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 Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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, 2015.
The Issue Whether just cause exists for Petitioner to suspend Respondent, a teacher, for 30 days without pay for pushing a student.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed by the School Board as an eighth-grade teacher at NDM, a public school in Miami-Dade County, Florida. Respondent has taught for the School Board for 15 years without receipt of any prior discipline. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. The proposed discipline is based upon conduct occurring on Thursday, March 4, 2014. On that day, 14-year-old eighth-grade student, D.H., entered Respondent's classroom approximately ten minutes late. Respondent told D.H., “You are going to jail.” When D.H. asked why and said he had done nothing wrong, Respondent did not answer and instructed D.H. to immediately leave the classroom. This interaction was observed by other students in the classroom. D.H. exited to the hallway outside of Respondent's class. At or about this same time, substitute teacher Green was walking several students who had been disruptive to other classrooms. Green took a female student to Respondent's class. Green saw D.H. and told him to go into the classroom. Green opened Respondent's classroom door and asked if she could leave the female student with Respondent and he agreed. While Green and Respondent were talking, D.H. attempted to re-enter the classroom as directed by Green. Respondent stood in front of D.H. and told him he was not allowed to enter. D.H. asked why and said he was going to enter. Respondent replied, “You'd have to go through me first. I wanna see that.” D.H. replied, “Man, I ain't studying you, I don't even see you.” Respondent and D.H. then got in a heated verbal exchange. Green tried unsuccessfully to have Respondent calm down and go back in the classroom. Respondent taunted D.H. by saying he was waiting for D.H. to throw the first punch and that he would give D.H. a “beat down.” Respondent escalated the situation by calling D.H. “weak” and saying “You have no power. That's why you always get beat up.” D.H. was visibly upset and Green kept him separated from Respondent. Respondent went back into the classroom and closed the door, but continued making comments, gestures, and laughing at D.H. in front of his classmates. D.H. remained in the hall yelling. Respondent opened the door again and said if D.H. put his hands on him, he would give him a beat down. D.H. moved from behind Green, towards Respondent, and got a few inches from him and said, “I'm right here. What are you going to do?” D.H. did not touch Respondent. Respondent hit D.H. hard with two open hands to D.H.'s chest causing D.H. to stumble several steps and fall into Green. At the time of this incident, Respondent weighed 220 pounds. D.H. was 14 and weighed approximately 140 pounds. Green told another student to call security and then convinced Respondent to go back in his classroom. Green took D.H. to her classroom. D.H. was not physically injured, but was embarrassed. As a result of the investigation, Respondent was suspended without pay for a period of 30 days for misconduct in office, in violation of State Board of Education and School Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Richter Flambert guilty of misconduct in office, suspending his employment without pay for a period of 30 school days, and placing him on probation for a period of one year. DONE AND ENTERED this 11th day of December, 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 11th day of December, 2015.
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent’s employment as a teacher.
Findings Of Fact The School Board is a duly-constituted governing body charged with the duty to operate, control, and supervise public schools within Polk County, Florida. See Art. IX, § 4(b), Fla. Const.; and §§ 1001.30 and 1001.33, Fla. Stat. At all times material to this case, Respondent was employed by the School Board as a teacher at Winter Haven High School. As a member of the School Board’s instructional staff, Respondent’s employment was governed by Florida law, as well as a Teacher Collective Bargaining Agreement (“Bargaining Agreement”), dated 2013-2016 and amended on April 18, 2015, in accordance with section 1012.33, Florida Statutes. The Bargaining Agreement was entered into between the School Board and the Polk Education Association, Inc., as representative of the teaching personnel employed by the School Board. Respondent was placed at Winter Haven High School as a Spanish teacher at the beginning of the 2014-2015 school year. Respondent was assigned six classes. She taught Spanish I, Spanish II, and AP Spanish. Several of Respondent’s classes were large, including over 35 students. Based on her limited supervision, Gina Williams, the Principal of Winter Haven High School, considered Respondent to be a very good AP Spanish teacher who did very well with those students. Prior to her employment at Winter Haven High School, Respondent taught for approximately 28 years. On June 9, 2015, then School Board Superintendent, Kathryn M. LeRoy, issued a letter (the “Termination Letter”) notifying Respondent that she was immediately suspended with pay from her teaching position. Superintendent LeRoy added that she would recommend Respondent’s termination at a School Board meeting to be held on June 23, 2015. The Termination Letter further stated that Superintendent LeRoy had determined that certain of Respondent’s actions constituted serious misconduct. Based on her findings, Superintendent LeRoy found “just cause” for Respondent’s termination as a School Board employee.4/ In the Termination Letter, Superintendent LeRoy described three incidents that led to her decision. Superintendent LeRoy based her recommendation to terminate Respondent on two of these incidents. The factual basis for each incident as supported by the competent substantial evidence is set forth below: Respondent’s Prior Discipline The Termination Letter cited an incident that occurred on January 20, 2015, for which the School Board previously disciplined Respondent. At the final hearing, the School Board represented that it did not consider this incident as a ground for Respondent’s dismissal. The School Board referenced the prior discipline to show its progressive discipline steps in compliance with the Bargaining Agreement. (Termination is step four in the progressive discipline schedule listed in the Bargaining Agreement.) The facts regarding this prior disciplinary action are included in this Recommended Order simply to provide background information and context for the School Board’s ultimate decision to dismiss Respondent. On January 20, 2015, Respondent fell asleep at her desk during her last class of the day. Respondent was showing a movie to her Spanish I class. Eventually, her students noticed that she was asleep. They became loud and disorderly. Several students used their cell phones to photograph and video-record Respondent sleeping. Despite the commotion, Respondent remained asleep for approximately 30 to 45 minutes. Respondent explained that she fell asleep due to prescription pain medication that made her very drowsy. Principal Williams, determined that the seriousness of the situation supported a suspension without pay (step three in the Bargaining Agreement’s progressive discipline schedule). On January 26, 2015, Principal Williams sent a letter to Superintendent LeRoy recommending Respondent be suspended. By letter, dated February 5, 2015, Superintendent LeRoy suspended Respondent without pay for five days.5/ Respondent testified that she had never been disciplined in her teaching career prior to this incident.6/ The First Basis for Dismissal7/ On February 19, 2015, Paula Northern, the Winter Haven High School Dean of Students, was conducting her regular rounds of the school buildings assigned to her. Upon reaching Respondent’s classroom, Ms. Northern observed Respondent confronting one of her students outside her classroom. Respondent was questioning the student, J.I., about the school’s investigation of the sleeping incident on January 20, 2015. Respondent pressed J.I. to tell her what he told Principal Williams in the course of the investigation. J.I. recalled that Respondent’s questioning made him feel “uncomfortable.” Ms. Northern commented to Respondent that it was “unethical” for her to speak to a student in such a manner. Respondent retorted that what the school administrators were doing was unethical. Ms. Northern then stepped into the Respondent’s classroom to calm her students down. Ms. Northern feared that Respondent’s students would become “uncontrollable” in her absence. Respondent followed Ms. Northern, and, in a loud voice and in the presence of her students, demanded that she vacate the classroom. When Ms. Northern did not immediately leave, Respondent, in front of her students, called the teachers’ union. Respondent complained over the phone about Ms. Northern’s presence in the classroom. At the final hearing, Respondent explained that she was not “interrogating” J.I. on February 19, 2015. She believed that the situation was overblown. In addition to the above episode, during the school’s investigation into the sleeping incident, several of Respondent’s students reported that Respondent used profanity in her classroom. On other occasions, these students recalled Respondent making disrespectful comments about school administrators. Several students divulged that Respondent uttered unflattering remarks about Principal Williams. Students also complained that Respondent discussed her personal problems during class time. At the final hearing, Respondent conceded that she was frustrated with her seventh-period class because of her students’ disrespectful and unruly behavior. However, Respondent denied ever calling school administrators derogatory names in her students’ presence. The Second Basis for Dismissal Juan Seda was (and is currently) the Director of ESOL for the school district. At the request of Jacqueline Bowen, the school district’s Senior Director for reading and writing, Mr. Seda visited Respondent’s classroom to observe her teaching methods, performance, and student interaction. On March 11, 2015, Mr. Seda sat through portions of two of Respondent’s Spanish classes (AP Spanish and Spanish I). He watched approximately 20 minutes of each class. Mr. Seda reported that, upon first entering Respondent’s classroom, he found the students unattended. At her students’ beckoning, Respondent emerged from a classroom closet. During his brief observation, Mr. Seda witnessed Respondent leave the classroom to speak to someone in the hall thereby leaving her students unattended. He also observed Respondent request a student leave the classroom to retrieve some materials from Respondent’s car. Mr. Seda determined that Respondent was not using prepared lesson plans in either Spanish class. He also concluded that Respondent did not possess any instructional materials. Mr. Seda found that Respondent’s teaching method did not have any structure. Consequently, Respondent did not appear to be following proper state standards for her subject. Mr. Seda also observed that Respondent’s demeanor toward the students was “unpleasant.” Her students were not engaged in the lesson. Mr. Seda did not observe any positive interaction between Respondent and her students. In addition, Mr. Seda was concerned that the periods when Respondent left her classroom unattended posed student safety issues. Following his observations, Mr. Seda prepared a report for Ms. Bowen, dated March 11, 2015. Mr. Seda concluded that Respondent’s students were not receiving proper instruction in Spanish. Mr. Seda was concerned with Respondent’s instructional structure. Mr. Seda concluded that immediate action was needed to prepare Respondent’s students for their end-of-course Spanish examinations. (Mr. Seda conceded that he did not know the final pass rate of Respondent’s students following their 2015 end-of- course exams, or whether Respondent’s students experienced a higher failure rate than other Spanish classes in the school district.) Mr. Seda recommended that Respondent immediately be removed from the classroom and a bilingual substitute assigned in her place. Mr. Seda also urged after-school tutoring be made available for Respondent’s students to help them catch up with their Spanish lessons. At the final hearing, Respondent explained that she was feeling very sick the day Mr. Seda observed her class. Consequently, she forgot to bring in her lesson plans from her home. Regarding her students’ possible difficulties with their end-of-course exams, Respondent expressed that her students have always performed well. Based on the evidence and testimony presented during the final hearing, the School Board proved, by a preponderance of the evidence, that Respondent committed serious misconduct in violation of rule 6A-5.056. Accordingly, “just cause” exists, pursuant to section 1012.33, for the School Board to terminate Respondent’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order upholding its suspension of Respondent, Ana Balmond, and terminating her employment. DONE AND ENTERED this 11th day of May, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 11th day of May, 2016.
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1999.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, with just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing, the factual stipulations of the parties, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. At all times material to the instant case, Respondent was an annual contract employee of the School Board occupying a paraprofessional position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Respondent's employment with the School Board began on October 2, 1987, when he was hired as a part-time custodian and assigned to Hialeah Middle School (HMS). He remained a part-time custodian at HMS until 1989, when he became a teacher aide at the school. He was a teacher aide at HMS from 1989 to 1992. In 1992, he filled a teacher assistant position at the school. He stayed in that position until he was administratively reassigned in April of 1994, following the incident which led to the initiation of the instant disciplinary proceeding. As a teacher assistant at HMS during the 1993-94 school year, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1991, through June 30, 1994 (UTD Contract). 2/ Article IV of the UTD Contract addressed the subject of "employer rights." Section 1 of Article IV provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XIX of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XIX provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Article VII of the UTD Contract addressed the subject of a "safe learning environment." Section 1, paragraph A, of Article VII provided as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive b havior be dealt with safely, fairly, consis- tently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph B, of Article VII provided, as follows: Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Main- taining a Safe Learning Environment and, by reference, are made a part of this Contract. Guideline No. 4 of the School Board's Procedures for Promoting and Maintaining a Safe Learning Environment (School Board's Procedures), which were incorporated by reference in Section 1, paragraph B, of Article VII of the UTD Contract, addresses the subject of "child abuse" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE Section 415.504, Florida Statutes, requires mandatory reporting of all cases of child abuse. This statute applies to suspected or confirmed reports against any person, regard- less of occupation, who is alleged to be involved or any person who is alleged to have committed any act of child abuse. School personnel are not exempted from mandatory reporting of child abuse even when a fellow employee is suspected or confirmed as the abuser. WHEN IN DOUBT, REPORT ... CHILD ABUSE Child abuse is defined to include harm or threatened harm to a child's health or wel- fare and/or willful or negligent acts which result in: neglect; malnutrition; sexual abuse; physical injury; mental injury; or failure to provide sustenance, clothing, shelter, or medical treatment. Any person, including, but not limited to, physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been a subject of child abuse, shall report this information as indicated in the procedures outlined in this guideline. Knowing and willful failure to report sus- pected or confirmed abuse, and knowing and willful prevention of another from making such a report, is a crime punishable by up to two months in jail and up to a $500 fine, Sections 775.082 and 775.083, Florida Statutes, and may be subject to disciplinary action of Dade County Public Schools. It is suggested that once a report is made, the principal or appropriate school administrator be notified. PROCEDURES . . . SCHOOL RELATED CHILD ABUSE REPORTING . . . Anyone aware of suspected or confirmed child abuse committed by School Board employees acting in their official capacity, shall immediately make a report to the principal or designee who shall immediately make a report to the Dade County Public Schools Police and the Region Office. Reasonable Force and Child Abuse. In some instances, a need may exist to differentiate between reasonable force and child abuse. Florida Statute 232.27 provides that: Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned by the princi- pal or designee and shall keep good order in the classroom and in other places in which the teacher or other staff member is assigned to be in charge of students... Florida Statute 232.275 provides that: ...Except in the case of excessive force or cruel and unusual punishment, a teacher or other staff member, a principal or designee, or a bus driver shall not be civilly or criminally liable for any action carried out in conformity with the state board and district school board rules regarding the control, discipline, suspension, and expulsion of students... An administrator must report to Dade County Public Schools Police and the Region Office all cases involving Board Employees where: excessive physical force or physical contact that was used was greater than necessary use of unauthorized physical action results in injury to a student corporal punishment is administered to a student Guideline No. 5 of the School Board's Procedures addresses the subject of "illnesses and injuries to students" and provides, in part, as follows: CURRENT LAW AND/OR PRACTICE All employees responsible for supervision of students and student activities are to take precautions to protect the life, health, and safety of every student in an effort to reduce or eliminate accidents, injuries, and illnesses. . . . Guideline No. 9 of the School Board's Procedures addresses the subject of "corporal punishment" and provides as follows: CURRENT LAW AND/OR PRACTICE Corporal punishment is prohibited in the Dade County Public Schools. This prohibition extends to parents or guardians on school grounds. Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), Florida Statutes, defines corporal punishment as: ... the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principal as may be necessary to protect himself or other students from disruptive students. The use of physical restraint techniques in accordance with School Board Rule 6Gx13-6A-1.331 (Special Programs and Procedures and . . . . the Contract Between the Dade County Public Schools and United Teachers of Dade is not corporal punishment. Prior to March 10, 1994, Respondent was aware of the School Board's rules prohibiting the use of corporal punishment and requiring employees to report cases of suspected or actual child abuse. Section 1, paragraph D, of Article VII of the UTD Contract provided, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alter- natives for dealing with student behavior. "Physical restraint" was the subject of Section 3 of Article VII of the UTD Contract, which provided as follows: There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Exceptional students enrolled in pro- grams for the emotionally handicapped, severely emotionally disturbed, and autistic, because of the nature of their disability, may on occasion experience impaired impulse control of such severity that use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. Students enrolled in other exceptional student education programs may also display behaviors that require the use of restraint. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. Subject to available funding, teachers or paraprofess- ionals shall, upon request, be afforded an opportunity to learn physical restraint techniques. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when a explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint techniques is authorized for such circumstances. Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized for implementation specific physical restraint procedures to be used in programs for the emotionally handicapped, severely emotionally disturbed, and autistic. These specific procedures may also be used with other exceptional students when it is indicated on the student's Individualized Education Program (IEP). These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations upon mutual agreement of the parties and would be reviewed on an annual basis. The Board shall provide for the training of instructional and support staff in physical restraint techniques as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accor- dance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). The use of physical restraint techniques shall be discussed as part of the Individualized Educational Program (IEP) review development process. The Local Education Agency (LEA) representative, at the initial IEP meeting and/or annual review, shall provide notifica- tion to parents of physical restraint proced- ures. When parents or surrogates are not present at the meeting, written notification to them regarding the use of physical restraint will be provided. For an exceptional student enrolled in a program other than for the emotionally handicapped, severely emotionally disturbed or autistic, a recommendation for the use of board-approved physical restraint procedures must be made by the multi-disciplinary team (M-Team) and be documented on the student's IEP form before the use of such procedures may be authorized. The use of physical restraint must be documented as a part of the Student Case Management (SCM) System. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Direct- ions shall be provided to instructional and support staff to assist them in completing the appropriate form. In accordance with Section 3 of Article VII of the UTD Contract, the School Board offered (and continues to offer) a Safe Physical Management Crisis Intervention Training Program (SPM Training Program) for its instructional and non-instructional staff assigned to work with emotionally handicapped, severely emotionally disturbed, and autistic students in order to train these employees in the use of School Board-authorized and approved physical restraint techniques and strategies. Participants in the School Board's SPM Training Program are given training manuals to review and study. According to one of these training manuals, Petitioner's Exhibit 3, the philosophy of SPM is as follows: Utilizing Safe Physical Management tech- niques in the classroom requires that non- physical intervention be used whenever possible to manage behavior. It is also expected that an on-going behavior management system is in place in the classroom to rein- force appropriate behaviors and control inappropriate ones. Physical management techniques may be used when the student is endangering himself, others, or property. They are not used to "punish" the child for misbehavior. Additionally, the philosophy of SPM includes the following major concepts. Emphasis on Safety- Techniques utilized in SPM consider the safety of the client and staff first. In a school setting, techniques that ensure physical safety of students and staff are important. Realize that Students can be Aggressive- SPM accepts the fact that some students need to be physically managed. The techniques used are based on the premise that students will at times eventually force physical inter- vention. That is, the student will do some- thing that you cannot ignore or manage using non-physical interventions. Least-Restrictive- SPM techniques move from least restrictive (providing minimal physical control) to more restrictive (providing maximum control). At all times, the least-restrictive technique that can control the student is used. Limitations- SPM techniques have limit- ations. They cannot handle every explosive situation. There are times when the best situation is not to intervene physically. There are times when SPM Techniques are neither appropriate or feasible. Assistance- SPM techniques advocate the use of assistance. Most techniques work best with two or more people and often, the best decision initially is to get help from other staff members. 3/ Professionalism- The focus of SPM techniques is to assist in the maintenance of a safe learning environment. SPM provides the district approved terminology for the documentation of physical intervention by the professional staff. This training manual also contains, among other things, the following information and instructions concerning the management of an "explosive event:" To effectively manage explosive (out-of- control) situations it is important to conceptualize them as: Angry/Aggressive- No matter how the incident begins, it is an expression of anger on the part of the student. Time-Limited/Temporary- Explosive incid- ents are angry, with the most dominant charact- eristics being a loss of physical control by the student. They are time-limited and even though they seem endless, the student will eventually calm down. Behaviorally Sequential- The behaviors exhibited by the student follow a pattern with behaviors typical each period (see Appendix B). Physical management techniques are not designed to end the explosive episode abruptly. Rather they are designed to safely manage the situation from beginning to end. As a result, the student may cont- inue to engage in aggressive acts, but managed appropriately, the risk of injury to persons or equipment is minimized. During the incident, only the amount of force necessary to prevent injury is utilized, and as the child exhibits more control a less restrictive hold may be used. Planning for explosive incidents is an important part of their prevention. Assessing the student, the environment and available staff is critical before physical intervention occurs. During the event, professional staff must be aware of both the verbal and non-verbal messages they give to students. It is important to indicate concern, expectation for change, and your interest in solving the problem. It is not the time to list sanctions, discuss potential punishments, or respond to personally abusive comments. After the incident ends, the staff involved should allow the student to withdraw and provide calm, brief verbal statements. Now is the time to communicate understanding, and to help the student identify ways this sequence of events can be prevented in the future. Another of the training manuals given to participants in the School Board's SPM Training Program, Petitioner's Exhibit 4, states the following regarding the importance of the child's safety in dealing with "explosive behavior:" Youth service workers and teachers are charged with a caretaking responsibility. As such they assume the natural role of adults to protect or safeguard the young. The Safe Physical Management Crisis Intervention Training Program has as its fundamental pur- pose the safe resolution of explosive behavior. This safety premise holds the adult responsible for insuring the safety of the youth. While the charge of guaranteeing youth safety during a crisis may appear in some way to jeopardize the safety of the intervening adult, in reality it keeps the adult from stepping into harm's way. Entering an explosive situation with a cognitive and physical focus of client safety allows for the management of the behavior and avoids the traps that attempting to eliminate the behavior present. When the purpose of the intervening staff is controlled by self preservation, their reaction to the acting out youth can easily become antagonistic. Such reactions promote escalation and a greater potential for harm. By keeping the youth safe, we provide a higher degree of safety for ourselves. . . . Intervention methods must be safe for both youth and adults; client/student safety however, is primary. At a minimum we shall do no harm. Physical intervention must be safe and, ideally, present minimal risk of accidental injury. . . . The intervention design of the safe physical management program is based upon the principle of social policy known as the "least restric- tive alternative." In many areas this principle has been reduced to the regulatory phrase, "passive restraint." In action, passive restraint refers to an intervention that utilizes the least amount of force necessary to safely control the situation. Student/youth safety is paramount. The SPM intervention philosophy requires that inter- vention personnel hold the safety of the student before their own. This premise, while sometimes raising the eyebrows of staff in training, ironically keeps the intervening staff safer than would an approach which holds staff well-being as primary. This training manual also contains, among other things, the following list of the "physical principles" of SPM: Proximity- safety is enhanced if physical space is understood as both a prompt and/or a deterrence to be used in the management of misbehavior. Location/positioning- safety is enhanced if intervention staff understand that the "face to face" position during intervention is considered the "attack/danger" zone. Evasion/deflection- safety is enhanced by evading or deflecting force rather than by opposing it. Balance- Safety is enhanced if intervention staff understand the principle of homeostasis- the nature of organisms to remain in a state of balance. Neutralization- Safety is enhanced if inter- vention staff understand the principle of managing an explosive event, rather than eliminating explosive behavior. In addition, this training manual describes and illustrates various physical positions and techniques used in SPM, including the "pivot and parry," an "evasion/deflection" technique which is described in the manual as follows: This combination of upper and lower body movement allows the staff to effectively evade and deflect any force that is directed at him/her. The pivot (usually 1/4 turn of one foot) is accomplished by leaving the weight on the foot which is on the side on which the blow or punch is delivered and moving the other foot toward the rear. The ending posture or stance should be the leading/trailing foot position previously described. This movement allows the blow or punch to go by the indivi- dual. This is the bull fighter move that allows the charging bull to pass on the side. Here, we are evading force rather than opposing it. The parry is a deflection of the force- i.e., the blow or punch. While both arms are used the primary parry is employed using the arm that is on the same side as the blow or punch. This arm is raised in an "L" configuration with the forearm vertical and upper arm on a horizontal pla[ne]. As the blow or punch is delivered the forearm is moved across to deflect the incoming force. This is not a blocking motion but, rather, a motion which simply redirects the force away from its target. The second arm is also used by making a similar "L" configuration with the hand being placed a approximately chin level. Again, the purpose is deflection. When the pivot and parry is employed correctly it places the staff in a position to move in and control the attacker, or to escape the danger by fleeing the situation. School Board staff receiving SPM training are also taught that, if during an "explosive event" they find themselves lying on the floor on their back being kicked by a student, they may raise a leg or arm to create a barrier to protect other, more sensitive, parts of their body. It is imperative that staff, in applying SPM principles, techniques, and strategies, exercise sound professional judgment. In determining how to deal with an "explosive event," which often begins abruptly, staff must consider the particular circumstances with which they are confronted. If they have had prior dealings with the student involved in the incident, they should draw upon these prior dealings and attempt to anticipate the student's actions. Respondent successfully completed a SPM training course offered by the School Board prior to March 10, 1994. 4/ Through its exceptional student education department, HMS offers special programs of instruction for various types of exceptional students, including those who are autistic. 5/ It is not uncommon for autistic students to engage in "acting out behavior" (such as screaming, yelling, punching, kicking and throwing objects). To enable its employees who work with autistic students to better understand these students and to deal with them more effectively, the School Board provides these employees with various written materials, including the Autism Orientation Manual, Petitioner's Exhibit 7, which contains the following statement regarding SPM: These procedures should conform to methods approved by the Dade County Public Schools which are described and demonstrated in struc- tured training sessions required for teachers and paraprofessionals working with autistic students. When using physical restraint, it is important to document what is being done. Written permission from parents or guardians is required. Physical restraint should not be used unless positive reinforcement methods have been utilized and the student is presenting potential harm to self and/or others. Evelyn Diaz Loper is now, and was at all times material to the instant case, an assistant principal at HMS responsible for the overall operation of the school's exceptional student education department, including the supervision of those School Board employees assigned to the department. On March 10, 1994, Respondent and Morgan Tharpe were among the employees under Loper's supervision. Tharpe was a teacher (with continuing contract status) who taught a class of autistic students at HMS. There were less than ten students in his class. M.A. was one of these students. M.A. was one month shy of his fourteenth birthday. He was quite strong for his age and had a history of engaging in "acting out behavior" in school. Respondent worked on a "one-to-one" basis with F.T., another student in Tharpe's class. During the second period on March 10, 1994, M.A., F.T. and the other students in Tharpe's class were in shop teacher Gerald Merkerson's classroom. They were supposed to be working on their woodworking projects. In addition to Tharpe's students and Merkerson, Respondent and two other School Board employees occupying paraprofessional positions (Eli Velazquez and Clara Smith), along with L.E., an HMS student in the school's regular education program, were in Merkerson's classroom. M.A. wanted to watch television in the classroom and not work on his project. Merkerson, however, refused to allow M.A. to watch television. M.A. thereupon began to engage in "acting out behavior." Among other things, he threw a metal file and wood in Merkerson's direction. (Merkerson was not hit by any of these thrown objects.) Merkerson and Velazquez took action to restrain M.A. Merkerson grabbed M.A.'s left arm, while Velazquez grabbed M.A.'s right arm. 6/ The two then attempted to lead M.A. away from the area of the classroom where M.A. was positioned. M.A. resisted their efforts. Unlike Respondent, Velazquez had not yet been trained in SPM. Moreover, he was not supposed to be in Merkerson's classroom. Accordingly, Velazquez let go of M.A.'s arm and Respondent attempted to take over for him. M.A., however, bit Respondent on the arm. The bite broke Respondent's skin. Velazquez came to Respondent's assistance and helped Respondent remove himself from the fray. After tending to his wound, Respondent rejoined Velazquez and assisted him in attempting to restrain M.A. Merkerson was no longer holding on to M.A. He had let go after a cut on his hand had reopened and started to bleed. M.A. was on his knees on the floor being restrained by Respondent and Velazquez when Tharpe walked into classroom. Tharpe instructed Respondent and Velazquez to let go of M.A. Respondent and Velazquez followed Tharpe's instructions, notwithstanding that M.A. had not yet calmed down and was still engaging in "acting out behavior." Tharpe walked toward M.A. When Tharpe was approximately two feet away from M.A., M.A. kicked Tharpe in the area of his groin. Tharpe screamed out in pain. M.A.'s actions prompted Velazquez to again attempt to restrain M.A. He grabbed both of M.A.'s arms, but was not able to hold on securely because both he and M.A. were dripping with sweat. M.A. struggled with Velazquez and tried to scratch and bite him. As Velazquez and M.A. were on their knees, face-to-face face, struggling with one another, Tharpe approached M.A. from behind and struck M.A. in the area of the upper back with a relatively thin, rectangular-shaped piece of wood approximately one foot to two meters long and two to three inches wide. 7/ Velazquez released M.A. after Tharpe delivered this blow. M.A. then started crawling towards Tharpe and tried to scratch and bite him. In an effort to ward off M.A.'s attack, Tharpe, who at 235 pounds was substantially larger than M.A., hit M.A. on the back at least two more times with the piece of wood he was holding in his hand. These additional blows were not delivered with full force. The three or more blows that Tharpe delivered produced bruises on M.A.'s back. The marks remained visible for approximately seven to ten days. In delivering these blows, Tharpe used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a manner that was inconsistent with the SPM training he had received. Respondent had witnessed Tharpe's actions and recognized that Tharpe had acted improperly. Nonetheless, contrary to the requirements of Guideline No. 4 of the School Board's Procedures (of which Respondent was aware), Respondent did not report the incident to Loper (who was at school that day) or any other School Board administrator within a reasonable period of time following the incident. Neither did any of the other HMS staff members who had been in the classroom at the time of the incident advise Loper, on March 10, 1994, of what had happened. Although Tharpe's actions were inappropriate, they were effective. After Tharpe delivered his final blow, M.A. stopped crawling toward him. M.A. continued to scream, however, and, after a while, he started to crawl toward Respondent. In an effort to prevent M.A. from coming any closer, Respondent swung his foot in M.A.'s direction and made contact with M.A. 8/ Respondent kicked M.A. approximately five or six times, but M.A. continued coming at him. When Respondent started to become visibly upset with M.A., Velazquez intervened by positioning himself between Respondent and M.A. and pushing Respondent out of the way. Respondent did not kick M.A. as hard as he could have. 9/ Nonetheless, in kicking M.A., he used more force than was reasonably necessary to effectively and safely deal with M.A.'s "acting out behavior" and he acted in a physically aggressive manner that was inconsistent with the SPM training he had received. 10/ M.A. eventually calmed down and returned to Tharpe's classroom. Tharpe telephoned M.A.'s mother, L.A.H., that day (March 10, 1994), but he did not mention to her during their conversation anything about what had happened in Merkerson's classroom during second period. He simply told L.A.H. that she needed to supply him with more medication for M.A. Following the conclusion of the school day, M.A. went home by school bus. L.A.H. met him at the bus stop and greeted him with a hug. She was unaware, at the time, that anything unusual or out of the ordinary had occurred in school that day. M.A. pulled away from his mother when she hugged him and said, "Mom, boo-boo." 11/ L.A.H. then pulled up M.A.'s shirt and saw four bruises about "three fingers wide" on M.A.'s back that had not been there that morning when she had helped M.A. get dressed for school. M.A. also had a scratch on his forehead that L.A.H. had never seen before and a bump on his head. The following morning (March 11, 1994), L.A.H., accompanied by M.A. and M.A.'s father (L.A.H.'s former husband), met with Loper and William Jones, the principal of HMS. L.A.H. showed Loper and Jones the bruises on M.A.'s back and the scratch on his forehead and expressed her belief that M.A. had sustained these injuries at school the previous day. Loper thereupon contacted Merkerson and asked him if anything had occurred in his classroom the day before that may have resulted in injury to M.A. In view of Merkerson's response to her inquiry, Loper asked him to fill out a Student Case Management Referral Form (SCM Form). A SCM Form must be filled out whenever a student has been physically restrained. Loper had not previously received a completed SCM Form indicating that physical force had been used against M.A. in Merkerson's classroom the day before. On the SCM Form that he filled out at Loper's request, Merkerson stated the following: [M.A.] became irate and upset because he was not allowed to watch Barney on television. He became combatant and began to throw stools and wooden objects at the teachers and paraprofessionals. Upon being subdued to reduce the danger that he posed to myself and others he bit Juan Alejo on his right forearm, kicked Mr. Tharpe in the groin area and hit his right arm with his balsa wood project. The student poses a serious safety hazard in the technology education shop class. [M.A.] was also self destructive and scratched himself on the left temple. Although Merkerson did not mention in his written report that, in subduing M.A., Tharpe had hit M.A. with a piece of wood and Respondent had kicked M.A., the School Board ultimately found out about Tharpe's and Respondent's unseemly and inappropriate behavior during the incident. On November 2, 1994, a conference for the record was held concerning Respondent's involvement in the incident. At the conference, Respondent admitted that he had kicked M.A. during the incident. By letter dated November 3, 1994, the principal of HMS recommended to Frank de Varona, the Regional Superintendent (for Region I Operations) "the termination of [Respondent] from all employment in Dade County Public Schools." By letter dated January 13, 1995, the School Board's Superintendent of Schools notified Respondent that he was recommending that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its January 25, 1995, meeting. Respondent thereafter requested a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 25th day of April, 1996. STUART M. LERNER, 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 25th day of April, 1996.
The Issue The issues to be determined are whether Virginia Young (Respondent or Ms. Young) violated: section 1012.795(1)(g) Florida Statutes (being found guilty of personal conduct, which seriously reduces effectiveness as an employee of the school board); section 1012.795(1)(j) Florida Statutes (violating the Principles of Professional Conduct for the Education Profession as prescribed by the State Board of Education rules); Florida Administrative Code Rule 6A-10.081(2)(a)1. (failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety); and Florida Administrative Code Rule 6A- 10.081(3)(e) (intentionally exposing a student to unnecessary embarrassment or disparagement)1/; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Respondent holds Florida Educator Certificate 624273 in the areas of: Educational Media Specialist; English; Elementary Education; English for Speakers of Other Languages; Guidance and Counseling; Physical Education; Social Science; Business Education; Family and Consumer Science; and Exceptional Student Education. Respondent’s certification is valid through June 30, 2017. Respondent is also certified in Middle Grades Integrated Curriculum, which is valid through June 30, 2017. Respondent taught in the Polk County School District (PCSD) for eight years and retired two years ago. At all times material to these allegations, Respondent was employed as a social studies teacher at Traviss or as an elementary combination teacher at PVS in the PCSD. BATHROOM HALL PASS 2013-2014 School Year For the 2013-2014 school year, Respondent taught tenth- grade English and World History at Traviss. Her classroom was a portable building in the school’s parking lot. Although there was a bathroom in the portable, it had been disassembled and was unusable. When a student needed to use the bathroom, the student obtained a bathroom pass to leave the portable and go to another building where there was a functioning bathroom. Respondent’s policy for any student (pregnant or not) to obtain a bathroom pass was simple: the student had to sign in, find their assigned seat, write down the “SMART Board question” of the day, and go to the classroom aide (or paraprofessional) to obtain a bathroom/hall pass. Each student had an agenda book, and the aide would mark the time of the bathroom pass. If the student was gone too long, the aide would try to find them. Respondent never denied a student’s request for a bathroom pass although she had, on occasion, asked a student if they could wait “five minutes” because Respondent was starting a clip and was concerned she could not replay the clip. Respondent never signed a bathroom pass, but had her paraprofessional or classroom aide handle the passes. There was no evidence adduced by any former student, pregnant or not, who was denied a bathroom pass. E.G. testified there were “students” in her class who were pregnant and, with the assistance of counsel, she confirmed one student’s identity, A.G. However, A.G. did not testify that she was pregnant and A.G. did not testify that she was denied the opportunity to use the restroom. E.G. heard Respondent deny “those students’” request to go to the restroom on a “few occasions.” E.G.’s testimony was unpersuasive. Petitioner’s Exhibit 29 is a verbal warning with a written confirmation regarding Respondent’s alleged denial of pregnant students’ rights to use the restroom when asked. The undersigned acknowledges this warning; however, the non-hearsay testimony at hearing failed to support such a finding. INAPPROPRIATE LANGUAGE 2013-2014 School Year As part of the English curriculum, Respondent taught literature. Each year she used the novel To Kill a Mockingbird, by Harper Lee, which was on the approved reading list in her tenth-grade, English 2 class. In that novel, the “n” word is used once or twice. Respondent does not use the “n” word. E.G. and Ms. Ibarra were questioned about inappropriate language used during their class. Ms. Ibarra thought she was in Respondent’s eleventh or twelfth grade English class, yet she did not recall if the class was discussing a book or a movie when she claimed to have heard the “n” word used. E.G. knew Respondent was her English teacher, but could not recall if the class had been discussing the book when the “n” word may have been used. Both students’ testimony was vague and unpersuasive. TREE NUT ISSUE 2015-2016 School Year Respondent moved to PVS for the 2014-2015 and 2015-2016 school years. At PVS she taught grades kindergarten through fifth grade. Respondent had multiple preparations for the different classes she taught at PVS. Elementary students are young, and in addition to the virtual teaching time, each grade level is brought into the “brick and mortar” school once a month for a two-hour “face-to- face” class. This is to ensure that each PVS student is progressing appropriately and to ensure that each student is not being unduly assisted by their “learning coach,” an adult or other person. At PVS, teachers were expected to contact each student’s parent(s) prior to the school year starting. This “welcome call” was to introduce themselves, provide a course overview, and to chat about the individual student who would be in Respondent’s class. During the 2015-2016 school year, Respondent taught PVS’s first-grade virtual class in addition to other grades. S.D. was in Respondent’s first-grade class. S.D. is now an eight-year-old student residing and attending school out of Florida. While residing in Florida, S.D. was home schooled for the kindergarten school year. S.D. attended PVS as a first-grade student during the 2015-2016 school year. The following year S.D. attended PVS for second grade. S.D. has an allergy to tree nuts. Prior to the start of S.D.’s first-grade year, Respondent called and spoke with S.D.’s mother. During that telephone call, Respondent explained that she incorporated food in her classroom. At this mention, S.D.’s mother first raised S.D.’s severe tree nut and sesame seed allergy. S.D.’s mother advised Respondent that S.D. would probably stay home if the parents were told walnuts were going to be used in the face-to- face classroom exercise. S.D.’s mother offered to bring in other equivalent materials when food was to be used in the classroom. In September 2015, at the first face-to-face classroom meeting, S.D.’s parents spoke with Respondent, and reaffirmed S.D.’s tree nut allergy. S.D.’s parents renewed their offer to supply equivalent things for S.D. to use when food was to be used in the classroom curriculum. On October 6, 2015, Respondent entered school counselor Balladin’s office and noticed an EpiPen. In her discussion with Ms. Balladin, when told the EpiPen was S.D.’s, Respondent said the EpiPen could not be S.D.’s because it was an adult, expired EpiPen. Ms. Balladin directed Respondent to telephone S.D.’s mother about the EpiPen left in Ms. Balladin’s office. Respondent confirmed she spoke with S.D.’s mother as directed. Respondent recorded the conversation in the PVS computer system as “[Respondent] called LC to inform that they [S.D.’s parents] had left [S.D.’s] peanut allergy pen in Ms. Balladin’s office. Mom said she had a spare and would pick it up on Friday morning.” On December 8, 2015, S.D. and one other student were the only two students to participate in the face-to-face first- grade class at PVS. Towards the end of the class, Respondent provided each student with a “Christmas tree brownie still in the wrapper on the plate.” Respondent told the students not to eat the brownie until they checked with their respective mothers as it was close to lunch time. Respondent walked the two students to the front office area of the school. When S.D.’s mother saw S.D., she noticed that S.D. had a partially eaten brownie. S.D.’s mother noticed there was no wrapper to the brownie and she asked Respondent about it. S.D.’s mother wanted to know the brand to purchase it. Respondent admitted that she read the label of ingredients on the box before she purchased the brownie treats, and she did not think it would harm S.D. S.D.’s family left PVS to drive home, which was an hour or more away from PVS. Shortly after the family left PVS, S.D. became ill, frequently vomiting into a bucket on the way home. S.D.’s parents reported the illness to PVS. The brownie given to S.D. came from a box labeled “Christmas Tree Brownies [by] Little Debbie.” The brownies were Christmas tree shaped with green icing and small edible “candy toppers” on top. The box contained a list of more than 15 ingredients and also contained the following: ALLERGY INFORMATION: CONTAINS WHEAT, SOY, MILK, EGG. MAY ALSO BE PRESENT IN THIS PRODUCT: PEANUTS, TREE NUTS. Respondent thought the brownie was safe for S.D. It was not. Respondent initially testified that she did not receive any training from the school about how to deal with students’ allergies, but then immediately claimed she obtained allergy training three months after this December 8 event. The source of that training was unclear. The evidence regarding the tree nut allergy issue was established through clear and convincing evidence: Respondent provided a food product that contained tree nuts to S.D., a student who was known to have a tree nut allergy.
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 Respondent guilty of Counts 2 and 3 in the Amended Administrative Complaint, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the Education Practices Commission, and dismissing Counts 1 and 4. DONE AND ENTERED this 20th day of February, 2018, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2018.
