his hands on Respondent. Carmen Polenco, a science and math teacher for seven years at DuPont and a former director of a program in New York treating women dually diagnosed with psychiatric problems and drug additions and their infant children, was coming out of the administrative office on May 2, 2007, and walking down the main hallway where Respondent and her students were located. As Ms. Polenco approached, she heard students yelling "let him go, let him go" and saw that Respondent had grabbed a male student, D.W., by the collar of his shirt held up around his throat and was pushing him backwards down the hallway toward Ms. Polanco, saying something like "Oh, no you won't" to the student. Ms. Polanco demonstrated at the hearing how Respondent was holding D.W. with one hand around his shirt collar and her other hand in the air. Ms. Polanco told Respondent to stop, and she let D.W. go. D.W. yelled to her, "she grabbed me and she wouldn't let me go and I was scared she was going to hit me." After Respondent let D.W. go, Ms. Polanco noticed that Respondent had scratched the student's neck and broken his necklace. Respondent told Ms. Polanco that the student had placed his hands, open palm on the top of her shoulder. Respondent was "very angry" by this and proceeded to grab him, because, as she stated to Ms. Polanco at the time, "I did not want his dirty hands on me." Ms. Polanco also made a written statement to Assistant Principal Steele the day after the incident. Mr. Steele had also observed some of the incident, and had also memorialized his observations in a memorandum to Mr. Finger one day later. Respondent's version of events again differs dramatically from all the other witnesses' testimony. Again, Respondent relied on her written statement of July 16, 2007, which she affirmed at the hearing. Respondent admitted that she held D.W. by his lapel (not his collar), but stated that she was walking with him "side by side," and not walking him backwards down the hallway as Ms. Polanco observed. At the hearing, Respondent did not have any explanation for Ms. Polanco's contradictory testimony other than that she "was not within close proximity enough to see what happened." In light of Ms. Polanco's testimony that she had a clear view of exactly what Respondent was doing, and the other witness testimony, Respondent's testimony is not credible. May 3, 2007 – Blocking Student's Exit One day later, while he was still in the process of writing up Respondent for the previous two incidents, Mr. Finger received a phone call in his office from Respondent telling him that one of her students would not leave her classroom. When he got there, Mr. Finger took the student out in the hallway and asked him why he did not leave the room. The student responded that it was because Respondent was blocking the door and would not let him out. Mr. Finger then selected some other students at random from the class to find out if the student was telling the truth, and the other student statements were consistent – that Respondent had blocked the door. Respondent's statement summary as to these three incidents is typical of her response of outright and blatant denial to all of the allegations of misconduct that have been lodged against her over a period of years and across two schools and administrations. Despite credible evidence to the contrary, Respondent has repeatedly placed the blame on the very students that she victimized. As a result of the three incidents, on May 23, 2007, Mr. Finger recommended that Respondent receive a Step III five- day suspension, which was approved by DCSB, and which Respondent served out after she voluntarily transferred to Paxon. DuPont Middle School – October 2006 (Step II Written Reprimand) Respondent received a Step II Written Reprimand for comments that she made in class and during a parent-teacher conference in October 2006, in which Mr. Finger and then- Assistant Principal Loretta Hines were also present. The meeting was initiated by the female parent when her son came home and told her that Respondent exhibited prejudicial behavior toward the African-American children as compared to the white children, and made racist comments in the classroom. For example, the child told his mother that Respondent would let the white children go to the bathroom, but not the African-American children, and that she told a white student that she had to send him to a "time-out" because she didn't want the others to think she was a racist. She also referred to African-Americans as "negroes" and called male black students "boy." During the conference, Respondent told the parent that she had no problem referring to African-American male students as "boy" because in her country of origin, Jamaica, this was not an offensive salutation. Respondent made other comments in the conference that angered the parent, and "embarrassed" and "disgusted" Ms. Hines and Mr. Finger. At that time, Respondent had been in the United States for approximately 16 years. Respondent stipulated that she used the term "boy" to address male students, but denies she used it specifically with African-American male students. At the hearing, rather than testify concerning the specific allegations of her misconduct, Respondent "reaffirmed" the written statement she made to Principal Finger on October 18, 2006, in which she denied being a racist, although she admitted that "sixteen years should be long enough to be able to use the proper terminology. However, habits do not just disappear overnight." DuPont Middle School – September 2006 (Step I Verbal Reprimand) Respondent received a Step I verbal warning for telling students to "shut their mouths" or "shut their faces." In her written statement, Respondent stated that she told a female student on at least one occasion to "shut her face because her face was in mine." She also stipulated to this fact in her pretrial stipulation.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Duval County School Board enter a final order terminating the employment of Barbara Paul as a teacher. DONE AND ENTERED this 6th day of May, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of May, 2010. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Carol Mirando, Esquire City Hall St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ed Pratt-Dannals, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether Petitioner has cause to terminate Respondent's employment as a school custodian.
Findings Of Fact At the times pertinent to this proceeding, Respondent was employed by Petitioner as a school custodian. In the fall of 1994, the Respondent was arrested and charged with the offense of theft. The property in question was a Green Machine weed eater that was owned by the Petitioner. Petitioner assigned John Bell, an investigator employed by the Petitioner's police department, to investigate the alleged theft. Respondent admitted to Mr. Bell that he had possession of the piece of equipment, he knew that it was valued at approximately $300.00, but he asserted that he bought the machine for $100.00 cash from an unknown person Respondent said was a school board employee. Respondent did not have a receipt for the purchase or any other evidence to substantiate his explanation as to how he came into possession of the stolen property. In December 1994, Respondent was found guilty of theft following a bench trial in the criminal proceeding. Adjudication of guilt was withheld and he was fined $105.00 in court costs. He was ordered to pay restitution to the School Board in the amount of $160.82 for the cost of its investigation. The School Board has the authority to terminate Respondent's employment for cause. The School Board's Policy 3.27 pertains to suspension and dismissal of employees. If the Superintendent finds probable cause to recommend to the School Board that a member of the non-instructional staff be suspended without pay and subsequently dismissed, the Superintendent is required to notify the employee in writing. The policy also contains provisions for the information that must be included in the notice to the employee. By letter dated February 9, 1995, the Superintendent advised Respondent that cause existed to terminate his employment on the grounds of theft of school property and misconduct in office. On February 21, 1995, the School Board, based on the Superintendent's recommendation, suspended Respondent's employment without pay pending this termination proceeding. The Superintendent and the School Board followed the pertinent policies in suspending the Respondent's employment without pay pending this dismissal proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that terminates Respondent's employment as a school custodian. DONE AND ENTERED this 21st day of June, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1995. COPIES FURNISHED: Lee M. Rosenberg, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Mr. Noyland Francis 7326 Willow Spring Circle Lantana, Florida 33463 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2017.
The Issue The issues are whether Respondent, William Doran, committed the acts alleged in the Statement of Charges and Petition for Ten-Day Suspension Without Pay, and, if so, the discipline to be imposed.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at SMS, a public school in St. Lucie County, Florida, pursuant to a professional services contract. Respondent has been employed by the School Board for approximately eight years. Respondent most recently provided individualized instruction and assistance to students with individualized education plans. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the St. Lucie Classroom Teachers’ Association. Lydia Martin, principal of SMS, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year On November 8, 2010, Respondent was counseled by Principal Martin for discourteous and disparaging remarks to students causing them to feel unnecessary embarrassment. Students and parents reported that Respondent made comments in the classroom including “the Bible is crap and we should not believe it,” told students they could not work in groups because they “would just bullshit,” called a student “stupid,” and referred to a group of African-American students as the “black coffee group.” Parents also expressed concern that Respondent discussed prostitution and told students that, in some countries the younger the girls are, the better it is considered because they have not lost their virginity. Respondent denied saying that the Bible is “crap” but admitted telling students that he did not believe in it. Respondent denied calling a student stupid but admitted that he told a student certain choices may be what a “not so smart” person would do. Respondent admitted to referring to a group of black students as a “coffee klatch,” but denied any reference to race or ethnicity. Respondent admitted discussing prostitution in the context of human rights and his personal observations of sex trafficking while serving in the military in East Germany. Principal Martin provided Respondent with a written Summary of Conference that stated, “In the future, do not make comments to students that may cause them embarrassment or that are unprofessional. My expectation is that you will treat students with respect and follow the district guidelines under 6.302 Employee Standards of Conduct and Code of Ethics for Educators.” On May 2, 2011, Principal Martin gave Respondent a Letter of Concern for making comments to a student that caused embarrassment to the student when Respondent stated that, “somebody cried about not getting their stupid PTO FCAT Goodie bag” and that “they were filled with cheap candy.” The daughter of the PTO president was in the class. The 2011-2012 School Year During the fall of 2011, Respondent was accused of inappropriately touching students.1/ As a result, on December 5, 2011, Respondent was removed from the classroom at SMS and placed on Temporary Duty Assignment at the School Board district office pending an investigation into the allegations. In a letter from Maurice Bonner, director of personnel, dated December 14, 2011, Respondent was directed not to engage witnesses, their parents, or potential witnesses during the open investigation. While he was working at the district office, two co- workers of Respondent overheard Respondent contact the parents of one of the student witnesses involved in the investigation by telephone to discuss the investigation. Also, during the investigation, it was discovered that Respondent had taken pictures of students when they were misbehaving in his class as a means of disciplining those students. On February 13, 2012, Principal Martin provided Respondent a Letter of Reprimand for the violation of the administrative directive (not to contact witnesses and parents during a pending investigation) and inappropriately disciplining students. This Letter of Reprimand reminded Respondent of his previous counseling and Letter of Concern and notified Respondent that his failure to follow the prior directives or violation of any other School Board policy would result in more severe disciplinary action being taken against him. In May 2012, Respondent received a three-day suspension without pay for embarrassing students. Respondent is alleged to have announced a student’s name in class and stated that he (Respondent) was “just wasting red ink” by grading the student’s paper. Respondent does not deny the statement, but claims he muttered it under his breath, and it was overheard by several students. Respondent embarrassed another student by sharing personal information about her family with the class. A student’s mother had privately discussed with Respondent the fact that her daughter might act out in class due to the distress she was experiencing as a result of her parents’ divorce. During a classroom discussion about families, this student made a comment that she had a “normal” family. Respondent said to the student, in front of the class, “If you’re so normal, where is your father?” Respondent admits this was inappropriate behavior on his part. The 2012-2013 School Year On May 3, 2013, Respondent was in the classroom of another teacher for the purpose of providing additional teaching assistance for several students. On this date, the usual classroom teacher was absent, and a substitute teacher was present. While walking around the classroom, Respondent observed two students, M.M. and A.L., engaged in a game of “slaps,” in which both students tried to hit each other’s hands. Respondent directed M.M. to stop and asked why he was doing the game during class time. M.M. responded that he was trying to cheer up A.L., it felt good, and they liked playing the game. At this time, Respondent was approximately eight to ten feet away from M.M. who was sitting at a desk. Respondent told M.M. that he didn’t care if it felt good for M.M. to “jump off a bridge,” it was not to go on in the classroom and to get back to work. M.M. asked Respondent what he meant and the two began to argue. Respondent approached M.M. and bent over him while M.M. remained seated at his desk. Respondent testified that he closed the gap between him and M.M. when he felt M.M. told him to shut up by saying “get out of my face.” Respondent stated, “At that point I decided I wasn’t going to let him push me around and I decided to engage him.” The credible testimony from several of the student witnesses was that Respondent approached M.M. and stood over him and that M.M. repeatedly asked Respondent to “please, get out of my face” and to leave him alone. M.M. also cursed and used a racial slur directed at Respondent.2/ Respondent told M.M. to get up and get out of the classroom. When Respondent did not move away from looming over M.M., M.M. said something to the effect of “I don’t want to do any of this.” M.M. stood up, and he and Respondent were face to face, only a few inches apart. M.M. told Respondent that he was a grown man and that he was “acting like a bitch.” Respondent repeatedly mocked M.M., yelling in his face, “Come on big man-- What are you going to do about it, hit me?” and told M.M. to hit him because it would “make my day.” Respondent called M.M. a coward several times when M.M. refused to hit Respondent and backed away. While this was going on, the other students in the classroom believed that Respondent and M.M. were going to have a physical fight, and they stood up, pushed the desks and chairs back, and got out their cell phones to take photos and video. Several of the students began screaming and yelling.3/ M.M. left the classroom and continued to curse at Respondent as Respondent followed him to the Dean’s office. During this altercation, the substitute teacher did not intervene or attempt to help or contact the SMS office. Respondent admits that, once M.M. told Respondent to “get out of his face,” Respondent did nothing to de-escalate the situation. To the contrary, Respondent intentionally escalated the altercation. According to Respondent, “He [M.M.] needed to be shown you can’t tell an adult to shut up.” Respondent testified that he believed that he was teaching M.M. a “life lesson”-–that “you can’t engage an adult and expect to get away with it.” SMS has a protocol for handling belligerent students in the classroom. Teachers receive training at the beginning of each school year regarding the difference between classroom managed behaviors and office managed behaviors. Teachers are trained not to engage a belligerent student but rather to use the buzzer which is tied to the intercom or telephone, available in every classroom, to notify the main office of the situation. In response, someone from the trained management team will come to the classroom to retrieve the student and bring them back to the Dean’s office. As explained by Principal Martin, the purpose of sending an adult from out of the classroom to retrieve a disruptive student is to minimize the possibility of harm to either the student, teacher, or other students, and to allow a “cooling off period” while the misbehaving student is escorted to the Dean’s office. During the altercation with M.M., Respondent made no effort to use the buzzer or the telephone or ask anyone else to notify the office of the escalating situation. Respondent was aware of the protocol but chose to ignore it. According to Respondent, “[M.M.] wanted to intimidate me and he failed and I let him know about it.” Respondent was purposely confrontational and testified that he wanted to show M.M. that Respondent “was not going to back down.” Respondent disregarded the protocol because he believed it would be ineffective and he wanted to teach M.M. a “humility lesson.” Respondent’s explanation, that he thought using the buzzer or telephone would be ineffective because sometimes the buzzer does not work or he was blocked from reaching the buzzer by M.M., was not supported by credible evidence. Further it was directly contradicted by Respondent’s explanation that he didn’t contact the office because M.M.’s behavior problems likely started in elementary school and that at this point, M.M. was not responsive to “conventional means of disciplining students.” While the undersigned is sensitive to the difficulty faced by teachers when dealing with confrontational and unruly students, no rational justification was provided for Respondent’s extreme and outrageous act of attempting to engage M.M. in a fight and labeling him a coward in front of his peers. Respondent’s actions were an unwarranted attempt to bully and belittle a middle school student. In May 2013, Respondent received a letter from then Superintendent Michael Lannon advising Respondent that he was recommending him to the School Board for a ten-day suspension without pay. During the School Board’s investigation and at the final hearing of this matter, Respondent expressed no remorse regarding his actions towards M.M. and testified that, despite knowing his actions constitute a violation of School Board policies, he would do the same thing again. Respondent received all the necessary steps of progressive discipline required by the collective bargaining agreement between the parties prior to receipt of the recommendation for the ten-day suspension without pay. As discussed in greater detail below, the School Board proved by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order finding William Doran guilty of misconduct in office, suspending his employment without pay for a period of ten school days, and placing him on probation for a period of one year. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2014.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against Respondent on the basis of alleged misconduct which is set forth in a three count Administrative Complaint. The misconduct alleged consists primarily of assertions that the Respondent used various forms of corporal punishment on her students and that she also engaged in verbal abuse of her students.
Findings Of Fact The Respondent currently holds Florida teaching certificate number 151121, covering the area of elementary education. The certificate is valid through June 30, 1995. During the 1990-1991 school year and during the 1991-1992 school year, the Respondent was employed as a teacher at Charles R. Drew Elementary School in the Dade County School District. In January of 1992, the Respondent threw a wooden ruler at A. S., who was a minor male student in her class. The ruler hit A. S. in the face and left a scratch on his face. This incident took place in class in the presence of other students in the class. During the 1991-1992 school year, the Respondent pinched A. S., a minor male student, on the ear in front of the other students in the class. During the 1991-1992 school year, the Respondent struck L. W., a minor female student, with a ruler on her hands and on her legs. The ruler left marks on L. W.'s hands. Student L. W. cried as a result of being struck with the ruler and she felt sad. During the 1991-1992 school year, the Respondent on several occasions used offensive and indecent language in the classroom, sometimes directing such language towards her students. The offensive and indecent language included such words as "fuck," "damn," "bitch," and "ass." During the 1991-1992 school year, the Respondent used tape to restrain M. S., a minor male student. Specifically, the Respondent taped student M. S.'s mouth closed, taped his arms to the arm rests of his chair, and taped his feet to the legs of his chair. During the 1991-1992 school year, the Respondent used tape on minor male student, P. B., to keep his mouth closed. Student P. B. was taped up in front of the class, which caused him to feel sad. During the 1991-1992 school year, the Respondent used tape on minor male student, A. S., to keep his mouth closed. During the 1991-1992 school year, the Respondent used tape on minor male student, T. L., to keep his mouth closed and to prevent him from talking. The Respondent also used tape to restrain T. L. Specifically, the Respondent taped T. L. to his chair. On several occasions during the 1991-1992 school year, the Respondent threw a wooden ruler, and other similar objects, at students in her class. During the 1991-1992 school year, the Respondent struck minor male student, M. S., with a wooden ruler. This incident was observed by the other students in the class and made M. S. feel sad and embarrassed. During the 1991-1992 school year, the Respondent struck minor male student, P. B., on the buttocks with a wooden ruler. During the 1991-1992 school year, the Respondent struck minor female student, D. H., on the buttocks with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent stuck minor male student, T. L., on his left arm with a counter in class. This incident embarrassed the student. During the 1991-1992 school year, the Respondent pinched the ear of minor male student, T. L. in class. On numerous occasions prior to the 1991-1992 school year, the Respondent, and all other teachers at Charles R. Drew Elementary School, had been made aware of the policies of the Dade County School District prohibiting corporal punishment. The Respondent had also been made aware of what was encompassed by the term "corporal punishment." In a memorandum dated February 12, 1991, concerning the use of corporal punishment, the Respondent was specifically instructed not to throw rulers at students.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case revoking the Respondent's teaching certificate for a period of three years and providing that any recertification of the Respondent shall be pursuant to Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6896 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1, 2, 3 and 4: Accepted in substance. Paragraph 5: Accepted. Paragraph 6: Accepted in substance, although the language used is more accurately described as indecent or offensive than as profanity. Paragraphs 7, 8, 9, 10, 11, 12 and 13: Accepted in substance, with some repetitious information omitted. Paragraph 14: Admitted Paragraph 15: Rejected because not charged in the Administrative Complaint. Paragraphs 16, 17, 18, 19, 20, 21, 22, 23 and 24: Accepted in substance. Paragraph 25: Rejected as irrelevant. Paragraphs 26, 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details, many of which are also irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted in substance. Paragraphs 3, 4 and 5: These paragraphs are accurate summaries of a portion of the allegations and of a portion of the evidence, but there was other evidence which supports a finding that Audric Sands was struck on the chin by a ruler thrown at him by the Respondent. Paragraph 6: Rejected as contrary to the greater weight of the persuasive evidence. Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20: These paragraphs are all essentially correct summaries of the testimony described in each paragraph. Although there are differences in the details reported by the several child-witnesses, such differences are not unusual when several young children describe an event. There was a great deal of consistency on several relevant matters. Paragraphs 21 and 22: These paragraphs are essentially accurate summaries of the testimony of the witness referred to. Although the witness Mr. Jim Smith testified he never heard or saw any misconduct by the Respondent, I still find the testimony of the child-witnesses to be persuasive. The child-witnesses were with the Respondent on many occasions when Mr. Smith was not present. Also, Mr. Smith worked as an aide to the Respondent only from some time in November or December until sometime in late January. Paragraphs 23, 24 and 25: These paragraphs are essentially accurate summaries of the Respondent's testimony. To the extent the testimony summarized here conflicts with the testimony of the child-witnesses, I have generally accepted as more persuasive the testimony of the child-witnesses. Paragraphs 26 and 27: I have resolved the conflicts in the evidence other than as suggested here. I have found most of the child-witnesses' testimony to be credible. COPIES FURNISHED: Gregory A. Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 William du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 South West Third Avenue, Suite One Miami, Florida 33129 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2017.
