The Issue Whether Petitioner has just cause to terminate Respondent's employment as a classroom teacher for the conduct alleged in the Amended Notice of Specific Charges.
Findings Of Fact At all times material hereto, Petitioner has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Both West Hialeah and Aventura are public schools in Miami-Dade County, Florida. During the 2011-12 school year, Respondent was employed as a teacher assigned to West Hialeah. Respondent's teaching assignment during the 2014-2015 school year was as a teacher at Aventura. Respondent's employment is governed by the collective bargaining agreement between Petitioner and the United Teachers of Dade ("UTD Contract"), Florida Statutes, the regulations issued by the Florida State Board of Education as set forth in the Florida Administrative Code, and the School Board's policies and procedures. Respondent's Prior Discipline During the 2011-2012 school year, Respondent was investigated for hitting an exceptional student education (ESE) student at West Hialeah. The investigation concluded that there was probable cause to charge Respondent with violating School Board Policies 3210 and 3210.01. As a result, a conference-for- the-record (CFR) was held on December 15, 2011, wherein OPS District Director, Dr. Brown, issued Respondent directives to: adhere to all School Board policies, specifically 3210, Standards of Ethical Conduct; 3210.01, the Code of Ethics; and 5630, Corporal Punishment and the Use of Reasonable Force; refrain from contacting in person or by any other means any of the parties involved in the investigation; refrain from using physical means as a form of discipline; and [] conduct [herself], both in [her] employment and in the community, in a manner that reflects credit upon [herself] and the district. Respondent signed on January 3, 2012, that she was in receipt of these directives. Although the charges against Respondent relating to physical aggression against a student merited a recommendation from the School Board that Respondent be terminated, the School Board took into consideration Respondent's length of service with the School Board and the fact that she had not received any prior discipline. As such, it was recommended that Respondent be suspended for 25 workdays without pay. Respondent contested this recommendation. Following a final hearing on September 24, 2012, Administrative Law Judge Stuart M. Lerner found that Respondent used physical aggression toward an ESE student and recommended that the School Board uphold Respondent's 25-workday suspension. Ultimately, Respondent was suspended for 25 workdays without pay. The September 2011 incident was reported to the Florida Department of Education (Florida DOE), and a hearing was held on October 15, 2014, to determine whether any disciplinary measures should be taken on Respondent's educator certificate. Following that hearing, conducted by the undersigned, it was recommended to the Florida DOE that "Respondent be placed on probation for 90 days with a letter or reprimand to be placed in her certification file." The Recommended Order provided that, "[t]his penalty takes into account that Respondent's conduct, in striking the student, was inappropriate under any circumstances, but also places the conduct in perspective in relation to Respondent's otherwise incident-free teaching career." The September 17, 2014, Incident Respondent later began working as a teacher with ESE students at Aventura beginning in the 2012-2013 school year. During the 2014-2015 school year, Respondent worked as an Autism Spectrum Disorder (ASD) teacher. M.C., who suffers from ASD, was a student in Respondent's class during the 2014-2015 school year. M.C. and his family are from Argentina and the 2014-2015 school year was the first year M.C. attended a public school in the United States. Initially, M.C. could not take instruction in class. Respondent worked with him to develop the skills to take instruction by demonstrating actions, repeating instruction and praising the student for doing things correctly. Respondent taught M.C. how to write his name, catch a ball, and hold a pencil. Respondent shared a classroom with fellow teacher, Ms. Stubbs. Ms. Stubbs had her own set of students with varying exceptionalities. Ms. Stubbs had six middle school students and Respondent had six elementary school students. Ms. Pollard acted as Respondent's paraprofessional, helping Respondent with her students. Additionally, Ms. Charles would assist Respondent with M.C. for a few hours each day. Respondent's planning period was during the time her students went to art once a week on Wednesday. Respondent voluntarily gave up her planning period to assist the art teacher, Ms. Garcia, with the students. Ms. Garcia worked as an art teacher at Aventura for six (6) years. On September 17, 2014, Ms. Garcia was teaching art to Respondent's students. After Ms. Garcia had provided instructions for the class, she began walking around the room while the students worked on their assignment. M.C. was seated at his desk coloring with crayons. M.C. began throwing crayons on the floor and Respondent, who had been standing behind M.C. with her hands on his shoulders, grabbed M.C.'s hands and wrists and pulled him down to the floor, causing M.C. to fall down to his knees. Respondent told M.C. to pick up the crayons in a loud tone that conveyed she was annoyed. Once Respondent had M.C. on the floor, she held M.C.'s wrists, forcing him to pick up the crayons off the floor. All the while, M.C., who is non-verbal, was making noises like he was not happy. Ms. Garcia tried to help, but Respondent did not allow her, insisting that M.C. had to clean up by himself. M.C. eventually returned to his seat and then began spitting on the floor. Once again, Respondent pulled M.C. to the floor by his wrists, causing him to land on his knees. Respondent again appeared annoyed as she was forcing M.C. to wipe up the spit. Ms. Garcia attempted once more to assist in the clean-up, but Respondent did not allow her, stating that M.C. had to clean up his own mess. Although Ms. Garcia has seen other ESE students being restrained, she has never seen a teacher treat a student like Respondent treated M.C. by forcefully pulling him to the floor. There was no indication that M.C. was going to hurt himself or other students. Although Ms. Pollard did not see the interaction between Respondent and M.C., because she was busy helping the students with their assignment, she did hear Respondent yell, "Pick it up!" in a tone loud enough to be heard over the noise of the classroom. At the end of the art class, M.C. pinched another student with ASD, K., in front of Respondent. Respondent responded by instructing K. to pinch M.C. back. Ms. Garcia was only three feet away from Respondent when she heard Respondent say this. K. is a very obedient student. When Respondent told him to pinch M.C. back, K. looked confused, shrugged his shoulders and reluctantly pinched M.C. back. Ms. Garcia was shocked by what she witnessed. She verbally intervened by telling Respondent that she would not tolerate Respondent's behavior in her classroom. Ms. Garcia admonished Respondent that the students should not be taught to retaliate against each other. Respondent just stood silent and stunned during the confrontation. Meanwhile, M.C., upset at K.'s retaliation, ran off and pinched another student, R., who retaliated by repeatedly hitting M.C. back. The situation Respondent created was total chaos. Two children, K. and R., who are otherwise well-behaved, were acting aggressively towards each other. Ms. Garcia then had to physically intervene by separating the fighting children because Respondent just stood by. Ms. Pollard, who had been outside Ms. Garcia's classroom with the rest of the class, began to wonder what was taking the other students so long. When Ms. Pollard peered back into the classroom, the expression on Ms. Garcia's face startled her. Ms. Pollard asked Ms. Garcia what was wrong, to which Ms. Garcia responded, "Do you believe she [Respondent] told K. to hit M.C.?!" Ms. Pollard looked over to Respondent, but Respondent remained silent. Ms. Garcia informed Principal Bello that she witnessed Respondent handle M.C. in an inappropriate manner and that Respondent instructed another student to pinch M.C. in retaliation. Respondent denied these allegations. Ms. Garcia did not have any issues with Respondent prior to Ms. Garcia reporting the incident to Principal Bello. After the incident, Respondent stopped coming into Ms. Garcia's classroom with her students. Respondent's Post-Incident Conduct On September 29, 2014, Mr. Bello issued Respondent a letter, directing her to refrain "from contacting any complainant(s) and/or witnesses, with the intent to interfere with the investigation of the above listed allegation." In November of 2014, M.C.'s mother, S.C., received a telephone call from Respondent on a Saturday night at around 8:00 p.m. Respondent proceeded to tell S.C. that she was going to lose her job and teaching license because of S.C.'s son, M.C. Respondent asked S.C. to have her ex-husband, M.C.'s father, write a letter and backdate it to the first day of school in August 2014. Respondent's call made S.C. feel "extremely horrible" and "guilty." S.C. did not want anyone losing their job because of her son. Subsequently, Respondent repeatedly took advantage of the fact that S.C. picked up M.C. in the classroom to talk to S.C. about the allegations. Respondent cried to S.C., telling her that M.C. had behaved well on the last day of school before the Thanksgiving break because M.C. must have known it would be Respondent's last day as his teacher. Respondent's words and actions towards S.C. made S.C. question why the school was investigating or targeting Respondent and she wanted to ask the school to stop their investigation. The effect that Respondent's words and actions had on S.C. is precisely what Petitioner tries to avoid by issuing standard directives that employees being investigated may not contact witnesses with the intent to interfere with the investigation.1/ Respondent was afforded her employee and due process rights, including the opportunity to file exceptions to the investigative report and request a superintendent's review. At its regularly scheduled meeting on December 10, 2014, the Petitioner took action to suspend Respondent without pay and initiated dismissal proceedings against her. Respondent claims that allegations against her are falsified, that Ms. Garcia was "coached" for reasons Respondent could not articulate, and that her co-teacher, Ms. Stubbs, is out to get her. She also believes "the principal and his agents" conspired against her. Notably, Ms. Stubbs was not the individual who reported the incident. She did not provide a statement in support of the allegations nor did she testify at the final hearing. Respondent could not identify the alleged agents of the principal. Respondent's denial of the allegations and conspiracy theory are identical to the defenses she asserted in response to her prior incident of inappropriately touching a child for which she received a 25-day suspension and probation.2/ Respondent presented no credible evidence in support of these defenses. Respondent also claims that M.C.'s father gave her verbal permission at the beginning of the school year to teach his son "life skills" and put physical limits on his son. The father did not testify, there was no corroboration, and it was denied by S.C. Even assuming this was true, it is implausible that M.C.'s father, or any parent, would envision a scenario in which his child would be pulled to the ground forcibly by his teacher, or another student would be encouraged by a teacher to physically retaliate against his child, to teach "life skills." Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent engaged in misconduct in office, gross insubordination, and violated School Board rules 3210 and 3213.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, including Respondent's prior 25-day suspension for similar conduct (inappropriate physical contact with a student) and the seriousness of these violations, it is RECOMMENDED that the School Board enter a Final Order terminating Respondent's employment. DONE AND ENTERED this 26th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2015.
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
The Issue The issues in this case are whether Education Practices Commission (EPC) should discipline the Respondent on charges that she failed to make reasonable effort to protect students from conditions harmful to learning, or harmful to students' mental health, physical health, or safety, in violation of Florida Administrative Code Rule 6A-10.081(3)(a)1/; intentionally exposed students to unnecessary embarrassment or disparagement, in violation of rule 6A-10.081(3)(e); and, as a result, engaged in personal conduct that seriously reduces her effectiveness as an employee of the Pasco County School District, in violation of section 1012.795(1)(g), Florida Statutes (2011).2/
Findings Of Fact The Respondent is a teacher certified by the State of Florida in the areas of reading and world language-Spanish and held Florida Educator's Certificate 871379 until it expired on June 30, 2013. During the 2011/2012 school year, she was employed by the Land O'Lakes High School (LOLHS) in Pasco County. In January 2012, a former ninth grade pre-International Baccalaureate (IB) student, who had been in the Respondent's pre-IB ninth grade Spanish class earlier in the school year, told the Respondent that she heard a rumor about some current pre-IB students making negative comments about the Respondent's teaching on Facebook, possibly on a Facebook page used by pre-IB students to communicate about class assignments and similar subjects pertinent to the IB program. The pre-IB Facebook page was suggested and administered by a pre-IB student after getting the school's permission. Shortly after it was created, its privacy settings were set to limit access to pre-IB student members only. Former pre-IB students were removed from membership in the Facebook group and no longer could access the page. When told about the rumors, the Respondent asked the former student to accompany her to the office of the assistant principal over world languages to report the rumor. The Respondent wanted the school to block or delete the Facebook page. The assistant principal did not think anything reported to her was actionable, but she asked the student to let her know if she saw anything on Facebook that she considered to be threatening or something the assistant principal should know about. After the meeting, the Respondent asked the student to try to find the Facebook page with the derogatory comments about her. The student tried but could not find anything. As a former pre-IB member, the student no longer could access the pre-IB page. The Respondent decided to try another tactic. On January 30, 2012, the Respondent announced to her second period pre-IB Spanish class that she would be handing out permission slips for a field trip to the new Salvador Dali Museum in St. Petersburg, but that certain students who had made mean, hurtful, derogatory posts about her on the internet would not be getting a permission slip. Four students in the class did not get permission slips. They were upset because they thought they had been embarrassed in front of at least some of the class. At least three of them could not understand why they had been punished, since they could not think of any such posts by them. The incident weighed on their minds, upset, and distracted them during the rest of the school day. The former pre-IB student got a pass from her teacher to visit the Respondent during her fifth period pre-IB Spanish class. When the student arrived, the Respondent handed her a list of pre-IB students and told the student to mark with red dots the names of pre-IB students who could have been the ones supposedly posting derogatory remarks about the Respondent. Then she made an announcement to her fifth period class similar to the announcement to her second period class regarding the field trip permission slips, but this time she named two students who were not going to get permission slips, implying that they were the ones who posted the offending remarks on Facebook. (In fact, the Respondent had no reason to believe those two students did any such thing.) The two students were upset because they had been embarrassed in front of the class and because they could not understand why they had been punished, since they could not think of any such posts by them. One of them recalled agreeing with a post that criticized the Respondent's teaching, but that was all. When that student approached the Respondent for a notebook check, the Respondent handed her a cell phone and told the student to use her ID and password to log on to the pre-IB Facebook page. Feeling intimidated, the student complied, and the Respondent scrolled the Facebook posts for several minutes. When the bell rang and the students left, the Respondent's phone remained logged in to the pre-IB Facebook page. The sixth period was lunch period for the Respondent and her second period class. Four students who had been declined field trip permission slips because of supposed Facebook comments used their lunch period to return to the Respondent's class to defend themselves. One student said he could prove their position that they were innocent, opened Facebook on his cell phone, and handed it to the Respondent. The Respondent spent almost the entire lunch period looking on Facebook. When the period ended, the Respondent asked the student to leave his phone with her. He refused and remained until she returned the phone and told him that he and the others would get their field trip permission slips. As a result, the student was late for his seventh period class. During the day, some of the students reported to their parents what had occurred in the Respondent's classes. Some of them, in turn, contacted the school to complain. The school principal contacted the assistant principal over the IB program and told her to fix the problem by insuring that all students got field trip permission slips and by investigating the matter in cooperation with the School District Employee Relations Office. The next day, the assistant principal told the Respondent that all the students should be given field trip permission slips. She also removed the Respondent from her classroom and made arrangements for a meeting early the following week for the Respondent to discuss the matter with the school officials. The preliminary investigation corroborated the parents' complaints. When the Respondent met with the school officials the next week, she exercised her right not to say anything in her defense. Eventually, the Respondent was suspended pending a decision by the School Board whether to terminate the Respondent or take some other disciplinary action against her. The conduct of the Respondent in regard to the field trip permission slips and Facebook posts very quickly became widely known among her students and their parents. Several students indicated that as a result of the Respondent's conduct, they would not want her to teach them again. In addition, local and even national media broadcast news of the incident, placing the Respondent and the school in a bad light. The Respondent contributed to the media broadcasts by making statements for repetition in the broadcasts. The School Board hearing took place in July 2012. In September 2012, the School Board terminated the Respondent's employment. During her suspension, and at the hearings before the School Board and in this case, the Respondent took the position that her conduct was justified because the assistant principal for world languages expressed serious concerns about cyber-bullying and directed the Respondent to conduct an investigation and report the results (i.e., the evidence she was able to obtain). To the contrary, the evidence was clear and convincing that the assistant principal gave the Respondent no such instruction or said anything that reasonably could be construed as such an instruction. Instead, the Respondent decided to undertake such an investigation on her own. The Respondent also has taken the position, during her suspension and at the hearings before the School Board and in this case, that she never withheld or threatened to withhold field trip permission slips to punish students or to force them to allow her access to Facebook posts, but rather that she simply ran out of permission slips. The evidence to the contrary was clear and convincing. The Respondent also takes the position that she is not responsible for the students missing the educational opportunity of the museum field trip since it was canceled by the school administrators after the Respondent was suspended. It is true that the school administrators made the decision to cancel the trip, rather than allow a substitute teacher to replace her (which was against school policy) or to have a school administrator do so. Regardless, it is clear that no such decision would have had to be made had the Respondent not engaged in the conduct that resulted in her suspension. The Respondent also attempted to portray her actions regarding the Facebook posts as motivated by a strong desire to protect her students from bullying and mean behavior by other students. The clear and convincing evidence was that her primary motivation was to stop her students from saying negative things about her on Facebook. Despite her conduct in regard to the permission slips and the Facebook posts and her untruthfulness in response to the complaints about them, the Respondent has the potential to learn from her mistakes and become a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order: finding the Respondent guilty as charged; and suspending her teacher certificate until June 30, 2015. DONE AND ENTERED this 15th day of January, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2014.
The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2010.
The Issue Whether Petitioner has just cause to terminate the Respondent's employment as an educational support employee.
Findings Of Fact Respondent was employed as a behavioral interventionist with the Palm Beach County School District during the 2000-2001 school year. A behavioral interventionist is a non- instructional employee who works primarily with students receiving services through Petitioner's Exceptional Student Education (ESE) Programs. In addition to monitoring performance and behavior of ESE students, Respondent supervised regular education students who were serving in-house suspensions, performed bus and cafeteria duty, and helped maintain discipline throughout the campus. Respondent also served as an assistant football coach. Respondent received specialized training in order to perform his duties as a behavioral interventionist. He received child development training and attended approximately 12-13 workshops dealing with physical restraint and conflict resolution issues. Respondent is not a member of a collective bargaining unit. At the times pertinent to this proceeding, Student 1, a male, was 17-years old and a junior at Forest Hill. Student 1 is 5'10" tall and weighs approximately 260 pounds. Respondent is 6'3" tall and weighs approximately 250 pounds. Respondent is a former professional football player who routinely lifts weights. On December 11, 2000, between 4:30 p.m. and 5:00 p.m., Student 1 was in the area of the outdoor basketball court watching a basketball game. Student 1 had permission to be on the campus of Forest Hill, but he should not have been in the area of the outdoor basketball court. Respondent was in the weight room at Forrest Hill that afternoon demonstrating weight lifting techniques to a group of his football players. After he completed his weight lifting workout, Respondent went to the outdoor basketball court to play basketball. Respondent began playing basketball with a group of students, including students who did not play football. Student 1 could have played if he had wanted to do so. Student 1 was not playing when the acts at issue in this proceeding occurred. Shortly after the game began, Student 1 was standing off the basketball court observing the game when the basketball ball was thrown out of bounds near him. Respondent walked up to Student 1 and said, "why don't you get the ball fat boy?" In response, Student 1 used profane language and was disrespectful towards Respondent. Respondent reacted by tapping Student 1 on the cheek with his open hand. Student 1 asked Respondent why he hit him, but received no response. As Student 1 attempted to walk away, Respondent tapped him again on the back of the head and the two exchanged words. Respondent was not justified in making physical contact with Student 1. Student 1 again addressed Respondent using profane language. Respondent reacted by taking Student 1 to the ground using a technique that he had been trained to use to restrain students. There was a conflict in the evidence as to whether Respondent placed Student 1 in a chokehold when he took him to the ground. The greater weight of the credible evidence established that Respondent did not use a chokehold on Student 1. There was also a conflict in the evidence as to whether Student 1 had become aggressive and whether Respondent was merely trying to restrain Student 1. The evidence is clear that Respondent physically restrained Student 1 because Student 1 had been disrespectful towards him, not because Student 1 had become combative. Respondent was not justified in physically restraining Student 1. Student 1 was on the ground when Respondent released him from the restraining hold. As Student 1 was attempting to rise, Respondent hit him with his forearm, which forced Student 1 back to the ground. Witnesses at the basketball court told Student 1 to stay down, but he attempted to rise and saw Respondent in a three-point position typically assumed by football linemen. Almost immediately, Respondent came at Student 1 again and forearmed him back to the ground. Student 1 fell back to the ground, biting his tongue as he went down. He then got up and began cursing. After an interval of a few minutes, Student 1 asked Respondent why he had hit him and began to spit in the general direction of Respondent. Respondent, believing that Student 1 was spitting at him, grabbed him in the area of the neck and forced him against the fence surrounding the basketball court. Respondent told Student 1, "Don't play with me boy, I'm not a kid." Respondent was not justified in that use of force against Student 1. The incident lasted over a period of several minutes. Student 2 was present during the entire incident and Student 3 was present during the latter part of the incident (when Respondent grabbed Student 1 by the neck and forced him against the fence). Both witnesses corroborated Student 1's version of the events. No other student witnesses testified at the final hearing. Student 1 complained that afternoon to a coach named Coleman about what had occurred and he also told his mother later that evening when he got home. Student 1 complained to his mother that his neck hurt and she took him to a hospital, where he was diagnosed with a sprained neck. On December 12, 2000, Student 1 and his mother returned to the school and complained to Assistant Principal Mark Sagovac, about what happened the afternoon before. Mr. Sagovac thereafter spoke with Respondent, who did not deny the incident had occurred. Respondent admitted to Mr. Sagovac that he called Student 1 a "fat boy" and asked him to get the ball, which had rolled out of bounds. Respondent further told Mr. Sagovac that he pushed Student 1 to the ground with his forearm and forced Student 1 up against the fence because he felt Student 1 was threatening him. After speaking with Respondent, Mr. Sagovac interviewed Student 1 again and spoke to other witnesses. Some time thereafter a meeting was held between Student 1, his mother, Respondent, Mr. Sagovac, and Assistant Principal Green, who is also an assistant principal assigned to Forest Hill. The incident was discussed again and at one point, Respondent apologized to Student 1 and his mother. After the meeting concluded, Mr. Sagovac issued to Respondent a verbal reprimand with written notation for the actions he took on December 11, 2000. Prior to serving the Respondent with the verbal reprimand with written notation, Sagovac did not consult with his principal or anyone in the Petitioner 's Personnel Office or Office of Professional Standards to determine if he was complying with policy or if he was following accepted personnel practice concerning the contemplated discipline. Mr. Sagovac was not complying with school policy when he issued the verbal reprimand with written notation. Mr. Sagovac did not have the authority to discipline Respondent. Shortly after the conclusion of the meeting attended by Student 1, his mother, Respondent, and Mr. Sagovac, a complaint was made to the school district's police department concerning the December 11, 2000, incident. Based upon the complaint, a criminal investigation into Respondent's actions was initiated. There was no evidence as to the status of any criminal charges presented at the final hearing. Petitioner's Office of Professional Standards received information concerning the criminal investigation, which caused it to open its own administrative investigation. After the Office of Professional Standards received the police report and the attached documents, the case was assigned to an investigator. During the Petitioner's investigation, Respondent was placed on administrative leave with pay and assigned to duty at his home. This assignment became effective February 1, 2001. After Petitioner's Office of Professional Standards completed its investigation, it prepared a report of the incident and, consistent with its rules, submitted the case for review to a case management committee. Case management review is a process whereby approximately a dozen high level employees working for the district meet at the direction of the Superintendent to review pending personnel cases which may result in the suspension of employment without pay or the termination of employment. Respondent's case management committee determined that probable cause existed to sustain the allegation Respondent used inappropriate physical force on the student in question. Once probable cause was found, it further determined that the level of the force used warranted a recommendation that Respondent's employment be terminated. Based upon the case management committee's recommendation to terminate Respondent for having engaged in inappropriate physical force on a student, Superintendent of Schools Arthur C. Johnson notified Respondent by letter dated May 8, 2001, that he would recommend to the School Board at its meeting to be held May 16, 2001, that Respondent's employment be terminated and that he be suspended without pay pending the completion of the proceedings to terminate his employment. On May 16, 2001, the School Board voted to accept the Superintendent's recommendation. It is the policy of the Petitioner that no employee is to use physical force with a student unless the employee is breaking up a fight, acting in self-defense, or protecting the student from hurting him or herself.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002.
The Issue The issue is whether Respondent made inappropriate comments and behaved inappropriately with his tenth grade students, so as to be guilty of gross immorality or an act involving moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes (2003); failing to maintain his primary professional concern for the student and the development of the student's potential and failing to exercise the best judgment and integrity, in violation of Florida Administrative Code Rule 6B-1.001(2); failing to maintain the respect and confidence of his colleagues, students, parents, and other members of the community and failing to achieve and sustain the highest degree of ethical conduct, in violation of Florida Administrative Code Rule 6B-1.001(3); failing to make a reasonable effort to protect his students from conditions harmful to learning or the students' mental or physical health or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a); intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e); harassing or discriminating against a student due to race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and failing to make reasonable effort to assure that each student is protected from harassment or discrimination, in violation of Florida Administrative Code Rule 6B-1.006(3)(g); and exploiting a relationship with a student for personal gain or advantage, in violation of Florida Administrative Code Rule 6B-1.006(3)(h). If Respondent is guilty of any of these charges, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate 263775, which covers the areas of health education, biology, and physical education. His certificate is valid through June 30, 2005. Respondent has taught for nearly 40 years. Since 1984, Respondent has taught continuously at Miami Coral Park Senior High School, where he teaches biology and health. Respondent jokes in class and sometimes banters with his students. One day early in the school year, when students were discussing their ethnic backgrounds, Respondent asked M. Z., a tenth grade student, about her background, and she replied that she was Cuban. M. Z.'s last name is a name traditionally associated with other ethic groups, so, when he heard the student state that she was Cuban, Respondent replied, "Oh, yeah, I can see you're Cuban." By this comment, Respondent was attempting to make a joke along the lines that M. Z.'s last name did not suggest that her background was Cuban. M. Z., who did not offer much detail about the incident, did not feel embarrassed by the comment itself, but felt embarrassed by what she believed to be Respondent's gaze at her buttocks as he uttered his reply. Respondent claims not to have looked at M. Z.'s buttocks when he made the comment. Two student witnesses who heard the exchange testified that Respondent did not look at M. Z.'s buttocks when he made his joke. It is possible that M. Z. mistakenly believed that Respondent was looking at her buttocks when he spoke. It is impossible to find by clear and convincing evidence that Respondent was looking at M. Z.'s buttocks when he attempted his joke. M. Z. testified that Respondent directed the female students to make the coffee, but admitted that he never explained why he did so. However, the record fails to establish that Respondent required any students to make coffee. M. Z. testified that she was making coffee in the classroom when Respondent opened a door to the coffee-making area and said, "Now I have you in the back room." M. Z. testified that this comment made her feel uncomfortable. Again, though, M. Z. provides little detail about the incident, and her demeanor did not suggest that the matter was of importance to her. The record suggests that Respondent was trying, again unsuccessfully, to establish some joking rapport with this student. He was not sexually harassing her, and M. Z.'s transient embarrassment quickly passed. M. Z. testified that Respondent sang a once-popular song, "Sugar, Sugar, Honey, Honey," but substituted "horny, horny" for "honey, honey." The record does not support this testimony. Respondent admits singing the song, but denies changing the lyrics. It is impossible to find whether Respondent sang the song and changed the lyrics. M. Z. testified that she did not recall any other comments and admitted that Respondent was "probably" joking around when he made the comments that he did. She testified that she did not recall Respondent saying anything about her parents' names. M. Z. remained in Respondent's class only a couple of weeks, at which time the school transferred her out of Respondent's class at the request of M. Z.'s parents. The possibility arises that M. Z.'s embarrassment at Respondent's attempts at humor was a factor in her transfer. However, M. Z. provided little basis to support such a reason. M. Z. was mainstreamed into Respondent's regular-education class, and transition issues could have as easily been a factor in M. Z.'s need to try a different classroom. Again, it is impossible to determine that Respondent's poor attempts at establishing a joking rapport with M. Z. were a material cause in her transfer out of his class. M. A. did not testify. However, Respondent testified that he and a male student entered a bookroom and found her and a chemistry teacher present. Respondent testified that he stated to the male student, evidently so as to be heard by M. A., "we've got her now." However, Respondent testified that M. A. and the male student took the comment as a joke. As for the allegation about the hand, palm up, on the stool, Respondent testified only that he touched the top of a stool, gesturing to M. A. to come up to his desk, sit down, and spell her name for him. As described by Respondent and his student witnesses, Respondent in the classroom is a "grandfatherly" figure who develops a joking rapport with the students. One student described him as the best teacher that she had ever had. An especially credible student witness called by Respondent, N. A., testified that a school administrator investigating this matter said to her that, if she ever changed her mind about what she had observed about Respondent in the classroom, he might help her with her grades. On the other hand, another especially credible student witness called by Petitioner, J. C., testified that she did not know how to react to Respondent's classroom banter. Evidently backing off earlier statements, J. C. testified that she "knew him better now" and understood that Respondent had no bad intentions in his remarks. The record establishes two comments by Respondent-- both to the effect that he had a female student where he wanted her, when he found her in a small room. Although the circumstances surrounding these comments clearly preclude a finding that Respondent was literally threatening a sexual assault upon these students, such humor is inappropriate. Respondent's sense of humor obviously requires some thoughtful students, such as J. C., to take time to gain the measure of his comments--a process that M. Z. apparently undertook also, after she transferred out of Respondent's class. Perhaps most students can view Respondent's humor as they probably view his musical taste--dated, but consistent with the obvious fact that two generations separate the grandfatherly Respondent from his students. However, Respondent's professional obligations extend to all of his students, not merely those students who are capable of adjusting to his sense of what is funny. As already noted, though, the record fails to establish by clear and convincing evidence the material allegations of the Administrative Complaint.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 10th day of December, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 1244 Turlington Building 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 1244 Turlington Building 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Mark Herdman Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316
The Issue Whether Petitioner, Orange County School Board (School Board), established "just cause" to terminate Respondent's employment as a teacher.
Findings Of Fact The School Board is responsible for the operation, control and supervision of free public schools in Orange County, Florida. The School Board's responsibilities include the hiring and termination of school personnel. In December 2012, Ginchereau was teaching mathematics at Maitland Middle School. He has been a teacher in the Orange County Public School District for approximately 14 years, and holds a professional services contract with the School Board. Ginchereau's employment is governed by the Collective Bargaining Agreement between the School Board and the local teacher's union, the Orange County Education Association, Inc. Pursuant to Article XII section (A)(2), the Collective Bargaining Agreement, a teacher may only be discharged for "just cause." The School Board has a specific policy concerning the private use of internet and social networking, Management Directive A-9, Employee Use of Technology.2/ Management Directive A-9 informs School Board employees that they should not engage in social media with Orange County Public School students, unless the student is their child or the social media contact is related to “class, athletic or extracurricular activity,” and that employees are to access the School District’s technology resources and databases “for assigned responsibilities.” Orange Cnty. Pub. Sch. Dist. Mgmt. Directive A-9, §§ 2(e)(i), (ii) and 3. On the morning of December 13, 2012, Ginchereau opened his Facebook page, and read a general post from Elaina J., a former student that Ginchereau had taught at Avalon Middle School during the 2010-2011 school year.3/ Based on the general age of middle school students in eighth grade as 13 or 14 years old, it is reasonable to conclude that at the time of this incident, Elaina J. was either 15 or 16 years old in December 2012. Ginchereau’s unrebutted testimony is that he accepted a friend request from Eliana J., at a time when he knew she was no longer a student in the Orange County Public School system. The School Board failed to introduce competent evidence showing that on December 13, 2012, that Eliana J. was an Orange County Public School District student.4/ The Facebook exchange between by Elaina J. and Ginchereau is the following: E.J.: Good morning, woke up in a good mood. Who's going to be the first to ruin it? G.: Not me! E.J.: Never you!!! You always made my mornings G: Awww! Thank you! Mrs. Melodie Robelo still talk about you often. Hope you are doing well. E.J.: Awh I miss you two so much, ill come visit soon ? hope you both are doing well also G: Cool ....but you should know we aren't at Avalon anymore. We both moved to Maitland Middle. E.J.: Is that far from Avalon? G.: Not too bad . . . you can google it . . . 1901 Choctaw Trail Maitland 32751 E.J.: Okay I promise ill come see you soon! The only evidence showing when these postings occurred is from Ginchereau. Ginchereau testified that he initially responded to Eliana J.'s post in the morning before school started, and later between his first and second period classes. Beside the text exchange between Ginchereau and Eliana J. are the "thumbnail" photographs from Elaina J.'s and Ginchereau's Facebook pages. These small photographs are present to the left of the message in order to show who is writing the message. Ginchereau's thumbnail photograph shows a photograph of him with an eighth grade football team that he coaches. Eliana J's thumbnail photograph shows a picture of her and a friend in bikinis. Ginchereau's first two classes on December 13, 2012, were Algebra I Honor classes. At the conclusion of the first class, the bell rang and the students had approximately four minutes to go to their next class. Between the first and second class periods, Ginchereau opened his Facebook page in order to post a message to Elaina J., for the purpose of providing her the address of Maitland Middle School. Ginchereau's explanation that he went on his Facebook page in order to provide Elaina J. with information so that she could "volunteer" in his classroom is not credible. The text exchange between Ginchereau and Eliana J. does not mention any student "volunteer" activity. Rather, Ginchereau was providing Eliana J. his and another teacher’s work location in order to facilitate a visit. Unknown to Ginchereau, when he opened his Facebook page, the screen from the computer was projected onto the classroom's smartboard, and visible to the students inside the classroom, including the thumbnail photographs. Some of the students entering the classroom remarked that they did not know that Ginchereau had a Facebook page. In response, Ginchereau quickly closed the Facebook page and placed school work on the smartboard. Ginchereau, thinking the incident was behind him, moved to the classroom door to monitor the hallway. While standing in the hallway, Ginchereau heard one of the students state that Ginchereau had a Facebook page with the picture of a "nude girl." Realizing that such a claim would be toxic, Ginchereau quickly disputed the statement. Further, he decided to show exactly what was displayed on the smartboard in order to dispel any ill-founded rumor before it left the classroom. Ginchereau signed onto his Facebook account and went to Eliana J.'s Facebook page. However, instead of showing the Facebook messaging with the thumbnail photographs, Ginchereau went to Eliana J.'s Facebook page and scrolled on the photographs to find the correct photograph. Some of the photographs showed Eliana J. wearing short "shorts," clothing exposing her midriff, and lying on a bed. As he scrolled through approximately four to six photographs, one of the 13-year-old boys, in a manner consistent with an immature adolescent boy, hooted and went to the smartboard pretending to touch the girl in the photograph. As he attempted to find the correct photograph, Ginchereau told the boy to sit down, and then remarked, while at his desk, "if [the boy] liked this photograph, then he will love the next one." Finally, Ginchereau identified the correct photograph with two young girls in bikinis projected onto the smartboard, but unlike a thumbnail, the photograph now filled the smartboard. While the photograph dispelled the notion that the girl was nude, Ginchereau heard one of the students state that "if she dressed like the girl, her mother would call her a slut." As these events escalated, Ginchereau made the decision to have a "teachable moment." According to Ginchereau, he stated: Look, you don’t know this girl and I just heard, you know, comments like “slut” and “whore” coming out of your mouths. You guys don’t know the history of this girl, you don’t know about her taking care of her brother when her mom had surgery. Ginchereau then informed the students that it was important to be careful about the photographs that one posts on social media sites. He cautioned the students that employers or college admission people could make incorrect judgments about them based on the photographs. Further, Ginchereau talked about dress code and why it was important, even though students sometimes disagreed with it. In order to demonstrate his upholding of the dress code, Ginchereau referenced that the girl in the photograph had once attempted to volunteer as an assistant in his class, but had shown up in the class wearing a white shirt that was clinging to her body, after being caught in a rain storm. Ginchereau sent the former student home because her clothing did not meet the middle school dress code. Finally, during his "teachable moment," Ginchereau stated that the student pictured on the board had been a poor student in his class, but still considered him a favorite teacher. This regrettable turn of events occurred approximately for the first three to five minutes of the algebra class. Because Ginchereau's discussion occurred while students were transitioning into the class, some of the students did not hear the full discussion. After closing the Facebook page, Ginchereau taught the class without further incident. After the class, Ginchereau decided to inform the principal of the school, Mr. Ronald Maxwell (Principal Maxwell), about the Facebook incident. Ginchereau called Principal Maxwell's office, but was told that he was not available. Later in the day, Ginchereau attempted to call or see Principal Maxwell again, but was again told that he was not available. The next day, on December 14, 2012, Ginchereau sent Principal Maxwell an e-mail that outlined what had occurred in the class the day before. Ginchereau sent the e-mail before he learned about any parent complaint concerning the Facebook incident. That same day, Principal Maxwell received a parent complaint concerning the Facebook incident, and he directed Dr. Paul Wilhite (Dr. Wilhite), the assistant principal, to take students' statements about what had occurred on December 13, 2012, in Ginchereau's class. Dr. Wilhite collected 19 student statements concerning what occurred in the classroom. The statements ranged from students who did not see anything to students describing how Ginchereau stated that if his daughter dressed like the one in the photograph “he would kill her.” Some of the students indicated that they found the photographs displayed in the classroom "inappropriate" and they felt "uncomfortable" about the pictures and discussion while others did not care. Ginchereau met with Principal Maxwell and Dr. Wilhite and provided an explanation that was consistent with his earlier e-mail. Further, Ginchereau provided Principal Maxwell with a copy of the Facebook exchange and showed him the photographs shown in the classroom. At all times, Ginchereau was cooperative and accepting responsibility for his error. Ginchereau’s social media messaging with Eliana J. violated Management Directive A-9 by using the school’s internet for personal use, rather than his assigned responsibilities. Ginchereau's showing of the photographs from Eliana J.'s Facebook page was inappropriate within the context of a middle school classroom and showed poor judgment. Ginchereau's "teachable moment" showed poor judgment and exacerbated his mistake of accessing Facebook between the class changes. Ginchereau has been a teacher with the Orange County Public School District since 1999. He holds certificates in teaching mathematics, language arts, and special education students. Further, it is undisputed that Ginchereau has no prior disciplinary history in his teaching career.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board established “just cause” to discipline Mr. Ginchereau’s employment as a teacher. The undersigned recommends that Ginchereau’s suspension without pay be upheld to date; and that he be returned to his professional services contract, and given remedial education on the proper use of the School District’s technology. DONE AND ENTERED this 31st day of October, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2013.
Findings Of Fact The Respondent holds Florida Teacher's Certificate No. 607875 with a validity period from July 1, 1986 through June 30, 1991. The Respondent was employed by the Pinellas County School Board at Largo High School from the beginning of the 1987- 88 school year through March 23, 1988. In September, 1987, the Respondent commented that Erin Hawkins, a female student at Largo High School, should wear shorter skirts and touched her on the leg. The Respondent admitted to making a comment about the length of Miss Hawkins' skirt and to pinching her on her leg. As a result of this incident, the Respondent was counselled at length by Judith Westfall, principal at Largo High School, and Patricia Palmateer, Assistant Principal at Largo High School, regarding the need to refrain from making inappropriate comments to students. Ms. Westfall and Ms. Palmateer cautioned the Respondent to keep discussions with students on a professional level; to maintain professionalism whenever the Respondent touched a student; and to refrain from being alone with a student in the classroom. Conference summaries and the Respondent's written statement concerning the incident were placed in Respondent's personnel file. Although no additional disciplinary action was taken at that time, the Respondent's pinching a student on her leg, even for the alleged purpose of having the student move away from Respondent's desk, was not an appropriate method of working with female or male students.1/ In February, 1988, as Tara Ward, a female student at Largo High School, was leaning over a table, the Respondent stated "nice view, Miss Ward." At a subsequent conference between the Respondent, Ms. Westfall, and Ms. Palmateer, the Respondent admitted mailing the comment for the alleged purpose of correcting Miss Ward's posture.2/ The Respondent's comment was inappropriate even accepting his asserted motive. As a result, Ms. Westfall and Ms. Palmateer again cautioned the Respondent about the need to maintain professionalism in comments made to students and about the need to avoid being in a classroom alone with a student. In March, 1988, Cindy Shinall was a senior at Largo High School In the program for Educable Mentally Handicapped (EMH) students. The EMH program is for students whose I.Q.'s range between 50 and 72. In Miss Shinall's case, her grade level in March, 1988, would have been somewhere between third and fifth grade abilities. Miss Shinall was motivated to improve, eager to assist teachers, well-mannered, and considerate of others. The school had no disciplinary problems with Miss Shinall. Miss Shinall was an honest person who would frequently speak up when she was aware that other students were breaking school rules. On March 9, 1988, Miss Shinall was a student assistant for Carolyn Underwood during sixth period. As a student assistant, Miss Shinall would run errands for Ms. Underwood, including going to the school office. During the course of running errands for Ms. Underwood, Miss Shinall was permitted to ask other teachers if they had errands for her to do. In fact, Ms. Underwood encouraged Miss Shinall to take the initiative in seeking work from other teachers. On March 9, 1988, Ms. Underwood sent Cindy Shinall on an errand in the vicinity of the school office. Miss Shinall encountered the Respondent in the hallway coming from the office outside the double doors leading into the "pod" where the Respondent's classroom was located. She followed the Respondent into the pod and asked him if there was anything she could do for him. The Respondent replied "yes" and escorted Miss Shinall into his classroom. The Respondent did not have class during sixth period, and so he and Miss Shinall were alone in the classroom. Respondent asked Miss Shinall to "give me a hug," and she did. Respondent then kissed Miss Shinall. In his own words, he then "lost control" and began to kiss her and "felt her up." He kissed her on her neck, touched her buttocks, put his hand under her shirt and her bra on her left breast, and sucked her left breast. In an effort to escape from the Respondent, Miss Shinall told him she had errands to complete for Ms. Underwood. At this point, the Respondent grabbed Cindy Shinall's hair behind her head and pulled her head back, asking her to promise to return. Miss Shinall went directly from the Respondent's classroom to a girl's restroom, where she was found, crying, by a Ada Bell, a fellow student. She told Miss Bell that the Respondent had touched her. At the time she spoke with Miss Bell, Miss Shinall was crying very hard, almost to the point that Miss Bell was unable to understand what she was saying. Miss Bell understood clearly, however, that the Respondent had done something to Miss Shinall that she did not want him to do. Immediately thereafter, while still in the girls' restroom, and while still visibly upset and crying, Miss Shinall related the incident to her friend Aimee Hall. Miss Hall then took Miss Shinall to their teacher, Carolyn Underwood. At that time, Miss Shinall was still upset and pulling her hair and twitching from side to side. She was upset to the point of being almost incoherent. She told Ms. Underwood that the Respondent had kissed her, touched her breasts, and pulled her hair back. She then recounted the events again to Ms. Underwood and to another teacher, Ms. Silva. Ms. Underwood immediately took Miss Shinall to the administrative offices and contacted Ms. Westfall and Ms. Palmateer. Ms. Palmateer was in the school cafeteria when notified by Ms. Underwood. She went directly to her office where she spoke with Miss Shinall. Miss Shinall told Ms. Palmateer that the Respondent had kissed her, felt her breast underneath her clothes, and touched her buttocks. Miss Shinall told Ms. Westfall that Respondent had kissed her, touched her breast underneath her bra, touched her buttocks, and pulled her hair, asking her to promise to come back. She related the incident to Ms. Westfall within one hour of the incident. At the time she related the events to Ms. Westfall, Miss Shinall was still visibly upset and embarrassed to talk about the incident. As a result of the incident of March 9, 1988, the Respondent tendered his resignation to the Pinellas County School Board, and the resignation was accepted. The Respondent later tried unsuccessfully to rescind the resignation. As a result of the incident of March 9, 1988, Cindy Shinall was the subject of rumor, gossip, and disparaging remarks among the students at Largo High School. She suffered embarrassment and disparagement. The Respondent's conduct on three separate occasions--to wit: in September, 1987, when he made an inappropriate comment about a female student's dress and pinched her leg; in February, 1988, when he made an inappropriate comment about a female student's posture; and in March, 1988, when he kissed and fondled a female student--seriously reduces the Respondent's effectiveness as an employee of the school district. The Respondent is unable to deal with his students in a professional manner, and the school district's ability to trust the Respondent with female students has been substantially diminished. Female students in the Respondent's classes and under his control would be "at risk." The Respondent's conduct on those three separate occasions also constitutes a failure to make reasonable efforts to protect students from conditions that were harmful to their learning, health, or safety. Indeed, the Respondent actively created situations which jeopardized the learning, health, and safety of his students. The Respondent's conduct on those three separate occasions also constitutes conduct which intentionally exposed the Respondent's students to unnecessary embarrassment or disparagement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's Florida teaching certificate be revoked. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1989.
