The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2018.
Findings Of Fact Roland C. Foote, Respondent, holds Florida teaching certificate number 107445, Graduate, Rank II. He served as Principal of Webster Elementary School (formerly Webster Junior High), hereinafter called Webster, from 1968 until he was replaced in late 1978. He has been employed in the Florida school system for more than twenty-five years. On May 8, 1978, Respondent sent a letter (Exhibit 10) to the Sumter County School Superintendent recommending the suspension of James Constable, one of the teachers at Webster. This was referred to the PPC for investigation by the Superintendent. By letter dated May 16, 1978 (Exhibit 12) some 11 teachers at Webster signed a letter to Ms. Angela J. Peterson, an investigator for the PPC, requesting an audience to discuss several urgent matters relating to Webster. Constable was one of the signers of this letter. Some of those who signed were aware the purposes was to complain of the manner in which Respondent ran Webster; others thought the purpose was to assist Constable. The first meeting with the PPC representative was held on June 6, 1978. Some eight teachers attended this meeting, discussed with Ms. Peterson several situations of which they were aware involving possible improper conduct by Respondent, and agreed to provide PPC with testimony and facts necessary to prepare charges against Respondent. Numerous additional meetings were held by this group, some with PPC representatives and others without PPC representation, for the purpose of reconstructing the dates of the incidents complained of and to ascertain who had knowledge of the incidents. Prior to discussing the specific charges preferred against Respondent and the evidence relating thereto, additional background information gleaned from the testimony and the exhibits admitted into evidence is first presented. Sumter County is predominantly a small-farm agricultural area as opposed to an urban society, with the socioeconomic level below that of most of the larger counties in Florida. In addition to those permanent residents who live and work on farms, there are migrant workers who appear at harvest time. The population mix is about 1/3 black and that is also the school population mix. Several of these students are classified as educationally mentally retarded and qualify for supplemental education programs. About 7 of the 25 teacher faculty at Webster are black and no evidence of any faculty racial tensions or frictions was presented. Friction has existed at Webster between some faculty members and Respondent for a long time. In school year 1974-75 a special workshop was conducted at Webster to improve the communications between the faculty and the administration. The workshop met with mixed success. Some of the teachers at Webster mad minor complaints to various supervisors over the years but none was ever willing to reduced a complaint to writing and present it to the Superintendent. As a result, the Superintendent on one occasion told the faculty at Webster that he was tired of hearing complaints about Webster and for them to work out their problems at the school. The principal at smaller schools, where assistant principals or deans are not provided, is the primary as well as final, authority in the discipline of students and in particular in the administering of corporal punishment. In addition to a wooden paddle or two, Respondent had provided himself with a leather strap which he also used to administer corporal punishment. The strap used by Respondent was admitted into evidence as Exhibit 20. At the time it was used, a metal slat was inserted between the two pieces of leather comprising the strap to provide additional stiffness. The addition of this metal slat did not make the strap a more sinister punishment tool. Straps similar to Exhibit 20 are sold in tack shops and are called bats. They are approximately 18 inches long and are comprised of two pieces of leather one-eight inch thick, sewed together. The bat is about one inch wide through the first foot of its length and then flares out to two inches wide at the end. The two pieces of leather at the flared end are not sewn and they clap together making a louder noise when something is struck with the bat than would occur with only a single piece of leather. It is this flared part of the bat that contacts the backside of a pupil who is administered corporal punishment. This strap or bat will cause less injury to a student than a wooden paddle if each is used with the same degree of force. While the immediate sting from the bat may be as great as the sting from a paddle, the former is much less likely to bruise a child than is the paddle. Some of the implications of the material allegations, as well as the opinions of some witnesses, are that the use of a leather strap for administering corporal punishment is itself cruel and unusual. So long as corporal punishment is authorized, these implications and opinions are without foundation. The material allegations preferred against Respondent will be discussed in chronological order. It is to be noted that the two earliest incidents were familiar to many people at the time they occurred, but no action was taken until 1978. Material Allegation 3 alleges that on or about March 1, 1972 at 8:30 a.m. Larry James, a ten-year old black student at Webster, received an eye injury resulting in the loss of sight in the injured eye when a nail he was attempting to drive was deflected by the hammer and became impaled in his right eye. James was attempting to repair a loose leg on a chair which his teacher had told him to get the custodian to fix. While the teacher was out of the room, James attempted to repair the chair and the accident ensued. James pulled the nail from his eye and ran to the bathroom. His teacher, Mrs. Batten, took him to the office. Respondent was not at school on March 1, 1972 and did not see James until after James returned to school several days later. Petitioner presented five witnesses, including James, the doctor who treated him, his mother, and Mr. and Mrs. Donahue, who were teachers at Webster to whom James was taken by the teacher, Mrs. Batte. None of these witnesses saw Respondent on the day of the accident. James was not sent to a doctor and spent most of the day in Mrs. Donahue's class until the school bus took him home, presumably after 2:45 p.m. His mother testified she had James taken to a doctor that day, which she identified as 2 March, two days after her youngest child was born on 28 February 1972. 1972 was a leap year and February that year contained 29 days. James was referred to the hospital in Ocala by his family doctor, Dr. Wiley. The medical records show James was admitted at 3:56 p.m. on March 2, 1972. It is doubtful James could have reached home on the bus before 3:15 p.m. or reached Dr. Wiley's office before 4:00 p.m. The only time and date certain was the date and time admission to the hospital. The parties stipulated that school records would show Larry James was absent from school on March 2, 3 and 4, 1972. Accordingly, the accident obviously occurred March 1, 1972. The evidence was undisputed that on March 1, 1972, Respondent Foote was in Leesburg attending the closing on the residence he was purchasing. Respondent's testimony to this effect was corroborated by the bank closing officer and documents executed at closing (Exhibit 43). Respondent testified that he first learned of James' injury the following day when he returned to school. Material Allegation 11 alleges that in school year 1971-72 or 1972-73 Respondent struck Louise Weddell, a student, in the face knocking her to the ground. The date of the incident was not established with any degree of certainty. Louise Weddell, now 20 years old, testified that she was 15 and in the seventh grade when the incident occurred. According to Louise, she was fighting with another girl outside the building when Respondent came out with a paddle in his hand to break up the fight. Louise testified that Respondent slapped her with his left hand, knocking her to the ground; that she got up, called him a black mother fucker and ran away. She denied spitting in Respondent's face. For running away she was suspended for 10 days. Several witnesses observed the incident. All except Respondent testified to the slapping and one saw Foote wipe his face with his handkerchief after Louise ran away. Respondent's testimony was that while he was stopping the fight Louise called him the name and spit in his face. He admitted only "pushing" her in the face with his left hand. Material Allegation 10 alleges that during the 1974-75 school year Respondent paddled Gralyn Dorsy numerous times on the buttocks, legs, sides and hips while calling him "a sorry nigger on food stamps and welfare." The evidence is undisputed that Respondent paddled Dorsey several times during that school year (Exhibit 45). The incident leading to the allegation occurred on March 3 1975 when Dorsey was brought to Foote by Mrs. Jones for a discipline problem she did not know how to handle. It appears that the previous day while Foote was away from school Dorsey had committed some vulgar act, the nature of which was not disclosed at the hearing, with another boy in the bathroom. Mrs. Jones expected Respondent to counsel Dorsey. Instead, Dorsey was given a paddling. Mrs. Jones does not remember if James Constable was also present. She testified that she counted 13 licks. Exhibit 45, the paddle list, shows 5 licks given to Dorsey. James Constable testified he also observed the paddling of Dorsey and that after Dorsey had been given 2 or 3 hard licks he started to get up. Respondent pushed him back over the chair saying "I'm not through with you, boy", appeared to lose control and began flailing away while calling Dorsey a sorry nigger on food stamps and welfare. According to Constable, Dorsey received 12 or 13 licks and, while squirming around, some of the blow landed on the side of Dorsey's hip and one landed on his hand. Mrs. Jones was upset over the severity of the paddling. Neither she nor Constable made a complaint until after May, 1978. The school secretary, Doris Brank, whose desk was just outside Foote's office, recalls two paddlings of Dorsey, one at which he was given 3 licks. She never heard Respondent make racial slurs to children while disciplining them. Material Allegation 2 alleges that in the spring of 1976 Herbert Brown, a student, injured his ankle on the playground before school and Respondent wouldn't allow Mrs. Miriam Jones, his teacher, to take him home or to the doctor but required he remain in school. On 2 February 1976 Herbert Brown, a twelve-year old black student, injured his ankle while playing before school. Mrs. Jones took roll call in Herbert's room and learned his ankle was hurting him. She took him to Respondent and asked permission to take him home. Respondent examined the ankle, saw it was slightly swollen and had his secretary, Mrs. Branch, call the phone number on Herbert's records. No answer was received. Respondent refused Mrs. Jones' request to take Herbert home. The ankle continued to swell. Mrs. Branch also called the doctor, whose office was closed. When school was out, Mrs. Jones drove Herbert home. His mother took him to Dr. Lehrer, who examined Herbert's ankle in the emergency room at the hospital and diagnosed the injury as a sprain. No medication was prescribed, as the pain did not appear sufficient to warrant treatment. The doctor has no independent recollection of the incident but, because he prescribed no medication, would assume the sprain was not severe. Material Allegation 9 alleges that on or about January 6, 1977 Respondent paddled Greg Christian while stating that people in the "subs" did not tell "this white man" what to do. When taken to Respondent for disciplining by his teacher, Molly Jo Teters, Greg told Respondent his brothers said Foote was not to paddle him any more and to run home if he did. Mrs. Teters testified that Respondent, while paddling Greg, told him "people in the subs don't tell this white man what to do." Greg's testimony was that following his remarks about Foote not paddling him, Foote held up a clenched fist saying, "This is black power", covered it with his right hand and said, "This is white supremacy." Daniel Lee Christian, Greg's father, recalled Greg telling him of the paddling and of Foote's gestures and remarks about white power over black power. Foote denied all allegations of using racial slurs to students while disciplining them or otherwise. Material allegation 7 alleges that on May 13, 1977 Respondent paddled Joanne Williams with a leather strap, hitting her on her bottom and later on the front of her body as she turned; and that, during the paddling called her a nigger and made comments about welfare, free lunches and food stamps. Mrs. Simpson, Joanne's teacher, took Joanne to Foote for discipline because she had stolen money from another student, spent it and failed to repay the money as directed by Mrs. Simpson. Foote had her bend over a chair and paddled her with the leather strap. After the first blow, Mrs. Simpson testified Joanne turned over and Foote continued to strike her on the front portion of her body while appearing to lose control. During this time, Mrs. Simpson testified, he said Joanne's family was on food stamps, free lunches and had everything given to them and when not given, they stole. Exhibit 45 shows 4 licks awarded to Joanne by Foote. Foote denies making the remarks and Mrs. Branch, who was immediately outside the office, heard no such remarks made. Mrs. Simpson was upset following the incident and vowed never to take another child to Foote for discipline. However, on April 25, 1978, she sent one of her students, James Jackson, to Foote for discipline after Jackson had been paddled by her and continued his misconduct. Material Allegation 8 alleges that in the fall of 1977 Respondent paddled Bobby Clemons with a leather strap and, while so doing, called him a "no-good nigger". Nancy Gridley took Bobby Clemons to Foote for authority to discipline him for being a "smart-mouth". While talking to Bobby, a ten-year old black student whose mother is a teacher at Webster, Mrs. Gridley testified Foote became angry, picked up his strap and gave Bobby three licks while yelling that Bobby was a nigger who would end up in prison if he kept getting into trouble. Bobby confirmed that he was called a nigger by Foote and told he would end up in jail if his conduct didn't improve. Mrs. Clemons was told of the incident by Mrs. Gridley and when she asked Bobby about it, he confirmed the incident. All witnesses agreed that Bobby was a discipline problem. Respondent acknowledged the paddling, denied the racial slur and testified he told Bobby he needn't expect to get away with misbehavior because his mother was a teacher. Mrs. Branch confirmed Foote's testimony. Material Allegation 6 alleges that Respondent on February 22, 1978 paddled Jeannie Barnes, a fifth grade student, with a leather strap in the library in front of students. James Constable witnessed the paddling, which consisted of three blows with the leather strap. The paddling took place in the library which was serving as the temporary office while the old offices were being renovated. Constable's testimony that a class was being held in the library at the time constituted the only testimony that classes were held in the library. Respondent recalled no other student being present when this punishment was administered. Material Allegation 5 was that during February or March, 1978, Respondent paddled one of the Roper twins in the workroom of the library without an adult witness present, striking the student on the sides, back and legs. Mrs. Newell testified she came into the room while Respondent was paddling Landis Roper with a paddle. Landis was lying on the floor, Foote had hold of his wrist and blows were landing on back, legs and arm. She also testified that Roper was screaming his head off and threatening to kill himself if Foote didn't stop. As Mrs. Newell walked in, Mrs. Stevens and Mrs. Hodges were exiting the room. Mrs. Newell is the only witness to testify the other Roper twin was also present. Mrs. Newell took Landis outside after the paddling. Mrs. Stevens was in the library when Foote came in, got his paddle and paddled Roper. She was in the room while the paddling was going on but didn't watch. She was upset because so many licks (about 10) were given to a special education child. Mrs. Hodges did not testify that she was in the library at any time during the Roper incident. Both Respondent and Mrs. Branch recalled the paddling of Roper and that three licks were given. Landis had been reported for fighting in the cafeteria that morning by Mrs. Carter, whose glasses he had accidentally knocked off while swinging at his opponent. Mrs. Carter inquired later if Mr. Foote had seen Landis and was advised no. After lunch Foote sent for Landis, and after talking to him a short while started to paddle Roper. When several children appeared in the hall, Foote then took Roper into the workroom, leaving the door open while the paddling took place. Mrs. Branch testified no other child was present. Foote's testimony was that he gave Roper three licks with the paddle just inside the workroom door and that no other child was present. Material Allegation 4 alleges that on May 16, 1978 Respondent administered corporal punishment to Kenny Robertson with a leather strap without an adult witness present. Kenny Robertson testified that he was paddled with a leather strap by Foote for fighting, that nobody else was in the room, and that Mrs. Branch was at her desk just outside the door. Molly Jo Teters testified she was in outer office, did not see Mrs. Branch, but heard Foote yell at Kenny that he was not to pull girls off bars and to keep his shirt tucked in. Shortly after the last blow she walked by the door, saw Foote returning the strap to his desk and saw only Foote and Robertson. Mrs. Sellers had bus duty May 16, 1978 and saw a boy whose name she didn't know push a girl off the monkey bars. She took him to Foote and observed the paddling. Mrs. Branch testified that Mrs. Sellers brought Kenny Robertson to Foote because of some problem on the playground and that both she and Mrs. Sellers witnessed the paddling given Robertson. Mrs. Branch didn't see Mrs. Teters in the office at that time. Material Allegation 12 alleges that in May 1978 Respondent paddled Ronald Hise, using excessive force, in the lunchroom in front of second and third grade classes. Frances Simpson witnessed Foote paddle Ronnie Hise in the lunch room in May 1978 after a teacher had told Foote Ronnie was misbehaving in the lunch line. Foote picked up his paddle, pulled Ronnie out of the line and gave him three "hard" licks. Theresa Lee, another teacher, also witnessed the Hise paddling. Her version was that another teacher brought Ronald to Foote for discipline because he misbehaved in the lunch line and Foote paddled him there. She thought the blows "too severe" for the "very thin, pale child." Foote acknowledged that from time to time he has paddled children in the lunchroom because he found that this procedure often had a therapeutic effect in calming down a noisy lunchroom. Material Allegation 1 alleges that in May 1978 Herschell Bellamy seriously injured his eye during physical education in the afternoon, that his mother was notified and was coming to pick him up, but Respondent instructed he be put on the school bus to go home at the end of the day. Herschell Bellamy fell on the monkey bars near the end of his physical ed period and cut his eyelid. His P.E. teacher, James Constable, took him to his office, cleaned and bandaged the eye using a large eye patch. Constable then went to the office with Herschell, who remained there, got Herschell's folder and called the phone number there listed for emergencies, which phone belonged to the next-door neighbor. The neighbor advised that she would tell Herschell's mother to come for him. The neighbor later called back to the school office to advise that Herschell's mother was enroute to pick him up. James Constable, Patricia Newell, and Dorothy Stevens all testified that shortly before time for the buses to leave they were in the office with Herschell Bellamy and Foote, from his inner office, asked what the commotion was about. Someone advised him that Bellamy had hurt his eye. Foote then asked if he was white or black and when told Herschell was black, said "Put him on the bus". Foote's testimony, corroborated by Mrs. Branch, was that he returned to school from a meeting in the county office just at the bell was ringing to end the school day. As he entered the building he passed a lady taking a small boy with a bandage over his eye out of the building. He denied making any comment regarding Herschell's race. Herschell and his mother both testified. When Herschell fell on the monkey bar and hurt his eye, Coach Constable put a bandage on it and took him to the office where he waited a long time before his mother came to pick him up. He didn't hear Mr. Foote say anything but testified Foote was in the office when his mother came to pick him up. Herschell's mother testified she came to school in response to the message that her son had been hurt and that she arrived just as the children were about ready to get on the bus to go home. She saw Foote, but he said nothing to her or look at Herschell. She took Herschell to Dr. Wiley, who treated Herschell for a lacerated upper eyelid, a minor injury. Wayne Ham, a supervisor in the Sumter County school system, acknowledged that he had received complaints from Mrs. Simpson, Mrs. Jones and Mrs. Teter regarding Foote's use of the leather strap to discipline children. They considered use of the strap constituted too severe punishment. Ham doesn't recall if he passed these complaints to his superior. He denied telling Mrs. Teter not to show to anyone a written complaint she had prepared. Bernard Shelnutt, the other Sumter County supervisor, who functions similar to Ham, had never heard a complaint against Foote of brutality, failure to get medical attention for children, or use of racial slurs. In addition to denying the allegations preferred against him, Respondent presented numerous witnesses who testified to Foote's good reputation in the community, to their satisfaction with the job Foote was doing as principal, to Foote's administrative capabilities, and to lack of knowledge of any irregularities at Webster until the charges here considered were published in the newspaper. Two principals of Orange County schools, for whom Respondent had worked before coming to Webster, attested to his capability and competence as well as to their conclusion that the job of principal is the most difficult in the field of education. The principal is the one primarily responsible for the discipline in the school and the manner in which punishment is administered. Corporal punishment policy is usually left to the sound judgment of the principal at each school, subject however to statutory restrictions, and prescribed school board policies. None of the four elected Sumter County school board members who testified on behalf of Respondent had ever received any complaints against Respondent, prior to the investigation by the PPC, involving medical neglect, severe punishment or racial slurs, nor had complaints been received from the black community. They considered Respondent a good administrator with a good reputation. The only complaints they had received involved minor administrative matters such as school bus schedules, and teacher complaints that Respondent worked them too hard. Several witnesses for Petitioner admitted that they were not happy with Respondent's requirement that all teachers attend PTA meetings unless they had a good excuse for being unable to do so. Eighteen teachers, former teachers, substitute teachers, and speech clinician called by Respondent had never seen or heard Respondent medically neglect, abuse, or use racial slurs to students at Webster. Most, if not all of these witnesses, had never hear of the complaints against Respondent before reading them in the newspapers shortly before the fir trial. The chiefs of police of Webster and Center Hill attested to Respondent's good reputation in their communities and that they had never received a complaint that Respondent had abused a student. Five parents whose children now attend or had attended Webster testified that Respondent had provided proper treatment to their children, their children had never complained of medical or physical mistreatment or abuse by Respondent, and that when children had been neglected by other teachers a call to Respondent corrected the situation. Two employees, other than Mrs. Branch, who had worked at Webster for many years had never seen or heard Respondent medically neglect, physically abuse, or direct racial slurs towards children at Webster. They first became aware of complaints when they read in the news that charges had been preferred against Respondent. No direct testimony was presented that the misconduct here alleged to have been committed by Respondent seriously reduced his effectiveness in the school system. It is perhaps significant that approximately one week in May 1978 (May 8- 16) provided one-third of the twelve material allegations preferred against Respondent. Coincidentally, Respondent's letter recommending James Constable for dismissal was dated 8 May 1978 and the letter to the PPC signed by eleven teachers was dated May 15, 1978. It is further noted that two of the material allegations involve incidents occurring 6 or 7 years ago.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to this proceeding, Respondent was employed with Petitioner as an exceptional student education ("ESE") teacher at Silver Ridge Elementary School in Broward County, Florida. The Events Giving Rise to this Proceeding Respondent has extensive educational training and experience in working with disabled and special needs students for many years. Respondent worked in the school system in Long Island, New York, as a paraprofessional for an estimated 13 to 14 years. Her duties included working with exceptional students at a cerebral palsy center, where she assisted teachers in changing students' diapers, feeding them, and assisting them in using various types of adaptive equipment. She also taught and tested special needs students having physical disabilities but possessing greater cognitive awareness. At the encouragement of teachers with whom she worked, Respondent pursued and received her bachelor's degree in elementary education in 1999, while continuing to work as a paraprofessional in the school system. Thereafter, she pursued her master's degree while working as a substitute teacher during the school year and as a teacher for summer school during the summer months. Respondent received her master's degree in special education in 2003. Respondent began working as an ESE teacher at Silver Ridge Elementary School in 2003, shortly after she moved to Florida. The allegations giving rise to this proceeding span the 2011-2012 and 2012-2013 school years. During both school years, Respondent's ESE students were disabled and most of them were nonverbal. Petitioner alleges that during both school years, Respondent engaged in physically and verbally aggressive and abusive actions toward students in her classroom in violation of Department of Education rules and Petitioner's policies. The 2011-2012 School Year Background Starting in August of the 2011-2012 school year, paraprofessionals Rostande Cherelus and Cara Yontz were assigned to assist in Respondent's classroom. Cherelus and Yontz both testified that they had a good working relationship with Respondent. However, this testimony is belied by the credible, persuasive evidence establishing that Respondent did not enjoy a smooth working relationship with either of them. The persuasive evidence establishes that the difficulties in Respondent's relationship with both paraprofessionals stemmed from their frequent tardiness, leaving the classroom during instructional time without Respondent's permission, and frequent use of their cell phones in the classroom during instructional time. Respondent let them know on many occasions that this behavior was not acceptable. The persuasive evidence further establishes that neither paraprofessional was particularly cooperative in assisting Respondent in the classroom. For example, when Respondent attempted to engage the participatory-level students in the various learning activities class, the paraprofessionals ——particularly Cherelus——would often respond with what Respondent characterized as "huffing and puffing," rolling of the eyes, crossed arms, and comments questioning the utility of engaging in activities to educate the students because "that kid can't do anything anyway." Respondent credibly testified that when admonished, Cherelus would make statements such as "thank God, God didn't give me a kid like that." Respondent consistently reported the ongoing problems with Cherelus and Yontz to then-Principal Marion Gundling and then-Assistant Principal Saemone Hollingsworth. However, it appears that this effort was in vain. By November 7, 2011, the situation in Respondent's classroom had deteriorated to the point that Respondent requested a meeting with Gundling and Hollingsworth to address the continuing problems with the paraprofessionals. After the November 7, 2011, the situation in Respondent's classroom did not improve. Respondent testified, credibly, that both paraprofessionals continued to be difficult to work with, that there was constant friction in the classroom, and that both paraprofessionals were aware of her lack of satisfaction with their behavior and job performance. They also knew that she communicated her dissatisfaction to the school administration. On December 1, 2011——notably, before Cherelus and Yontz alleged student abuse by Respondent1/——Respondent contacted Gundling and Hollingsworth by electronic mail ("email"), stating "[m]y classroom is an absolute disaster since our meeting." The email described in great detail2/ events, actions by the paraprofessionals, the dysfunctional atmosphere in Respondent's classroom arising from the paraprofessionals' behavior and poor job performance, and Respondent's continued dissatisfaction with them. On December 15, 2011, Yontz filed a written statement with the school administration alleging that Respondent had taken abusive actions toward students D.N. and J.M. Yontz's statement alleged that in October of that year, Respondent had become angry with D.N., screamed at her, and grabbed her hair from behind. The statement also alleged that in October of that year,3/ Respondent punished student J.M. by confining her to the classroom bathroom from 8:30 a.m. to 1:45 p.m. The statement further alleged that on December 15, 2011, Respondent had become angry with and screamed at student J.M., pushed her face, and attempted to secure J.M's glasses, which were too large for her face, with a rubber band. According to Yontz's statement, Respondent pulled J.M.'s hair, causing her to make noises indicating that she was in pain. Cherelus filed a written statement with the school administration on December 16, 2011, stating that when she had returned from break the previous day, J.M. was upset. According to Cherelus' statement, when she asked J.M. what was wrong, J.M. said "Ms. T. pull" and made a pulling motion while pointing to her glasses. On December 16, 2011, Respondent was removed from her classroom pending an investigation of the allegations against her made by Yontz and Cherelus. Ultimately, the investigation yielded insufficient evidence to support Yontz's and Cherelus' allegations and Petitioner took no disciplinary action against Respondent at that time. She was returned to her classroom in April 2012. Notwithstanding that the investigation absolved Respondent, Petitioner now seeks to take disciplinary action based on these accusations. Allegations in Amended Administrative Complaint In Petitioner's Amended Administrative Complaint filed in this proceeding on April 1, 2014, Petitioner alleges that during the 2011-2012 school year, Respondent engaged in physically and verbally aggressive and abusive acts toward students D.N., J.M., A.S., and C.A., who were assigned to her class. Each of these allegations is addressed below.4/ Student D.N. Petitioner alleges, in paragraph 5. of the Amended Administrative Complaint, that in October 2011, Respondent screamed at student D.N. for being unable to complete her work and pulled her hair. At the final hearing, Cherelus and Yontz both testified that one day in the classroom, Respondent grabbed D.N. by her ponytail. However, their testimony is inconsistent regarding key details and circumstances. Cherelus testified that Respondent grabbed D.N. and pulled her up from her chair because she had asked D.N. to get up and go get her classwork, and D.N. did not do so. Cherelus testified that Respondent said something to the effect of "[l]et's go, you don't want to do your work" and pulled D.N. up from her chair by her ponytail, causing D.N. to fall on the floor. Cherelus testified that D.N. screamed and Respondent let her go. Cherelus further testified that Respondent did not scream at D.N. Yontz, on the other hand, testified that Respondent screamed at D.N. because she was not focusing on the classwork in front of her on her desk. Yontz testified that at one point, Respondent grabbed D.N. by the back of the neck and forcefully held her head to keep her facing downward. Yontz testified that Respondent then grabbed and tugged D.N.'s ponytail and pulled her head backward to force her to look at her work. The inconsistencies between the Cherelus' and Yontz's testimony are significant. Cherelus described a situation in which Respondent jerked D.N.'s ponytail to make her get up from her desk, and that as a result, D.N. fell to the floor. However, Yontz described a situation in which D.N. remained seated and Respondent jerked her head backward by her ponytail to make her focus on the work on her desk.5/ Additionally, Yontz testified that Respondent screamed at D.N., while Cherelus specifically stated that she did not scream. Yontz testified that Respondent grabbed the back of D.N.'s neck, while Cherelus did not testify to that effect. Testimony regarding key details and circumstances surrounding the incident is vital to determining credibility in a case such as this, where the witnesses for both parties have differing accounts of the events at issue. Here, due to the inconsistencies in their testimony regarding significant details and circumstances regarding the alleged incident, the undersigned finds neither Cherelus' nor Yontz's testimony persuasive or credible. By contrast, Respondent provided a clear, detailed account of the incident that significantly differed from that provided by Cherelus and Yontz. On the day in question, Respondent was working with D.N., who has a movement-related disability, to direct her to focus on her work. Because of D.N.'s disability, she was easily distracted and often looked around at activity occurring on either side of her. Thus, when Respondent engaged in one-on-one instruction with D.N., she would stand behind D.N. and use a series of voice and gestural commands, verbal and gestural prompts, and physical prompts as necessary, to get D.N. to focus on her work. Pursuant to D.N.'s individual education plan ("IEP"), she had worn a weighted vest to assist her in focusing on her work, but shortly before the incident, her IEP had been amended to no longer include use of the vest, so Respondent had instead begun using physical compression on D.N.'s shoulders, with her thumbs touching the back of her neck, to assist D.N. in focusing. Respondent credibly testified that the compression was slight, not forceful. On the day in question, Respondent used the compression technique but D.N. continued to look around, so Respondent put her hands on the sides of D.N.'s face to focus her to gaze downward at her work. When Respondent removed the compression from D.N.'s shoulders, she popped backward. Respondent credibly testified that she did not pull D.N.'s hair or jerk her head backward by her ponytail. Respondent's account of the incident is credible and persuasive.6/ Further, the timing of Respondent's email communication with Gundling and Hollingsworth is significant to determining the comparative credibility of Respondent, Cherelus, and Yontz. Respondent's December 1, 2011, email to Gundling and Hollingsworth described in significant detail the events and actions that had taken place in Respondent's classroom following her November 7, 2011, meeting with them. Of particular note is Respondent's detailed description of Cherelus' actions on December 1, 2011, toward student D.N.——specifically, that Cherelus pulled D.N's hair and screamed at her. Respondent's email account of that incident, sent on the same day it was alleged to have occurred and describing it in substantial detail, is far more persuasive than both Cherelus' or Yontz's subsequent statements and hearing testimony regarding the incident. The credible, persuasive evidence leads to the inference that as a result of the paraprofessionals' poor relationship with Respondent, they accused her——after she had reported their poor performance——of the very conduct toward student D.N. that Respondent previously reported that Cherelus had committed. This is a far more reasonable inference than the version of events that Petitioner espouses——which would require the undersigned to infer that Respondent somehow knew that she was going to be accused, at a later date, of pulling D.N.'s hair and screaming at her, so she covered herself by preparing and sending the December 1, 2011, email accusing Cherelus of engaging in that same conduct. For these reasons, the undersigned finds the testimony of Cherelus and Yontz regarding the alleged incident involving D.N. incredible and unpersuasive. Conversely, the undersigned finds Respondent's testimony regarding D.N. credible and persuasive. Accordingly, Petitioner failed to prove the allegations in paragraph 5. of the Amended Administrative Complaint regarding student D.N. Student J.M. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that in October 2011, Respondent confined student J.M. to the classroom restroom from 8:30 a.m. to 1:45 p.m. as punishment for urinating in her pants. Petitioner's direct evidence to support this allegation primarily consisted of Yontz's testimony.7/ According to Yontz, J.M. came to school one morning after having wet her pants the previous day, and Respondent immediately placed her in the classroom restroom, with the door closed, to punish her.8/ Yontz testified that Respondent left J.M. in the restroom by herself with the door closed beginning at 8:30 a.m. until 1:45 p.m., only being allowed to leave the restroom for lunch in the cafeteria. Yontz also testified that because J.M. was confined to Respondent's classroom restroom all day, the other students in Respondent's class had to use the restroom in other classrooms. Cherelus did not testify regarding this alleged incident.9/ Respondent's clear, credible explanation of this incident differed sharply from that provided by Yontz. Because J.M. frequently would urinate in her pants, her mother would send multiple sets of clothing to school so that Respondent could change J.M.'s clothes when this happened. J.M. had urinated on herself the previous day and had gone through her last set of clothing that day, so Respondent sent a note home to J.M.'s mother asking her to send a fresh set of clothing to school the following day. However, when J.M. arrived at school the next day, she had urinated in her pants and her mother had not sent extra clothing. Respondent changed J.M. into a borrowed set of D.N.'s clothing. J.M. again urinated in her pants and at that point, there was no extra clothing in the classroom for J.M. to wear. Respondent sent Cherelus to the school clinic to see if there was extra clothing that J.M. could wear and she also contacted J.M.'s mother to bring clothing to school for J.M. During the time it took for Cherelus to go to the clinic and return with clothing for J.M. to change into, Respondent put J.M. in the restroom. Respondent could not recall the exact amount of time that J.M. was confined to the restroom, but estimated that it was a short amount of time. She credibly testified that J.M. did not spend the entire day confined to the restroom, and that J.M. was not placed in the restroom as punishment, but, rather, to await a change of clothing. J.M.'s mother, Shakima Brown, verified Respondent's account of the incident. Brown testified that Respondent called her on the day in question to request that she bring a change of clothes to the school. Brown lived only ten minutes away, and she directed Respondent to place J.M. in the restroom until she could bring the extra clothing to the school. Brown testified, credibly, that J.M. had never communicated to her that Respondent confined her to the restroom as punishment, and that had that happened, J.M. would have let her know. The credible, persuasive evidence supports Respondent's account of this incident. The undersigned finds Yontz's account of this incident incredible and unpersuasive. Petitioner also alleges, in paragraph 6. of the Amended Administrative Complaint, that on December 15, 2011, Respondent verbally abused J.M., slapped her face, and popped her with a rubber band that she had tied to J.M.'s glasses in an effort to keep them on her face. Yontz is the only witness whose testimony Petitioner presented who claimed to have actually seen the incident. Yontz testified that on the day in question, J.M. was attempting to write her name but was unable to do so without making mistakes. According to Yontz, this annoyed Respondent, who screamed at J.M. Yontz testified that J.M.'s glasses kept falling off, so Respondent tied a rubber band on the ends of them to keep them from falling off. However, the rubber band was too tight so kept popping J.M.'s ear, causing her to make noises as if she were in pain. According to Yontz, Respondent pushed J.M.'s face and screamed at her "oh, you're so annoying, you freaking idiot." Yontz testified that Respondent did not slap J.M.'s face.10/ Cherelus' also testified regarding this incident. She testified that on that day, she took J.M. to another classroom, and that as she was doing so, J.M. cried. Cherelus testified that when she asked J.M. what was wrong, J.M. said "Ms. T slapped me" and gestured in a manner that Cherelus interpreted as showing that Respondent had slapped J.M.11/ On cross examination, Cherelus acknowledged that she did not see Respondent slap J.M., pull her hair, or otherwise hurt her. Cherelus further acknowledged that J.M. is largely nonverbal and incapable of articulating sentences, and that she only said "Ms. T." while making a pulling motion. In any event, Cherelus did not have personal, independent knowledge of this alleged incident, and her testimony was based on J.M.'s limited statement and gesture. Maureen McLaughlin, the child abuse designee for Silver Ridge Elementary School, also testified regarding this alleged incident. McLaughlin testified that Yontz brought J.M. to her office,12/ and that at Yontz's prompting, J.M., using a teddy bear, indicated that Respondent had pushed her head using an open hand. McLaughlin testified: [a]nd basically, it's hard to enact, but J. took her hand, sort of open like this, and what I remember is that her head turned, like, she turned her head. So it was hard to tell, like, is it a slap, is it a push, but it was an open hand and her head ended up being turned because of it. McLaughlin reported the incident to the abuse hotline.13/ Respondent provided a credible, persuasive explanation of the incident. She testified that J.M. previously had a pair of glasses that did not fit her and had used a teal elastic band to hold them on her face. At some point, J.M. lost both the elastic band and her glasses, so Respondent contacted J.M.'s mother regarding getting another pair of glasses for J.M.; however, J.M.'s mother told her that they could not afford to purchase another pair of glasses. Respondent gave J.M.'s mother a pair of glasses frames that had belonged to her daughter, and J.M.'s mother had the frames fitted with J.M.'s prescription. However, those glasses also did not fit J.M.'s face and fell off when she looked down. On the day in question, Respondent tried, unsuccessfully, to tie the glasses on J.M.'s face using a large rubber band. The rubber band popped, causing J.M. to make a sound. Respondent apologized, tried one more time to tie the glasses on J.M.'s face using the rubber band, then gave up. Respondent testified that while she was attempting to tie the glasses on J.M.'s face, J.M. was moving around, so Respondent had J.M. put her head down on the desk. J.M. was hearing-impaired and had put her head down on the side on which her functioning ear was located, so Respondent used her open hand to turn J.M.'s head to the other side. Respondent credibly testified that she did not slap J.M., scream at her, or pull her hair. J.M.'s mother, Shakima Brown, testified that she had been informed of the incident concerning J.M.'s glasses and that on her own, over a period of days, had asked J.M. several times if anyone had hit her. Brown testified, credibly, that J.M. said "no" every time she was asked.14/ The credible, persuasive evidence establishes that Respondent did not scream at J.M., did not slap her face, and did not intentionally hurt her by popping her ear with a rubber band. Accordingly, Petitioner failed to prove the allegations in paragraph 6. of the Amended Administrative Complaint. Student A.S. In paragraph 5. of the Amended Administrative Complaint, Petitioner alleges that Respondent handled A.S. in a physically rough manner, causing him to sustain a scratch on his neck. Cherelus testified that she did not recall any incident involving a student named "A.," and she could not recall his last name. Yontz testified that one day, she took the children out for recess, and as they were leaving, A. was in the room with Respondent. A. subsequently came outside and was crying, and Yontz observed scratch marks on A.'s neck. Yontz testified that she had asked what had happened, and Respondent told her that A. had scratched his neck on the corner of the counter as he put trash in the trash can. Neither Yontz nor Cherelus saw Respondent scratch A., and Petitioner presented no other evidence showing that Respondent scratched A. The sum of Petitioner's evidence regarding this allegation is that A. was scratched while in the classroom with Respondent. There is absolutely no competent substantial evidence in the record showing that Respondent scratched A. Additionally, neither Yontz nor Cherelus, or any other witness, specifically identified "A." as the student "A.S." named in paragraph 5. of the Amended Administrative Complaint. Thus, Petitioner failed to present any competent substantial evidence linking the testimony about "A." to any allegations in the Amended Administrative Complaint. Accordingly, Petitioner failed to prove the allegations set forth in paragraph 5. of the Amended Administrative Complaint involving student A.S. Student C.A. Petitioner alleges, in paragraph 7. of the Amended Administrative Complaint, that C.A. went home with scratches on his neck and face over a three-day period, and that when Respondent was questioned, she claimed that C.A. "had an encounter with a tree." Presumably, paragraph 7. is intended to charge Respondent with scratching C.A. and then lying about it. However, this paragraph does not expressly allege that Respondent scratched C.A. or otherwise injured C.A., so fails to allege that Respondent engaged in conduct that, if proven, would violate Petitioner's policies or Department of Education rules. Further, to the extent paragraph 7. could be read to sufficiently allege that Respondent scratched or otherwise injured C.A., there was no testimony presented at the final hearing by anyone having personal knowledge of the alleged incident. Thus, Petitioner failed to present any competent substantial evidence supporting this allegation.15/ Thus, Petitioner failed to prove the allegation involving student C.A. set forth in paragraph 7. of the Amended Administrative Complaint. The 2012-2013 School Year Background Petitioner alleges in the Amended Administrative Complaint that during the 2012-2013 school year, Respondent again engaged in physically and verbally abusive acts toward students assigned to her class. Paraprofessionals Shirley Brown and Monica Jobes were assigned to assist in Respondent's classroom in the 2012-2013 school year. That year, approximately nine ESE students were assigned to Respondent's classroom. The credible, persuasive evidence made abundantly clear that neither Brown nor Jobes enjoyed a smooth working relationship with Respondent. This was, in large measure, due to the fact that Respondent had high expectations regarding their performance in assisting her in the classroom, and she consistently reminded Brown and Jobes of those expectations.16/ In particular, Respondent made clear that her——and, by extension, the paraprofessionals'——job entailed taking reasonable and necessary measures to work with students to help them achieve to their capabilities. Respondent testified, persuasively, that neither Brown nor Jobes were dedicated to this approach and instead viewed their jobs more as caretakers or "babysitters" of the students for the school day. Respondent frequently made clear to Brown and Jobes that as the teacher, she was in charge of the class and the instructional approach and all other activities and aspects of classroom management. It was apparent from the credible, persuasive evidence that Brown and Jobes resented Respondent's repeated, overt assertion of authority over them. The persuasive evidence establishes that Brown was as much as a half-hour late to Respondent's class nearly every day, and that Respondent also regularly had to admonish her about frequent use of her cell phone for personal matters during instructional time. Brown also frequently disregarded Respondent's instructions on a range of student-related matters, and when Respondent confronted her, Brown verbally lashed out.17/ The persuasive evidence also establishes that Jobes often sent and received personal text messages during instructional time, causing her to be distracted and interfering with her work. The persuasive evidence established that Brown's and Jobes' behaviors were disruptive to the classroom environment and, in some instances, posed a danger to the students, and that Respondent let them know that their behavior was unacceptable. Shortly before the holiday vacation in December 2012, a holiday celebration was held in Respondent's classroom. While Respondent tended to the other students in the class and their parents, she specifically asked Brown and Jobes to stay with and tend to student C.R., since he did not have a parent present at the celebration. At some point, both paraprofessionals left C.R. alone. While unattended, C.R. ingested something to which he was allergic, went into anaphylactic shock, and ultimately had to be transported to the hospital. In early January 2013, shortly after school commenced following the holiday vacation, Respondent's students went to the music teacher's classroom. Brown was going to place C.R. on the floor, notwithstanding that Respondent had specifically directed her not to do so because he might again ingest something that could make him ill. At that point, Respondent told Brown not to place C.R. on the floor, to which Brown responded "don't worry, I got this" or something to that effect. Respondent tersely admonished Brown and reminded her that it was her (Respondent's) call because she was the teacher.18/ It was apparent from Brown's testimony that she greatly resented Respondent's assertion of authority over her. To address Brown's ongoing behavior and performance issues, Respondent requested a meeting on January 9, 2015, with Principal Hollingsworth, Assistant Principal Long, and ESE Supervisor Vickie Bloome. At the meeting, Hollingsworth informed Brown that Respondent had complained to her about her (Brown's) repeated cell phone use during classroom instructional time and directed her to refrain from using her cell phone during that time. Notwithstanding this meeting, nothing changed in Respondent's classroom. Respondent continued to experience friction in working with the paraprofessionals, who knew that Respondent had complained to the school administration about their performance. On January 16, 2013, an incident involving C.R., discussed in detail below, occurred. During this incident, C.R. became very aggressive, fought, bit and scratched himself, and grabbed for Respondent's insulin pump, which she wore on her arm. As discussed in greater detail below, Respondent and C.R. fell on the floor. Respondent prepared a written report detailing the incident. Persons who witnessed the incident, including Brown and Jobes, signed the report, and Respondent filed it with the school administration that day. On January 23, 2013, Respondent called a meeting with Jobes and Brown to address their ongoing performance issues, update them on student issues, and cover common core implementation procedures. In the email Respondent sent to Jobes and Brown regarding the meeting, she reminded them: "STILL seeing phones being checked and answered during class time. Even if a phone rings during class, it should NOT be answered until your personal time." At the meeting, Respondent once again reminded Brown and Jobes that they were not to use their cell phones during classroom instructional time. On the afternoon of January 23, 2013, following Respondent's meeting with her and Jobes, Brown reported to Assistant Principal Long an incident in which T.P. allegedly said "Ms. T. hurt me." At some point, Jobes also reported to Long that T.P. told her the same thing.19/ Jobes also sent an email to Hollingsworth that afternoon describing a situation in which T.P told her "Ms. T. hurt me." Thereafter, Long spoke with Respondent to get her version of what had happened. At some point on the evening of January 23, 2013, Respondent sent an email to Long stating that she had not been alone with T.P. that day. It was apparent from Respondent's email that she felt that could not trust Brown. She requested that Brown be removed from her classroom. Brown was removed from Respondent's classroom on the morning of January 24, 2013. At some point thereafter, Brown prepared, signed, and filed a report, dated January 23, 2013, alleging that Respondent had engaged in numerous aggressive and abusive acts toward students over a period of months. It is obvious in reading the report——which references Brown's removal from Respondent's classroom———that it was not prepared until sometime after Brown was removed from Respondent's classroom on January 24, 2015. Jobes also signed the report. She testified that Brown had prepared it and that she had contributed "notes." Brown also prepared and filed another written statement alleging that Respondent had engaged in specific instances of abusive and aggressive behavior toward students in her class. This report also was dated January 23, 2013, but again referenced her removal from Respondent's classroom, so obviously was prepared sometime after January 24, 2013. On the evening of January 24, 2013, Jobes sent an email to Hollingsworth requesting to be removed from Respondent's classroom. The email stated: "I came home today so stressed and exhausted from Ms. T all day at me." Jobes, who was pregnant, was concerned that the stress she was experiencing in working with Respondent in her classroom would adversely affect her health. On January 25, 2013, Jobes was removed from Respondent's classroom. On or about January 29, 2013, Respondent was removed from her classroom and reassigned to another position in the school system pending the outcome of an investigation conducted by the Broward County Sheriff's Office Child Protective Investigations ("CPI") Section. In a statement dated February 3, 2013, Jobes alleged that Respondent had taken aggressive and abusive actions toward certain students in her class over a period of months. She also stated that she felt bullied because Respondent, at times, spoke to her disrespectfully, and that Respondent would "constantly remind everyone in the room that she is the boss and if they wanted to be the boss then they need to go get a 4-year degree." Notably, prior to their January 23, 2013, meeting with Respondent, neither Jobes nor Brown had ever reported that Respondent had engaged in aggressive or abusive behavior toward her students.20/ Allegations in Amended Administrative Complaint In the Amended Administrative Complaint, Petitioner alleges that Respondent engaged in physically and verbally aggressive and abusive behavior toward specific students in her class. Each of these allegations is addressed below. Student M.M. In paragraph 9. of the Amended Administrative Complaint, Petitioner alleges that Respondent grabbed student M.M. by the back of her neck, held her head down in the garbage can to make her retrieve an open bag of chips, and forced her to eat them because she had asked for them. At the hearing, Brown and Jobes both testified that on one occasion during classroom snack time, Respondent had given M.M. a bag of chips at her request. M.M. ate a few chips, then tossed the bag in the trash can. Brown and Jobes testified that Respondent held M.M. by the back of the neck and forced her to remove the chips from the trash can. On direct examination, Jobes testified that Respondent forced M.M. to eat the chips, but on cross-examination, testified that, M.M. did not eat the chips. Brown testified that M.M. ate some of the chips but did not finish. Respondent confirmed that she did make M.M. retrieve the chips from the garbage can, but explained the context and the circumstances for making M.M. do so. She credibly denied that she had forced M.M. to eat the chips. Specifically, M.M. had been purchasing school lunches, but Jobes and Brown informed Respondent that M.M. was not eating her lunch. Respondent contacted M.M.'s mother, and collectively, Respondent and M.M.'s mother arrived at a plan in which M.M. would pick out her lunch and snack items at home. The items would be packed in her lunch box, and she would bring her lunch and snacks to school every day. M.M.'s mother also sent a large bag of snacks for M.M. that was kept in the classroom closet and M.M. would get the snack of her choice at snack time. M.M.'s mother specifically requested that Respondent send home anything that M.M. did not eat so that she (M.M.'s mother) would know what M.M. was and was not eating. On the day at issue, M.M. requested a bag of chips. Respondent gave them to her and M.M. returned to her seat, where she ate one or two chips, then threw the bag of chips away in the trash can. Respondent saw this and told M.M. to retrieve the chips from the trash can. Respondent did this so that she could send them home with M.M., consistent with the plan she had devised with M.M.'s mother. Consistent with Respondent's method of prompting M.M.'s behavior, she asked M.M. three times to remove the chips from the trash can. She then added a gestural prompt, done multiple times, that consisted of pointing to the trash can to inform M.M. exactly what she wanted her to do and where she was to go. When M.M. did not respond, Respondent took M.M. by the hand, led her to the trash can, and again gestured and asked her to remove the chips. Again, M.M. did not respond, so Respondent employed a physical prompt that consisted of placing her hand on M.M.'s shoulder and hand and applying enough pressure to show M.M. that she needed to bend down to retrieve the chips. At that point, with Respondent's help, M.M. retrieved the chips from the trash can. Respondent told M.M. to put them in her lunch box so that she could take them home, consistent with M.M.'s mother's request. Respondent credibly testified that she did not tell M.M. she had to eat the chips or force her to eat them. The evidence does not establish that M.M. cried or was distressed as a result of Respondent's actions, and there was no evidence presented to show that M.M. was injured or sickened as a result of this incident. The credible, persuasive evidence establishes that Respondent did not punish M.M. for throwing the chips away, that she did not forcefully grab M.M. by the back of the neck or hold her head down into the trash can, and that she did not force M.M. to eat the chips. The evidence instead shows that Respondent's actions in dealing with M.M. on this occasion were appropriate and were consistent with her discussions with M.M.'s mother. Petitioner did not prove the allegations in paragraph 9. of the Amended Administrative Complaint. Student T.P. In paragraph 10. of the Amended Administrative Complaint, Petitioner alleges that in December 2012, Respondent force-fed student T.P., causing him to regurgitate. The undisputed evidence establishes that T.P. often refused to eat. On the day in question, T.P. purchased lunch from the cafeteria but he refused to eat the lunch, so was brought back to the classroom, where Respondent attempted to get T.P. to eat his lunch. Brown testified that Respondent forced a piece of chicken and chicken skin into T.P.'s mouth, that he was crying hysterically, and that he gagged. Brown further testified that Respondent made a video recording of T.P. eating. Jobes, who also was present when the incident occurred, did not testify that Respondent force-fed T.P.——only that Respondent was verbally urging T.P. to eat plantains. She did not testify that T.P. gagged or regurgitated. She also testified that Respondent made a video recording of the incident. Respondent testified that T.P. was a very picky eater who did not eat well, and that he regurgitated on the way to lunch every day. She testified, credibly, that she had discussed this issue with T.P.'s parents, and they had directed her to encourage him to eat.21/ Because the sight of other students eating or the smells of food would cause T.P. to vomit, he typically ate at a small table in the cafeteria positioned so he could see the outdoors. On the day in question, the students ate lunch in the classroom. T.P. was having particular difficulty eating that day because he was situated with the entire class as they ate, making him uncomfortable. In an effort to persuade T.P. to eat, Respondent went over to him, picked up a piece of food and coaxed him to eat. T.P. regurgitated all over his food. At that point, Respondent stopped trying to persuade T.P. to eat and sent a note home to his parents describing what had happened. Respondent's version of events is credible. By contrast, the testimony of Jobes and Brown regarding this incident was inconsistent, incredible, and unpersuasive. Thus, Petitioner did not prove the allegations in paragraph 10. of the Amended Administrative Complaint. In paragraph 14. of the Amended Administrative Complaint, Petitioner alleges that on January 23, 2013, Respondent grabbed T.P. by the back of the neck and pushed him toward the door, causing him to stumble and fall to the ground and to verbalize that "Ms. T. hurt me." Jobes testified that on that day, she was in the cafeteria when Brown and T.P. entered, with T.P crying. Jobes testified that Brown told her at lunch that she (Brown) had heard some kind of altercation while she was in the classroom restroom. Jobes did not see Respondent grab, push, or take any other action toward T.P. Jobes testified that later that day, T.P. told her "Ms. T. hurt me," and held his hands in a "U" shape. Jobes interpreted that as indicating that Respondent had choked T.P. Brown testified that she actually saw Respondent grab T.P. by the back of the neck and push him toward the door, causing him to fall, and that he got up, crying, and went with Brown and the rest of the class to lunch. She testified that later in the afternoon, T.P. told her and Jobes that "Ms. T. hurt me." Specifically, she testified: I didn't understand him clearly, you know. So Ms. Jobes was on the other side. He turned, he said 'Ms. Jobes, Ms. Jobes, Ms. T. hurt me, she grabbed me like this." And I, like, what? He said 'I'm going to tell them, I'm going to tell them, Ms. Brown, that Ms. T. hurt me, you see, Ms. T. hurt me.' The undersigned finds Brown's testimony incredible and unpersuasive. First, Brown's statement that she actually saw Respondent grab and push T.P. is inconsistent with her statement made to Jobes while at lunch that same day, that she had been in the restroom at the time and had heard an altercation. Further, the evidence showed that while T.P. is somewhat verbal, he is not capable of the extended, coherent discourse that Brown claims he verbalized in telling her and Jobes that Respondent had hurt him. The undersigned also assigns no weight to Jobes' testimony regarding whether the alleged incident actually occurred. Jobes did not witness the alleged incident, so has no personal independent knowledge regarding whether it occurred. Thus, Petitioner did not prove the allegations in paragraph 14. of the Amended Administrative Complaint. Student M.P. In paragraph 11. of the Amended Administrative Complaint, Petitioner alleges that in an effort to make M.P. stop crying, Respondent jerked her chair backward to scare her to make her stop crying, and that when M.P. did not stop crying, Respondent laid the chair down on the floor so that M.P.'s feet were in the air, leaving her in that position for approximately 20 minutes. Brown and Jobes both testified that M.P. often cried and rocked back and forth in her chair. They testified that in order to make M.P. stop crying, Respondent would try to scare her by jerking the chair backward. Then, if M.P. did not stop crying, Respondent would lay her chair down on the floor so that M.P.'s feet were in the air, and she would leave M.P. in that position until she cried herself to sleep. Both Brown and Jobes testified that they had seen Respondent do this on numerous occasions. Respondent acknowledged that she had, on more than one occasion, laid M.P. down on the floor in the Rifton chair,22/ but, again, provided credible context for taking this action. Specifically, as a result of her exceptionality, M.P. would constantly verbalize and often would rock in her chair. When she became agitated, she would rock her chair so violently that she tipped the chair backward. Initially, Respondent had moved M.P.'s chair against a bookshelf, but M.P. banged her head on the bookshelf. In an effort to prevent M.P. from hurting herself, Respondent then removed M.P. from her chair and placed her on the floor; however, M.P. banged her head on the floor. At that point, Respondent placed M.P. in the Rifton chair. M.P. continued to rock violently, so Respondent ordered a Rifton chair with footrest; however, that measure did not solve the problem with M.P.'s rocking. Respondent then considered placing M.P.'s chair up against the teacher's desk, which would help stabilize the chair but had nothing against which Respondent could bang her head. On one occasion, as Respondent tipped the chair back at a 45-degree angle to place it against her desk, she noticed that M.P. calmed down and closed her eyes. Thereafter, Respondent would sometimes tip M.P.'s chair against her or her desk if she was not otherwise occupied with activities. However, when she was occupied with other activities, she would sometimes completely recline the Rifton chair, with M.P. strapped in it, on the floor. She did this because it calmed M.P., who otherwise would constantly vocalize, cry, and rock back and forth. To determine whether this was an appropriate technique, Respondent asked colleagues who also taught ESE students about their view of this technique and whether there were better techniques of which they were aware. Respondent testified, credibly, that the consensus among other ESE teachers was that if the technique worked to soothe the child and did not endanger her, it was appropriate to use. Respondent also had consulted regularly with occupational specialist Mariana Aparicio-Rodriquez regarding techniques to prevent M.P. from rocking her chair so that she would not tip her chair over and injure herself, but they had not collectively arrived at a solution to the problem. Respondent testified that she and Aparicio-Rodriquez had not specifically discussed reclining the Rifton chair on the floor with M.P. strapped in it. One day, while Respondent was alone in the classroom, Aparicio-Rodriquez entered the classroom and saw M.P. completely reclined on the floor in the Rifton chair. Initially, Aparicio- Rodriquez was alarmed that M.P. had tipped the chair over. Aparicio-Rodriquez testified that Respondent told her that she had placed M.P. on the ground to give her a sense of what it felt like to fall back. Respondent then picked up the chair and placed M.P. in an upright position. Aparicio-Rodriquez confirmed that during the entire time that she was in Respondent's classroom, M.P. was calm, unhurt, and not in distress, and that she did not cry. Aparicio-Rodriquez testified that she did not believe this was an appropriate or useful technique for teaching M.P. not to rock in her chair, and she had intended to report the incident to her supervisor, but because one of Respondent's paraprofessionals informed her that the matter was going to be reported, Aparicio-Rodriquez did not report it. Aparicio- Rodriquez testified that she did not consider the incident to constitute child abuse, so did not report it to the Department of Children and Families. On cross-examination, Aparicio-Rodriquez stated that it was her opinion, from an occupational therapist's perspective, that using the Rifton chair in such a manner was not appropriate; however, she conceded that placing M.P. on the floor in a reclined position in the Rifton chair was not unsafe, and that M.P. was neither hurt nor in imminent or potential danger. She acknowledged that she and Respondent had a difference of opinion regarding the propriety of the use of the Rifton chair in this manner.23/ Aparicio-Rodriquez did not identify any statute, rule, policy, or other applicable standard that was violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence supports the inference that Respondent's placement of M.P. in the Rifton chair in a reclined position on the floor was not intended as a disciplinary measure to frighten or punish M.P. for crying or rocking in her chair, and was appropriate under the circumstances. Respondent credibly testified that she had tried numerous measures to prevent M.P. from harming herself while rocking back and forth, and that when she inadvertently discovered this technique, she discussed it with other ESE professionals, who had suggested that she continue using it since the child was not distressed or injured and the technique worked to soothe her and prevent her from rocking back and forth and potentially injuring herself. Aparicio-Rodriquez disagreed with Respondent regarding the appropriateness of the technique, but she was neither qualified nor presented as an expert witness in appropriate teaching techniques for ESE students or in any other subject, and she did not identify any applicable professional or other standards that were violated by Respondent's use of the Rifton chair in this manner. The persuasive evidence establishes that Aparicio- Rodriquez and Respondent had a difference of opinion regarding the appropriateness of this technique; however, unlike Aparicio- Rodriquez, Respondent had actual successful experience in using this technique without harming M.P. Thus, Respondent's view regarding the appropriateness of using this technique under the circumstances is afforded greater weight than Aparicio- Rodriquez's view. Petitioner did not prove that Respondent distressed, injured or otherwise harmed M.P., placed M.P. in danger, or violated any applicable statute, rule, policy, teaching technique, or standard by placing M.P. in the Rifton chair in a reclining position. Thus, Petitioner did not prove the allegations set forth in paragraph 11. of the Amended Administrative Complaint. Petitioner also alleges that on one occasion, Respondent disciplined M.P. for crying by placing a plastic bag of ice directly on M.P.'s bare chest, and when that technique was unsuccessful, Respondent placed the bag of ice on M.P.'s back, causing her to cry more loudly. Petitioner presented the testimony of Jobes to substantiate this allegation. Jobes testified that "a couple of times," she saw Respondent place bags of ice under M.P.'s clothing on her bare skin in an effort to get M.P. to stop crying, but that M.P. would not stop crying. Petitioner did not present the testimony of any other witnesses to corroborate Jobes' testimony. Respondent flatly denied ever having placed ice on M.P. for any reason, and stated that under any circumstances, she did not know how that would have helped make M.P. stop crying. Respondent also denied having kept ice in the refrigerator in her classroom. Respondent's testimony was credible, and Jobes' testimony was not credible, regarding these allegations. Accordingly, Petitioner did not prove the allegations in paragraph 12. of the Amended Administrative Complaint. Student C.R. In paragraph 13. of the Amended Administrative Complaint, Petitioner alleges that on one occasion, Respondent removed C.R. from his wheelchair, screamed in his ear, held both hands behind his back, laid him face-down on the floor, and laid on top of him for several minutes as he gasped for air. The undisputed evidence shows that on the morning of January 16, 2013, student C.R. (also referred to as "C.J." in the final hearing testimony) arrived at school in an extremely emotionally-distressed state. Although C.R. is a small child who weighs approximately 30 pounds and is confined to a wheelchair, he becomes physically aggressive when distressed and is capable of inflicting injury on others by biting, scratching, and hitting. Upon arriving at school that day, C.R. physically struggled with school personnel, including Jobes, Brown, and Cherelus. Brown took C.R., still upset, in his wheelchair to Respondent's classroom, where he was placed in his classroom chair. C.R. attempted to grab, bite, and scratch Respondent, Jobes, and Brown, bit his own hands, and rubbed and scratched his own face, arms, and legs. Respondent left him in his chair and he eventually calmed down. At that point, Respondent removed C.R. from his chair and carried him to another classroom, where the rest of the class was engaged in instructional exercises. Thereafter, when Respondent carried C.R. back to her classroom, C.R. again became very upset and bit and scratched her. At that point, Respondent notified the school administration and C.R.'s mother of the incident involving C.R. that morning. Assistant Principal Long visited Respondent's classroom to determine what had happened. As of 11 a.m. that day, C.R. was still seated in his classroom chair aggressively biting his own hands and rubbing and scratching his face, arms, and legs.24/ Respondent prepared and submitted an incident report detailing these events, and Brown, Jobes, and Cherelus, and another school staff member, Julie Weiss, signed and dated the report that same day. Jobes testified she read the January 16, 2013, incident report before signing and dating it that same day. She stated that although she had signed the document without being under duress, she had questioned Respondent regarding its accuracy before signing it. Brown testified that she signed the January 16, 2013, incident report that day, but did not read it before she signed it. It is undisputed that at some point in the day on January 16, 2013, Respondent and C.R. ended up on the floor of Respondent's classroom, with Respondent laying on top of C.R. However, there is conflicting evidence regarding the time of day, sequence of events, and circumstances that led to this incident. Jobes and Brown both testified that the events that led to Respondent and C.R. being on the floor with Respondent laying on top of C.R. occurred in the morning after C.R. came to school in an emotionally distressed state, and that Respondent had placed C.R. on the floor and laid on top of him to punish him for his aggressive behavior. However, their testimony is contradicted by the version of events detailed in the January 16, 2013, incident report——which they both had signed and dated that same day, thus tacitly acknowledging its accuracy. As discussed in greater detail below, the credible, persuasive evidence establishes that the incident during which Respondent and C.R. ended up on the floor actually occurred later that same day, and that afterward, C.R. was taken from the classroom to the school clinic and did not return to the classroom for the rest of the day. Had Brown and Jobes been correct regarding the time of day when the incident occurred, C.R. would have been removed from the classroom during the morning. However, according to the January 16, 2013, incident report, C.R. was still in the classroom as of approximately 11 a.m. that day. Indeed, according to the incident report, Assistant Principal Long visited the classroom to investigate the events that were detailed in the report. Had C.R. been removed from the classroom in the morning after the incident, Long would have discovered that when she visited the classroom.25/ Further, Respondent would have known that so would not have stated in the written incident report that C.R. was still in the classroom as of 11 a.m. that day. It is undisputed that Jobes did not actually witness Respondent place C.R. on the floor. Jobes testified that when she looked over from another part of the classroom where she had been tending to other students, she saw C.R. face down on the floor with Respondent on top of him. Notwithstanding that by her own admission, Jobes did not witness the entire incident between Respondent and C.R., she nonetheless testified that Respondent held C.R. down on the floor for three to five minutes.26/ Brown claims to have witnessed the entire incident between Respondent and C.R. She testified that C.R. was acting aggressively, so to punish him, Respondent picked him up, flipped him around, placed him face-down on the floor, and laid on top of him for approximately 20 seconds as he gasped for breath. As noted above, the credible, persuasive evidence establishes that the allegation regarding Respondent laying on top of C.R. arose from an incident that occurred later in the day on January 16, 2013, after lunch and after the incident that had happened earlier that day. The credible evidence establishes that when C.R. returned to Respondent's classroom after having had lunch in the cafeteria under Jobes' and Brown's supervision, his face was red and he was scratching himself and squirming in his chair. Respondent became very concerned, from the previous experience that school year, that C.R. was again having an allergic reaction to something he had eaten. Respondent removed C.R. from his wheelchair in order to place him in his Rifton chair so that she could administer his epi-pen to counter any allergic reaction he might have been having. Respondent is diabetic and wears an insulin pump strapped to her left arm. Respondent testified, credibly, that as she was removing C.R. from the wheelchair, he grabbed at her insulin pump. In an effort to prevent C.R. from pulling her insulin pump off of her arm, Respondent jerked her hand and arm backward, causing her to lose her balance. She fell to the floor with C.R. and landed on top of him. Respondent estimated that she and C.R. were in that position for perhaps five seconds,27/ at which point she scrambled off of C.R. and placed him in his Rifton chair. C.R. was then taken to the clinic to address his allergic symptoms and did not return to the classroom that day. Respondent testified, credibly, that Brown did not witness the entire event because for part of it, she was in the restroom with M.P., consistent with their established routine after the students returned from lunch. The undersigned finds Jobes' and Brown's version of the incident unpersuasive and incredible.28/ Their testimony was imprecise, inconsistent, and directly contradicted by other credible evidence regarding the incident. By contrast, Respondent's testimony regarding the incident was specific, precise, and detailed. The undersigned finds her account of the incident credible and persuasive. Thus, Petitioner failed to prove the allegations in paragraph 13. of the Amended Administrative Complaint. Allegations Regarding Unspecified Students Petitioner alleges, in paragraph 8. of the Amended Administrative Complaint, that Respondent "was observed grabbing students by the arm and forcefully pulling them to the ground." The Amended Administrative Complaint does not identify the students whom Respondent is alleged to have treated in such a manner. Jobes testified that "one or two times" she had seen Respondent grab a student by the arm and pull that student to the ground in an effort to get the student to sit down. She could not recall which students she allegedly saw Respondent treat in that manner and she did not provide any detail regarding these alleged incidents. Her testimony was not corroborated by any other competent evidence in the record and was too vague and lacking in detail to be deemed credible or persuasive. Brown testified that on one occasion, Respondent pushed M.P. to make her walk faster, causing her to fall to the ground. Although Brown identified the specific student, she provided no temporal context or detail regarding the incident. Her testimony was confused and imprecise, so was neither credible nor persuasive. Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the arm and forcefully pulled them to the ground. Petitioner also generally alleges, in paragraph 8. of the Amended Administrative Complaint, that on occasion, Respondent would grab students by the neck to force them to look at their work. However, neither Brown nor Jobes identified any specific students to whom Respondent's alleged conduct was directed or provided any detail or context in which these alleged incidents occurred, and their testimony was too vague and imprecise to be deemed credible or persuasive. Petitioner did not present any other competent substantial evidence to substantiate this allegation. Respondent testified that at times, it was necessary for her to physically focus students' attention on their work. At those times, she would place her hands on the student's head and turn the student's face down toward the desk so that the student could attend to his or her work. She testified that she did not grab students by the back of the neck or engage in any forceful techniques as she focused their attention on their work. Her testimony was credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent grabbed students by the neck and forced them to look at their work. Petitioner also alleges, in paragraph 8. of the Amended Administrative Complaint, that "[i]n one incident, Respondent crumbled [sic] a student's paper into a ball before throwing it at the student." The student whom Respondent is alleged to have treated in this manner was not identified in the Amended Administrative Complaint. Paragraph 8. specifically states that the incidents alleged therein occurred "shortly after the commencement of the school year in August 2012." However, the only evidence Petitioner presented in support of this allegation was the testimony of Cara Yontz, a paraprofessional assigned to Respondent's classroom in the 2011-2012 school year——a completely different school year than Respondent's actions alleged in the Amended Administrative Complaint. Thus, Petitioner failed to present any evidence to substantiate this allegation in paragraph 8. Even assuming that the reference in the Amended Administrative Complaint to the 2012-2013 school year was a drafting error and that Petitioner actually intended to allege that Respondent engaged in such conduct during the 2011-2012 school year, Petitioner still did not prove this allegation by credible, persuasive evidence. Yontz testified that on one occasion, a student named "D." was having difficulty with his work and that twice, when he turned his work in to Respondent, she yelled at him, crumpled up his paper, and threw it back at him, causing him to cry. Petitioner did not present any other competent substantial evidence to support this allegation. Respondent denied having thrown D.'s paper at him and testified, credibly, that she never had thrown anything at any student. The undersigned finds Respondent's testimony on this point credible and persuasive. Thus, Petitioner failed to prove the allegation in paragraph 8. of the Amended Administrative Complaint that Respondent crumpled a student's work and threw it at him. Petitioner also alleges in paragraph 8. that Respondent verbally abused unspecified students, making statements such as "they're so stupid," and that she was "happy that God never gave her kids like them." Petitioner did not present credible, persuasive evidence proving this allegation, and Respondent credibly testified that she had not, and would not, ever address a student in such a manner. Failure to Provide Statement On March 4, 2013, the Broward District Schools Police Department issued a Notice to Appear for Statement ("NTA") to Respondent, informing Respondent that an investigation regarding a reported incident had been initiated. The NTA informed Respondent that on March 11, 2013, she was required to appear at a designated location and provide a statement as part of the investigation. The NTA further informed her that a representative of her choice could be present during the statement and that her failure to appear on the scheduled date and to provide a statement would constitute gross insubordination and lead to disciplinary action up to and including termination. Respondent is a member of the Broward Teacher's Union ("BTU") and was represented by Diane Watts, a field staff representative with BTU, in the investigation. Watts had contact with Kathleen Andersen, a detective with the Broward District Schools Police Department regarding scheduling the appointment and other matters with respect to Respondent's statement. At some point before Respondent was to appear and provide her statement, Andersen called Watts to give her a "heads-up" that the investigation was "going criminal"——meaning that a criminal investigation was being commenced and that criminal charges may be filed against Respondent. Watts testified, credibly, that when a matter "goes criminal," the BTU retains a lawyer to represent the member being investigated. At that point, BTU had not yet retained an attorney to represent Respondent in any investigation that may "go criminal." Under those circumstances, it is customary for the employee not to appear and provide a statement. Watts testified, credibly, that she informed Andersen that under the circumstances, Respondent would not appear as scheduled on March 11, 2013, to provide the statement. Watts understood Andersen to have agreed that, given the circumstances, Respondent was not required to appear and, in fact, she credibly testified that she believed Andersen had called her to give her a "heads-up" specifically so that she and Respondent would not make a wasted trip to appear at the location of the scheduled statement, only to find out there that the investigation had "gone criminal"——at which point, Watts would have advised Respondent not to make a statement pending BTU's retention of a lawyer to represent her. Based on her belief that she had an understanding with Andersen, Watts advised Respondent that she was not required to appear and provide a statement on March 11, 2013. Therefore——specifically at Watts' direction and advice——Respondent did not appear and provide a statement on March 11, 2013. At the final hearing, Andersen disputed that she had agreed with Watts that Respondent did not need to appear and provide a statement as directed in the Notice to Appear. Andersen testified that pursuant to Petitioner's Policy 4.9, Respondent was required to appear and provide a statement, and that she had not done so.29/ IV. Findings of Ultimate Fact Petitioner seeks to suspend Respondent without pay and to terminate her employment as a teacher on the basis of just cause, pursuant to section 1012.33, Florida Statutes. The statute defines just cause to include immorality, misconduct in office, incompetency, gross insubordination; and being convicted of or found guilty of, or entering a plea of guilty of, regardless of adjudication of guilt, any crime involving moral turpitude. Here, Petitioner charges that just cause exists, on each of these bases, to suspend Respondent without pay and terminate her employment. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Further, whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation.30/ For the reasons discussed in detail above, Petitioner failed to prove, by a preponderance of the competent substantial evidence, any of the allegations in the Amended Administrative Complaint, and therefore failed to prove any of the administrative charges stated in the Amended Administrative Complaint. Petitioner asserts in Petitioner's Proposed Recommended Order that "Petitioner had a number of witnesses to testify to these various events. Respondent had none." This mischaracterizes the evidence presented in this case. Although Petitioner presented the testimony of four persons having personal knowledge of some of the incidents, for several of the allegations, Petitioner presented the testimony of only one witness who had personal knowledge of the alleged incidents, and, as discussed above, often that testimony was not credible. Even when Petitioner presented the testimony of more than one witness regarding a particular allegation, as discussed above, often that testimony was inconsistent on significant details, calling into serious question the credibility and reliability of the testimony. Also, Respondent herself testified. Her testimony was clear, precise, credible, and persuasive, and she provided consistent, logical accounts of the incidents that gave rise to the allegations in the Amended Administrative Complaint.31/ In addition to her own testimony, Respondent presented the testimony of the mother of student J.M., who credibly supported Respondent's version of the incident giving rise to one of the allegations involving her daughter. Here, the undersigned did not find the testimony of Cherelus, Yontz, Brown, or Jobes credible or persuasive on most of the matters about which they testified. As discussed in detail above, in many instances their testimony was vague, unclear, or inconsistent with other testimony or evidence. Moreover, it was abundantly clear that each of these paraprofessionals found Respondent difficult to work with because she was demanding, did not tolerate lax performance, and consistently reminded them that as teacher, she was in charge of the management of her classroom. It was apparent that each of them resented her frequent assertion of authority over them. Each of them had ample motive to be untruthful or to exaggerate regarding certain events——such as those involving J.M. being placed in the restroom, C.R. and Respondent falling on the floor, and T.P. being fed by Respondent. In other instances——such as reclining M.P. in the Rifton chair or directing M.M. to retrieve her snack from the trash can——it is plausible to infer that the paraprofessionals misunderstood Respondent's actions and judged to be inappropriate, when, in fact, they were appropriate under the circumstances. Another factor militating against the paraprofessionals' credibility is that each of them was a mandatory child abuse reporter under Florida law, each of them knew that, and each understood her legal duty. Nonetheless, most of the incidents alleged in the Amended Administrative Complaint were not reported until sometime after the incident is alleged to have occurred. In particular, Brown and Jobes first reported that Respondent had engaged in abusive behavior only after she had taken measures to address their classroom performance issues, including her requesting a meeting with the principal and holding her own meeting aimed at, again, addressing their unacceptable behavior and performance. Petitioner focuses on a statement in Respondent's January 23, 2013, email thanking Brown and Jobes for their efforts as indicating that up to that point, Respondent and the paraprofessionals enjoyed a smooth working relationship and that Respondent did not have any problems with their performance, and, in fact, was pleased with their performance. However, this position is contradicted by the strong evidence showing otherwise. Respondent's emails to the school administration dated December 1, 2012, and January 9, 10, and 23, 2013, particularly speak to the ongoing difficulty she was having with both paraprofessionals, even before they submitted statements alleging that she had abused students. Further, the testimony by Brown, Jobes, and Respondent shows that the relationship between Respondent and the paraprofessionals was not a smooth one. In sum, the evidence establishes that the paraprofessionals were not reliable witnesses, and their testimony was neither credible nor persuasive. Conversely, Respondent's testimony was credible and persuasive. Accordingly, Petitioner failed to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct during the 2011-2012 and 2012-2013 school years that violated Department of Education rules and school board policies, and, thus, constituted just cause to suspend Respondent without pay and terminate her employment. Petitioner also has charged Respondent with gross insubordination for failure to appear and provide a statement to the Broward District Schools Police Department on March 11, 2013. As discussed above, the credible, persuasive evidence establishes that Respondent did not appear and provide a statement to the Broward Schools Police Department specificially because she had been directed and advised by her BTU representative not to do so. Further, even if Watts did not, in fact, have an understanding with Andersen that Respondent would not provide a statement, it is undisputed that Watts told Respondent that such an understanding existed so that she did not need to appear and provide a statement. Thus, the credible, persuasive evidence establishes that Respondent did not intentionally refuse to appear and provide a statement, but, instead, simply and reasonably followed the advice and direction of her BTU representative, who had specifically told her not to appear and provide a statement. Under these circumstances, it cannot be inferred that Respondent intentionally refused to obey a direct order, reasonable in nature. Accordingly, the credible, persuasive evidence establishes that Respondent did not commit gross insubordination. Based on the foregoing, it is determined that Petitioner failed to meet its burden to prove, by a preponderance of the competent substantial evidence, that Respondent engaged in conduct, alleged in the Amended Administrative Complaint, that violates Department of Education rules and school board policies. Accordingly, Petitioner did not prove that just cause exists to suspend Respondent without pay and terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order dismissing the Amended Administrative Complaint against Respondent; reinstating Respondent's employment as a teacher; and awarding Respondent back pay for the period of her suspension, less the amount of back pay that would be owed for the period commencing on November 6, 2013, and ending on January 23, 2014.42/ DONE AND ENTERED this 22nd day of October, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2015.
The Issue Whether just cause exists for Petitioner to suspend Respondent's employment as a teacher without pay for one day.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools in Broward County. The School Board hired Respondent on September 1, 1981. At all times material hereto, Respondent has been employed by the School Board as a middle school social science teacher and department head at Whiddon-Rogers Education Center ("Whiddon-Rogers"). At all times material to this case, Respondent's employment with the School Board has been governed by Florida law and the School Board's policies. The conduct giving rise to the School Board's proposed one-day suspension of Respondent occurred on October 1, 2019, during the 2019-2020 school year. On the morning of October 1, 2019, M.G., an eighth grade male student at Whiddon-Rogers, received a telephone call regarding some family members who had died that morning. Due to the deaths in his family, M.G. was upset and in a "bad mood" throughout the morning and later that day when he arrived in Respondent's fourth period social studies class. During Respondent's fourth period class, M.G. did not want to be disturbed. He had a "hoodie over his head," his head down on his desk, and he was not doing any work. M.G. was often picked on in class by other students. On this particular occasion in Respondent's fourth period class, M.G. was being picked on by other students as he laid his head down on his desk. At some point, M.G. picked his head up from his desk and made a verbal threat to other students that he was going to shoot up the school. Respondent did not hear M.G. make the threat. One of the other students that heard M.G.'s threat went to Respondent during class and told him M.G. had threatened to shoot up the school. Respondent did not report M.G.'s threat to school administration. Respondent did not consider M.G.'s comment to be a dangerous threat. Respondent did not want to embarrass M.G. and told him during his fourth period class on October 1, 2019, that he could not say things like that. M.G., who was angry, did not respond to Respondent and walked out of the classroom. Respondent instructed M.G. to return to the classroom, but M.G. ignored him. On October 2, 2019, M.G. did not attend school. On the morning of October 3, 2019, Assistant Principal Sabrina Smith received a text message from another teacher at Whiddon-Rodgers, N'Kenge Rawls, notifying her of M.G.'s threat on October 1, 2019, to shoot up the school. Ms. Smith notified the other assistant principals of the threat and assembled the mandatory members of the Behavioral Threat Assessment ("BTA") team to collaboratively analyze available data, determine the level of risk, and develop appropriate interventions. As part of the threat assessment, Ms. Smith spoke to M.G. on October 3, 2019, who admitted he had threatened to shoot up the school. Ms. Smith also spoke to Respondent, who admitted he did not report M.G.'s threat to administration on October 1, 2019. Respondent admitted to Ms. Smith that he should have reported M.G.'s threat and that he made a mistake in not reporting the threat. Based on the behavioral threat assessment, the BTA team determined M.G.'s risk level to be "Medium/Serious Substantive." A "Medium/Serious Substantive" risk level means that the student "does not appear to pose a threat of violence at this time but exhibits behaviors that indicate a continuing intent to harm and/or potential for future violence." By all accounts, Respondent is a good teacher and well respected by his colleagues as evidenced by his team leader role at Whiddon-Rodgers. However, on this particular occasion, Respondent used poor judgment and erred in not reporting M.G.'s threat to shoot up the school on October 1, 2019. The persuasive and credible evidence adduced at hearing establishes that Respondent failed to report M.G.'s threat to shoot up the school, which constitutes misconduct in office in violation of Florida Administrative Code Rule 6A-5.056. By failing to report M.G.'s threat to shoot up the school, Respondent violated rule 6A-10.081(2)(a)1., by failing to make reasonable effort to protect the students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety. Respondent's conduct also constitutes "[i]ncompetency" and "[i]nefficiency," in violation of rule 6A-5.056(3) and (3)(a)1., by failing to discharge the duty to report such a threat as prescribed by law and "[i]nefficiency" in violation of rule 6A- 5.056(3)(a)3., by failing to communicate appropriately with and relate to administrators. Respondent's conduct also violates School Board Policy 2130, which requires School Board employees "to report to school administration any expressed threat(s) or behavior(s) that may represent a threat to the community, school, or staff," and School Board Policy 4008, which requires Respondent to comply with the "Principles of Professional Conduct of the Education Profession in Florida," and "all rules and regulations that may be prescribed by the State Board and by the School Board." Respondent has only received prior discipline on one occasion. On September 19, 2007, Respondent received a written reprimand for inappropriate discipline of a student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order upholding the one-day suspension of Respondent's employment without pay. DONE AND ENTERED this 10th day of November, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2020. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast 3rd Avenue, 11th Floor Fort Lauderdale, Florida 33301 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. 201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed) Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether just cause exists for Petitioner, DeSoto County School Board (School Board), to suspend Respondent without pay, and terminate her employment as an Exceptional Student Education (ESE) teacher.
Findings Of Fact Parties and Relevant Policies The School Board is charged with the duty to operate, control, and supervise public schools in DeSoto County. Art. IX, § 4(b), Fla. Const. (2018). This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. Respondent is an ESE classroom teacher at DeSoto County High School (High School). Although Respondent has been teaching for 23 years, she has only been an ESE classroom teacher for the School Board since 2016. Superintendent Cline is an elected official who has authority for making School Board personnel decisions. His duties include recommending to the School Board that a teacher be terminated. § 1012.27(5), Fla. Stat. David Bremer (Principal Bremer) was the principal at the High School at all times relevant to these proceedings, and Cynthia Langston served as the Assistant Principal. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education regulations, and the Collective Bargaining Agreement (CBA) entered into by the School Board and the Desoto County Educators Association, a public union. The CBA relevant to this action was effective July 1, 2018, through June 30, 2021. The School Board employed Respondent on an annual contract basis. “Annual contract” means an employment contract for a period of no longer than one school year which the School Board may choose to award or not award without cause. § 1012.335(1)(a), Fla. Stat. The testimony at the hearing and language in the CBA establish that the annual contract of a teacher, who has received an indication he or she “Needs Improvement” or is placed on an improvement plan, is not eligible for automatic renewal. In these situations, the superintendent has discretion regarding whether to renew that teacher’s annual contract. See CBA, Art. 8, § 16. Article 22, section 8 of the CBA provides for progressive discipline for teachers in the following four steps: (1) verbal reprimand (with written notation placed in the site file); (2) written reprimand (filed in personnel and site files); (3) suspension with or without pay; and (4) dismissal. The CBA makes clear that progressive discipline must be followed, “except in cases that constitute a real immediate danger to the district or [involve a] flagrant violation.” February 11, 2019 (the February 11 Incident) This proceeding arises from an incident that occurred on February 11, 2019, after lunch in Respondent’s ESE classroom. The School Board alleges Respondent intentionally threw a foam or Nerf-type football at a student in a wheelchair when he failed to follow her instructions, and the football hit the student. Respondent asserts she playfully threw stress ball-type footballs up in the air and one accidently bounced and hit A.R.’s chair. Respondent’s classroom at the High School consisted of ten to 12 ESE students during the 2018-2019 school year. These students had special needs and some were nonverbal. On the day of the incident, there were nine or ten students in Respondent’s classroom, including A.R., a high school senior with cerebral palsy. Respondent kept small foam or Nerf-type footballs in her desk drawer. The testimony at the hearing established Respondent had used them in the classroom to get the students’ attention in a playful fashion. In addition to Respondent, four paraprofessionals assisted the students in the classroom. Of the four, only three were in the classroom during the February 11 incident: Ms. Walker, Mr. Blevins, and Ms. Murray. Respondent was responsible for A.R. while in her classroom. A.R. uses a wheelchair or a walker to get around, but has a special chair-desk in Respondent’s classroom. A.R. had difficulty in the classroom setting. Specifically, it was noted at the hearing that he has trouble processing what is happening around him, and that he needs help simplifying tasks that require more than one step. Although A.R. is verbal, he is slow to respond. A.R. was described as a “repeater” because he repeats things that others say, smiles if others are smiling, or laughs if others are laughing. In conversation, A.R. would typically smile and nod, or say “yes.” Ms. Walker’s and Mr. Blevins’s recollections of the February 11 incident were essentially the same. They testified that on the afternoon of February 11, 2019, the students returned to Respondent’s classroom from art class. They were excited and did not settle down for their lesson. As a result, Respondent became frustrated and yelled at the students to get their pencils so they could start their work. Respondent asked A.R., who was in his special chair-desk, to obtain a pencil. A.R. did not respond immediately and Respondent told him to get his pencil or she would throw a football. Ms. Walker’s and Mr. Blevins’s testimony established that, at this point, Respondent threw either one or two blue, soft, Nerf-type footballs approximately six inches long at A.R., who was looking in another direction. One of these blue footballs hit A.R. either in the side of his torso or back. A.R. began flailing his arms while he was in his chair-desk, and the entire room became silent. Ms. Murray was not facing A.R. during the incident, but she heard Respondent yell at A.R. to pay attention. She did not see Respondent throw the balls and was unsure if any of the balls made contact with A.R. After the incident, however, she saw two balls on the floor, picked them up, and returned them to Respondent. Ms. Murray did not recall the color of the footballs, and could only describe them as “squishy.” Respondent testified that A.R. was not paying attention, and she admits she told him she was going to toss the footballs if he did not get his pencil. She denies throwing a blue football at A.R., but instead claims she threw two smaller foam brown footballs. She denied any of the balls hit him, but rather, explained one of the brown footballs bounced off the floor and hit A.R.’s chair-desk; the other fell on her desk. The undersigned finds the testimony of Respondent less credible than the paraprofessionals’ testimony. First, all of the evidence established Respondent clearly threw footballs after A.R. did not respond to her instruction, and Respondent knew (or should have known) that A.R. was incapable of catching the football or responding positively. Second, Respondent’s version of what happened to the balls after she threw them is inconsistent with the testimony of Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s testimony that one ball fell on her desk is also inconsistent with Ms. Murray’s testimony that she picked up two balls off the floor. Finally, Respondent’s version of events is not believable in part, because neither the brown nor the blue football entered into evidence had sufficient elasticity (or bounciness) to have acted in the manner described by Respondent. Based on the credible evidence and testimony, the undersigned finds Respondent intentionally threw the blue larger footballs at A.R. knowing he would not be able to catch them, one ball hit A.R. in the side or back, and A.R. became startled from being hit. There was no evidence proving A.R. was physically, emotionally, or mentally harmed. Report and Investigation of the February 11 Incident Both Ms. Walker and Mr. Blevins were taken aback by Respondent’s behavior. Ms. Walker was concerned that A.R. did not realize what was happening, and that the rest of the students were in shock. She did not think a teacher should throw anything at any student. Mr. Blevins similarly stated he was stunned and did not believe Respondent’s conduct was appropriate, especially because A.R. was in a wheelchair. At the hearing, Respondent also admitted it would be inappropriate to throw anything at a student even if it was just to get his or her attention. Both Ms. Walker and Mr. Blevins attempted to report the incident immediately to the High School administration. Ms. Walker left the classroom to report the incident to Principal Bremer, who was unavailable. Ms. Walker then reported to Assistant Principal Langston what she had seen happen to A.R. in Respondent’s classroom. During this conversation, Ms. Walker was visibly upset. After listening to Ms. Walker, Assistant Principal Langston suggested she contact the Department of Children and Families (DCF). Ms. Walker used the conference room phone and immediately contacted the abuse hotline at DCF. As a result, DCF opened an abuse investigation into the incident. Meanwhile, Mr. Blevins had also left Respondent’s classroom to report the incident to Assistant Principal Langston. When he arrived, he saw that Ms. Walker was already there and assumed she was reporting what had happened. Therefore, he did not immediately report anything. Later that day, Assistant Principal Langston visited Respondent’s classroom, but did not find anything unusual. She did not speak to Respondent about the incident reported by Ms. Walker. The next day, February 12, 2019, Assistant Principal Langston obtained statements from the paraprofessionals, including Ms. Walker and Mr. Blevins in Respondent’s classroom regarding the February 11 incident. These statements were forwarded to Superintendent Cline, who had been advised of the incident and that DCF was conducting an investigation. It is Superintendent Cline’s practice to advise administrators to place a teacher on suspension with pay during an investigation. If the teacher is cleared, the administrator should move forward with reinstatement. In this case, Principal Bremer met with Respondent on February 12, 2019, and informed her she would be placed on suspension with pay while DCF conducted its investigation into the incident. DCF closed its investigation on February 19, 2019. No one who conducted the DCF investigation testified at the hearing, and the final DCF report was not offered into evidence. Rather, the School Board offered a DCF document titled “Investigative Summary (Adult Institutional Investigation without Reporter Information).” This document falls within the business records exception to the hearsay rule in section 90.803(6), Florida Statutes, and was admitted into evidence. The undersigned finds, however, the Investigative Summary unpersuasive and unreliable to support any findings. The document itself is a synopsis of another report. Moreover, the document is filled with abbreviations and specialized references, but no one with personal knowledge of the investigation explained the meaning of the document at the final hearing. Finally, the summary indicates DCF closed the investigation because no physical or mental injury could be substantiated. On February 21, 2019, Principal Bremer notified Superintendent Cline that DCF had cleared Respondent, but did not provide him with a copy of the DCF report or summary. Principal Bremer did not have to consult with Superintendent Cline regarding what action to take regarding Respondent. Based on the DCF finding that the allegation of abuse or maltreatment was “Not Substantiated,” Principal Bremer reinstated Respondent to her position as an ESE teacher, but still issued her a written reprimand. The reprimand titled “Improper Conduct Maltreatment to a Student” stated in relevant part: I am presenting you with this written reprimand as discipline action for your improper conduct of throwing foam balls at a student. On February 11, 2019 it was reported you threw a football at [A.R.], a vulnerable adult suffering from physical limitations. As a result of this action, Florida Department of Children and Families (DCF) were called to investigate and you were suspended until the investigation was complete. Although maltreatment of [sic] Physical or Mental Injury was not substantiated, DCF reported three adults in the room witnessed you throwing at least two foam balls at [A.R.] because he did not get a pencil on time. Apparently [A.R.] did not follow through with the direction provided by you and you became frustrated for that reason. I am by this written reprimand, giving you an opportunity to correct your improper conduct and observe Building rules in the future. I expect you will refrain hereafter from maltreatment to a student and fully meet the duties and responsibilities expected of you in your job. Should you fail to do so, you will subject yourself to further disciplinary action, including a recommendation for immediate termination and referral of the Professional Practices Commission. On February 25, 2019, Respondent returned to her same position as an ESE teacher, in her same classroom, with the same students, including A.R. Superintendent’s Investigation and Recommendation to Terminate Meanwhile, Superintendent Cline requested a copy of the report of the investigation from DCF and contacted the DCF investigator. Based on his review of what was provided to him and his conversation with DCF, he concluded A.R. may still be at risk. Superintendent Cline found Respondent’s actions worthy of termination because “it is unacceptable to throw a football at a student who has cerebral palsy, and thus, such conduct violates” state rules and School Board policy. School Board PRO at 15, ¶ 72. There was no credible evidence at the hearing that A.R. or any other student was at risk from Respondent. The School Board failed to establish at the hearing what additional information, if any, Superintendent Cline received that was different from the information already available to him, or that was different from the information provided to Principal Bremer. There was no justification or plausible explanation as to why Superintendent Cline felt the need to override Principal Bremer’s decision to issue a written reprimand for the violations. On March 6, 2019, Superintendent Cline issued a letter suspending Respondent without pay effective March 8, 2019, and indicating his intent to recommend to the School Board that it terminate Respondent’s employment at its next regular board meeting on March 26, 2019. Attached to the letter were copies of the Investigative Summary, Florida Administrative Code Rule 6A- 10.081, and School Board Policy 3210. This letter was delivered by a School Board’s human resources employee to Respondent on March 8, 2019. Respondent did not return to the classroom for the remainder of the school year. Respondent’s Disciplinary History Prior to the February 11 incident, Respondent had received an oral reprimand for attendance issues on December 21, 2018. On February 6, 2019, Assistant Principal Langston met with Respondent to address deficiencies in Respondent’s attendance, lesson plans, timeliness of entering grades, and concerns with individual education plans for her ESE students. At that meeting, Assistant Principal Langston explained Respondent would be put on an improvement plan and that if Respondent did not comply with the directives discussed at the meeting, she would be subject to further discipline, including termination. Although the plan was memorialized, Respondent was not given the written plan until after she returned from the suspension. Ultimate Findings of Fact Respondent intentionally threw two footballs in an overhand manner at A.R., a student who could not comprehend the situation and could not catch the balls. She did so either in an attempt to garner the student’s attention or out of frustration because he was not following directions. Respondent did not violate rule 6A-10.081(2)(a)1., because there was no evidence the incident exposed A.R. to harm, or that A.R.’s physical or mental health or safety was in danger. Similarly, Respondent did not violate School Board Policy 3210(A)(1). Respondent violated rule 6A-10.081(2)(a)5., which prohibits a teacher from “intentionally expos[ing] a student to unnecessary embarrassment or disparagement.” The evidence established Respondent’s action in throwing the ball was intentional and was done to embarrass or belittle A.R. for not following her directions. For the same reason, Respondent’s conduct violated School Board Policy 3210(A)(5). Respondent violated rule 6A-10.081(2)(a)7., which states that a teacher “[s]hall not harass or discriminate . . . any student on the basis of . . . handicapping condition . . . and shall make reasonable effort to assure that each student is protected from harassment.” Again, the credible evidence established the act of a teacher throwing any item at any student, especially one who requires a wheelchair, is inappropriate and would be considered harassment on the basis of a student’s handicap. Similarly, Respondent violated rule 6A-10.081(2)(c)4., which requires that a teacher “not engage in harassment or discriminatory conduct which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.” For the same reasons listed above, Respondent’s conduct also amounts to a violation of School Board Policy 3210(A)(7). There was no evidence this conduct constituted a real immediate danger to the district, nor does it rise to the level of a flagrant violation. Therefore, the School Board must apply the steps of progressive discipline set forth in article 22, section 8 of the CBA. Pursuant to the terms of the CBA, Respondent should have received a written reprimand for the February 11 incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DeSoto County School Board: enter a final order finding Respondent violated Florida Administrative Code Rule 6A-10.081(2)(a)5., and (2)(c)4.; and corresponding School Board Policy 3210(A)(5) and (7); rescind the notice of termination dated March 6, 2019, and, instead, reinstate Principal Bremer’s written reprimand dated February 25, 2019; and to the extent there is a statute, rule, employment contract, or Collective Bargaining Agreement provision that authorizes back pay as a remedy for Respondent’s wrongful suspension without pay, Respondent should be awarded full back pay and benefits from March 8, 2019, to the end of the term of her annual contract for the 2018-2019 school year. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 13th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 13th day of August, 2019. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Adrian H. Cline, Superintendent The School District of DeSoto County 530 LaSolona Avenue Post Office Drawer 2000 Arcadia, Florida 34265-2000 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether there is just cause to terminate Lontay Finney's employment with Palm Beach County School Board based upon the allegations made in its Petition.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Palm Beach County, Florida. Article IX, Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Finney started his employment with the School Board on December 19, 2005. He was employed pursuant to an annual contract. Finney taught at Glades Central High School ("Glades Central") from 2010 through 2015. He was last employed as both a science teacher and assistant athletic director. Finney's annual evaluations were acceptable and effective during each year of his employment at Glades Central. As a teacher, Finney was expected to comply with the Code of Ethics. On June 1, 2010, he signed an acknowledgment that he received training, read, and would abide by School Board Policy 3.02, Code of Ethics. Reniqua Morgan ("Morgan") was a female student at Glades Central from 2011 to 2015. She was a cheerleader athlete but never had Finney as a teacher. Finney knew of Morgan as one of the daughters of his teacher colleague, Renee Johnson Atkins ("Atkins") and from seeing Morgan around school. Morgan and Finney also knew who each other were because they had a niece in common and lived in the small town of Belle Glade. However, Finney and Morgan did not associate with one another directly before March 2015. On or about March 22, 2015, Finney initiated contact, reaching out to Morgan by poking her on Facebook. Morgan poked him back and then Finney followed up by inboxing her next. Morgan was surprised that Finney was conversing with her. They continued to chat for several weeks not on an open feed of Facebook but messaging each other's inbox privately. Between 10:30 and 11:00 p.m. on Sunday, April 12, 2015, Finney initiated a conversation with Morgan and they chatted on Facebook. Finney suggested that the two of them get together and asked Morgan, do you want to "chill?" Morgan agreed and said "I don't mind." They then decided to meet up. Finney did not offer to pick Morgan up at her house. Finney instructed her to meet him at the stop sign, around the corner and down the street from where she lived.1/ Morgan, unbeknownst to her mother, met Finney by the stop sign. At the stop sign, Morgan got in Finney's mother's truck with Finney. When Finney first made contact with Morgan that night, he gave her a hug. He then drove her to his home. At all times relevant to these proceedings, Morgan was a 17-year-old minor. Finney did not have permission from Morgan's parents to either pick her up or take her to his house. His inappropriate actions were outside of school and not in connection with any school-related activity in any way. At approximately 12:24 a.m. on Monday, April 13, 2015, Morgan's mother, Atkins, was at her residence and went to use the restroom and she then discovered that Morgan was not at home. Morgan had left home without her permission. Atkins was worried about Morgan being out that early in the morning because it was "unsafe because [of] the neighborhood that [she] live[d] in, there [were] some people in that neighborhood that [were] unsafe."2/ While at Finney's house, Finney and Morgan remained in the parked truck alongside of the house alone together for approximately an hour and a half to two hours and spent some of the time talking and scrolling through Netflix on Finney's phone. Neither Morgan nor Finney can recall the name of any of the movies they watched on Netflix. Morgan's mother was looking for Morgan and found out from Bethanie Woodson ("Woodson"), Morgan's friend, that her daughter was with Finney. Atkins took Woodson with her and drove to Finney's house looking for Morgan. While in the truck with Finney, Morgan's friend contacted her and let her know that her mother was looking for her. Morgan told Finney she needed to go home. Atkins also learned while at Finney's house that Morgan was on the way home, so she got back in her vehicle and returned home. Morgan told Finney to drop her off near the railroad track, which is not the same place he picked her up. He then dropped her off where she suggested near Avenue A, a neighborhood on the opposite side of the railroad tracks from where Morgan lived, and several blocks away from her home. After Finney dropped Morgan off in the early school day morning while it was dark outside, Morgan had to walk down the street, come through the neighborhood and then walk across the bushy railroad tracks to get to her residence. The foot path Morgan took was also unlit, grassy, and rocky near the train tracks. No streetlights were near the tracks.3/ When Morgan got home, her mother, sister, and Woodson were waiting for her. Morgan's mother was irate that Morgan had been with Finney and drove Morgan back to Finney's home to address his actions with her daughter. Finney lived with his parents. When Atkins knocked on the door, Finney's father came to the door and Atkins requested to see Finney. Atkins confronted him angrily and berated him for being a teacher, picking up Morgan, and taking her to his house at that hour of the night. Atkins also informed Finney's mother what occurred while she was at their house. Morgan and Finney have had no contact since the incident. Morgan's mother reported the incident to Glades Central. As a result, the principal assigned Finney to his residence by letter, with pay, starting April 13, 2015, pending the investigation or notification of a change in assignment in writing. On April 15, 2015, Finney was assigned to temporary duty at Transportation Services pending investigation. An investigation by the school police found no violation of a criminal law by Finney, and the case was referred to Petitioner's Office of Professional Standards, which is charged with conducting investigations into alleged violations of School Board policy. On or about May 11, 2015, the Office of Professional Standards opened an administrative investigation. Dianna Weinbaum ("Weinbaum"), now director of Office of Professional Standards and former human resources manager, was assigned to investigate the matter. Around the time the investigation was being conducted, Finney deactivated his Facebook page due to the mostly negative comments and statuses, as well as rumors surrounding the incident of him picking up Morgan and taking her to his house. Finney was able to finish the school year working back at Glades Central between investigations. Weinbaum performed a thorough and complete investigation regarding the allegations against Respondent. She interviewed all the witnesses and obtained statements, as well as visited the locations where Finney picked up and dropped off Morgan. On August 4, 2015, consistent with District policy, Respondent was removed from the classroom and reassigned from his teaching position back to a temporary duty location again. On October 8, 2015, a pre-determination meeting was held with the director of the Office of Professional Standards and Finney, who was represented by counsel regarding the interactions between Finney and Morgan. Finney was provided a copy of the investigative file. At the end of the investigation, it was determined that Finney's actions were both an inappropriate relationship with Morgan and posed a clear threat to Morgan's health, safety and welfare. Weinbaum recommended discipline for Finney consistent with discipline received by other employees based on the superintendent and School Board's position that employees who engage in inappropriate relationships with students and who endanger the health, welfare and safety of a child will be terminated. On November 19, 2015, Petitioner notified Finney of the superintendent's recommendation for termination of his employment at the School Board Meeting set for December 9, 2015. The School Board accepted the superintendent's recommendation and voted to suspend Finney for 15 days and thereafter terminate his employment. Finney timely requested a hearing to contest the superintendent's recommendation. Finney's disciplinary history does not include any discipline for actions similar to these for which suspension and termination are recommended. Petitioner charged Finney by Petition with soliciting an inappropriate relationship with a student that jeopardized her health, safety and welfare. The Petition charged Finney with the following violations: School Board Policies 0.01(2)(c),(2)(f) Commitment to the Student Principle 1; 3.02(4)(a)(b)(d)(e),(g); 3.02 5(a),(a)(iii),(a)(v),(a)(vii); Code of Ethics; 1.013(1) and (4), Responsibilities of School district Personnel and Staff; School Board Policies 1.013 and 3.27, Criteria for Suspension and Dismissal, and Code of Ethics of the Education Profession in Florida; the Collective Bargaining Agreement Article II, Section M; and (C) Rule 6A-5.056 (2)(a),(b) and (4) F.A.C., Criteria for Suspension and Dismissal; 6A-10.081 (3)(a) and (3)(e), F.A.C.; 6A-10.080(1),(2) and (3) F.A.C. Code of Ethics for the Education Profession of Florida; and 6A-10.081(3)(a) and (3)(h) F.A.C. Principles of Professional Conduct for the Education Profession. During the final hearing in this matter, Finney testified that his decision to drive Morgan to his house "was a lapse in judgment and it was just a bad decision that I made." At hearing, the testimony and exhibits established that Finney initiated contact with Morgan and solicited an inappropriate relationship with a student that jeopardized her health, safety and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: dismissing charges of violations of policies 0.01(2)6., 3.02(4)(a), (d), (e), and (g); 5(a), (a)(iii), (a)(v), and (a)(viii); 1.013(4); and rule 6A-10.081(3)(e) and (h); finding Respondent in violation of rules 6A-10.080(2) and (3), 6A-5.056(2), 6A-10.081(3)(a), policies 0.01(2)3., 1.013(1), 3.02(4)(b), and 3.02(5)(a)(vii), as charged; and upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 4th day of January, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 4th day of January, 2017.
