The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for certifying and regulating public school teachers in Florida. Respondent is licensed in the fields of elementary education and pre-kindergarten education. She holds Florida Educator's Certificate No. 544004, which was valid through June 30, 2009. During the time relevant to these proceedings, Respondent was employed as a kindergarten teacher at Oceanway Elementary School in the Duval County School District. Criminal Charges On August 7, 2002, Respondent was arrested for contributing to the delinquency of a minor and with failure to comply with the compulsory school attendance law. These charges stemmed from excessive absences from school by her daughter, A.F. During the 2001-2002 school year, A.F. missed 66 days of school. Respondent did not dispute the allegations regarding the excessive absences. She stated that her daughter did not want to attend school, and she took her out of the public school system during the 2002/2003 school year to home school her. Prior to her removal, she missed 13 days of the 2002-2003 school year. Upon her return to school for the 2003-2004 year, Respondent's daughter missed another 43 days of school. On September 3, 2002, Respondent's entered her neighbor's property while he was not at home. She climbed up on a chair to tamper with the mounting of a security camera affixed to the neighbor's garage, removing caulk or putty from around the mounting. Respondent was arrested for trespass and criminal mischief with respect to this incident. On January 17, 2003, Respondent pleaded no contest to the charge of failing to comply with school attendance laws, and adjudication was withheld. Respondent was placed on probation for a period of twelve months, and a fine of $148.00 was imposed. The charge of contributing to the delinquency of a minor was nolle prossed. Respondent's probation with respect to the school attendance violation was terminated on July 8, 2003. Four days later, on January 21, 2003, Respondent pleaded nolo contendere to the trespass charge, and adjudication of guilt was withheld on this charge as well. The criminal mischief charge was nolle prossed. Application for Renewal of Educator's Certificate On April 14, 2004, Respondent filed an application for renewal of her Florida educator's certificate. The application for renewal contained the following question: Have you ever been convicted, found guilty, had adjudication withhold, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? A YES or NO answer is required by Florida law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet with your name and social security number if you need more space. Respondent answered the question "no." The application contains and Respondent signed the following certification, which is sworn and notarized: I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete. The information provided on the application for recertification was not true, correct and complete, as it did not include information regarding the two misdemeanor offenses of trespassing and failing to comply with the school attendance law, to which Respondent pled nolo contendere. Inappropriate Student Discipline During 2007-2008 school year, Respondent was teaching kindergarten at Oceanway Elementary School. At this time, she was known as Robin Bush. During at least part of the school year, she was assisted by Roseanne Jones and Irene Szeremi, paraprofessionals who worked in her classroom. While these women worked with Respondent at different times, their testimony about the atmosphere in the classroom was consistent. Respondent was heard threatening the students in her class and yelling at them in a loud, angry manner. According to the paraprofessionals, Respondent yelled at the students almost every day. This behavior would cause some students to become upset and cry, and students appeared to be afraid of Respondent. Respondent punished at least one child, J.H., by making him sit underneath a computer table, amidst the electrical cords, for long periods of time. The area where the child was directed to sit for time-out had not only electrical cords, but electrical outlets readily accessible to small children. On one occasion, Ms. Szeremi observed Respondent discipline J.H. by making him stand up with his nose pressed to the wall at eye level. When Respondent left the room for a moment, the crying child dropped to the ground, protesting that he could not continue. When Respondent returned, she lifted him back to a standing position, using her knees to propel him up. Respondent's loud, threatening behavior was upsetting to the students. At least one student, A.D., had been a happy student during her pre-kindergarten experience. However, within a few weeks of attending Respondent's kindergarten class, she started crying when it was time to go to school and did not want to attend. She had nightmares, complained of an upset stomach, and did not want to be out of her mother's sight. After Respondent was removed from the classroom, A.D.'s behavior improved and she no longer dreaded going to school. In May of 2008, M.D., A.D.'s mother, contacted Mr. Cobb, the principal at Oceanway Elementary, regarding the atmosphere in Respondent's classroom and her concerns about inappropriate discipline taking place in the classroom. The two paraprofessionals working with Respondent had also voiced concerns about her behavior. As a result of these concerns, an investigation was conducted by Leroy Starling, the Duval County School District professional standards investigator. Before his retirement, Mr. Starling was the professional standards investigator for the School District for 17 years, following a 25-year career with the Jacksonville Sheriff's Office. As part of the investigation, Mr. Starling interviewed several of Respondent's students in Mr. Cobb's presence. The students were interviewed individually in a non-leading fashion. Based upon the interviews of the students and of the paraprofessionals working with Respondent, the School District determined that the allegations of inappropriate discipline were substantiated. On September 10, 2008, the School District issued a letter of reprimand to Respondent, based on the allegations of inappropriate discipline. Respondent denied using inappropriate discipline, accused one of the paraprofessionals of "being bipolar" and having Alzheimers' Disease, and claimed that J.H. sat under the computer table because that is where he wanted to be. Respondent's testimony is rejected. She also claimed, although she was not present for any of the interviews, that Mr. Starling and Mr. Cobb led the students to say bad things about her. It is considered abuse for a teacher to require a student to stand with his or her nose against a wall for a substantial period of time. Such a punishment could have a significant psychological impact on a child. The same could be said for consistently yelling at kindergarten students, and punishing students by making them lie or sit under a table. Persuasive evidence indicates that instead of creating an atmosphere for learning for these five and six-year-old students, Respondent's classroom had an atmosphere of fear that would interfere with the ability to learn.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding Respondent guilty of Counts One, Two, Three, Four, Five and Seven of the Administrative Complaint; dismissing Count Six of the Administrative Complaint; and permanently revoking her education certificate. DONE AND ENTERED this 18th day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2009.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Respondent holds Florida Educator's Certificate No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016. The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate. Respondent is an experienced teacher, having taught for 22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education. Respondent began his career teaching emotional behavioral students, and did that for a few years. He later worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students. Respondent decided to teach Special Education students because he had himself been a Special Education student. The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support. Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn. His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community. In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including: Violations of the Principles of Professional Conduct. Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Unreasonably restraining a student from independent action in pursuit of learning. Intentionally exposing a student to unnecessary embarrassment or disparagement. The factual allegations underlying these violations were as follows: During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock. On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities. Facts Regarding Aggressive Handling and Improper Restraint of T.C. Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student. The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed. Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup. T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup. She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup. Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock." Pet. Ex. 2. In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand. In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup. She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/ Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C. In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2. In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2. Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened. Because she felt that the incident was not "proper interaction," she reported it to an assistant principal. Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/ Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others. While they were seated, she saw T.C. grab Respondent's coffee cup off the table. In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours." Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception." She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C. Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident. Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C. Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy. They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident. According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other. Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else. After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded. Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C. Hall observed several paraprofessionals in the room. None intervened, or put down their cell phones during the incident. According to Hall, T.C. was not harmed in any way. Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort. Hall never saw Respondent mistreat T.C. in any way. Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom. Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C. He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds. T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old. T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things. For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities. Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles." On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away. Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again. T.C. reached and got his hand on Respondent's cup. While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup. Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand. As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth. Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged. Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat. The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat. In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C. Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between T.C. and Respondent is rejected as unpersuasive and implausible.5/ The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint. Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup. Allegations Reported by Shannon Lewis Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11. She described T.C. as being 6'5" tall and weighing 250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it. Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/ According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/ Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C. Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No." No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3. However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/ St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on. St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances. He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent. Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper. Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him. Another paraprofessional, Alvaro Rodriguez testified. He was also identified by Lewis as being present during the door- biting incident. He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him. Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/ Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor. Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other. Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking. Respondent testified that he never grabbed T.C. by the cheeks and squeezed. Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible. There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C. Incident Involving P.M. Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere. Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/ One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/ She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone. St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision. Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds. There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him. Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program. Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom. Respondent testified that there were times that he would transition back from a class and P.M. would be in his room using his sensory equipment, but he would always be with St. Jacques. One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break. During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period. The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence. The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding. Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement Lewis further testified that there was an incident involving students who wanted to use calculators during math class. J.M. wanted to use the calculator, but Respondent would not let her use it. The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator. There were two other students who Respondent also did not allow to use the calculator. In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom." There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/ Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1996). Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid." Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed that St. Jacques was in the room when Respondent called the girls stupid and heard him say it. St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca. St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them. Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators. Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive. The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 30th day of April, 2018.
The Issue Should Petitioner, Pinellas County School Board (School Board or Board), terminate the employment of Respondent, Rose M. Dacanay, for the reasons that follow: Violation of Board Policy 4140A(9), incompetence? Violation of Board Policy 4140A(9)(a), failure to perform the duties of the position? Violation of Board Policy 4140A(19), failure to correct performance deficiencies? Violation of Board Policy 4140A(20), insubordination? Violation of Board Policy 4140A(24), failure to comply with Board policy, state law, or contractual agreement?
Findings Of Fact The Pinellas County School District has employed Ms. Dacanay since August 2005. She has worked as a teacher assistant and as an exceptional student education (ESE) associate. At the beginning of the 2011-2012 school year, Ms. Dacanay worked as an ESE associate assigned to the Paul B. Stephens Exceptional Student Education Center (Paul B. Stephens). The Center serves vulnerable students with significant developmental disabilities and medical needs. ESE associates work under a classroom teacher's direct supervision. They must assist the teacher in all aspects of both the care and the education of the students. During the first semester of the 2011-2012 school year, Ms. Dacanay worked in the classroom of Paulette Pickering. Because Ms. Dacanay's performance in Ms. Pickering's class was not satisfactory, the principal, Gail Cox, reassigned her to the classroom of Linda Vest for the second semester, which started January 2012. Ms. Cox selected Ms. Vest's classroom because it did not have as many students as Ms. Pickering's, and the class was not as demanding. The reassignment was to give Ms. Dacanay an opportunity to improve her skills and continue working at the school. Also during 2011, Ms. Cox, along with other administrators and a teacher's union representative, met in October and November with Ms. Dacanay four times to review multiple deficiencies in her performance and offer improvement plans. In the meeting held November 10, 2011, Ms. Cox encouraged Ms. Dacanay to apply for other positions in the school system that would not be so demanding and would be a better fit for her. In January of 2012, Ms. Cox spoke to Ms. Dacanay and told her very directly, "This is not working, Rose. You need to find a different job. Even though everyone is nice and polite, you're still not doing your job, and you need to find another one that better fits your skills." Ms. Dacanay did not take this advice. She worked the remainder of the 2011-2012 school year at Paul B. Stephens. After summer break, she returned to employment in the 2012-2013 school year. She was assigned to assist Kim Gilbert. The students of Paul B. Stephens have emotional, mental, and physical disabilities. Many have severe and multiple disabilities. They are dependent upon the services of their teachers and teacher assistants. One of the students in Ms. Gilbert's class required the use of Dynamic Ankle Foot Orthotics (DAFOS). These are hard plastic inserts positioned around a child's foot before putting on the child's shoe. They must be positioned and wedged on carefully to avoid hurting the student. After correct placement, they are strapped on. The DAFOS are individually made for each wearer's feet. Ms. Dacanay had been instructed and trained on how to put DAFOS on. DAFOS position a child's foot to cure or resist deformity. They are uncomfortable even when properly applied. When DAFOS are put on the wrong foot, they are painful and can cause blisters and sores. They also do not properly perform their rehabilitative function. On October 23, 2012, Ms. Dacanay put a student's DAFOS on backwards. This would cause the student pain and eliminate the benefits of the DAFOS. Fortunately, Ms. Gilbert spotted the mistake and corrected it. The same student also needed and wore an arm splint. Ms. Dacanay had been instructed and trained on how to fasten the arm splints. On October 24, 2012, Ms. Dacanay was improperly fastening the arm splint. Ms. Gilbert noticed and corrected her. In 2012, Ms. Dacanay's duties included placing wheelchair-bound students in the bus and securing their wheelchairs. This service is critical to the students' safety and the safety of the other students. It requires properly fastening the students in their chairs with chest and foot straps to prevent them from falling from the chair or injuring their feet during transportation. Ms. Dacanay was trained in securing the students and their wheelchairs for transport. On October 29, 2012, Ms. Dacanay did not fasten the chest straps on one student's wheelchair. On October 30, 2012, Ms. Dacanay did not properly secure a student's feet for transport on the bus. Fortunately each time, other employees noticed the errors and corrected them. On another occasion, Ms. Dacanay did not properly fasten the chest strap of a student in a wheelchair on the bus. Another ESE associate checked the student's straps and tightened them properly. The students' wheelchairs were also strapped tightly in the bus to prevent movement or falling. Ms. Dacanay was properly trained on how to secure the bus hook-up straps. From October forward, Ms. Dacanay routinely failed to properly secure students for the bus. A fellow ESE associate regularly observed this and began routinely checking and tightening the straps for the students. Specifically, Ms. Dacanay did not properly fasten the wheelchair hook-ups on November 14 and December 4, 2012. Despite the fact that properly securing the wheelchairs was one of her duties, on December 4, 2012, Ms. Dacanay asked a student why he had not hooked up the side straps on his wheelchair. Ms. Dacanay's neglect of the task of securing students in their wheelchairs was so common that the other ESE associates who worked in Ms. Gilbert's class were concerned for the children's safety. Consequently, they regularly checked the wheelchairs of students for whom Ms. Dacanay was responsible to ensure that the students were properly secured and safe. They often found the straps loose and secured them. Swimming was part of the curriculum and services for some students. On November 5, 2012, while bringing students back from the pool, Ms. Dacanay used only one hand to push a student in a tall, cumbersome therapy chair. The chair was tall, unstable, and very difficult to maneuver along the sidewalk. With her other hand, Ms. Dacanay was escorting another student. Two other ESE associates yelled at her to stop. Ms. Dacanay did not, and the chair "wobbled" and went off the sidewalk. Ms. Dacanay was taking prescription medicine. She did not properly secure it, and a pill fell to the bathroom floor. Ms. Gilbert found the pill and gave it to the school nurse, Tomeka Miller. Ms. Dacanay went to Ms. Miller and asked her to return the pill. She also asked if anyone else knew about the pill. Ms. Miller advised Ms. Dacanay that Ms. Gilbert knew. The ready availability of the pill to the students with disabilities represented a potential risk to the students. One of the students for whom Ms. Dacanay was responsible was blind and had other issues. In the words of his teacher, Ms. Gilbert: That was my student who was blind. In addition to having a lot of other issues, he's a student who is transported in a wheelchair and he kind of cruises around furniture, but it's not a walker. He's very, very difficult, very strong, very stubborn. He has a lot of sensory issues, so you can't hurry him to do anything. It just makes the problem worse. Ms. Dacanay was aware of the student's issues and needs. On November 8, 2012, Ms. Dacanay was hurrying the student back into the classroom. She was urging him on and saying "come on, let's go." He became agitated. Ms. Gilbert instructed Ms. Dacanay to let the student calm down. Ms. Dacanay did not. This detrimentally affected the rest of the morning routine, including the student's therapy schedule. Ms. Dacanay denied each of the events described above. Her denials are not credible judged in light of the conflicting testimony, consistency of testimony among several witnesses, and consistent reports in contemporaneously created documents. In addition, Ms. Dacanay regularly displayed an inability to perform her work or learn her duties. Despite repeated instructions, she failed to correctly perform routine functions. When she worked with her students and the physical education teacher, Darlene Tickner, Ms. Tickner had to repeat instructions and requests multiple times to get her to work. Ms. Dacanay's inability to understand her duties caused Ms. Tickner to develop a "Teacher Associate Class Expectations" worksheet to help remind Ms. Dacanay and the other associates of their fundamental duties. Although the worksheet was given to all associates, Ms. Dacanay's repeated inability to perform the duties of her position was the reason Ms. Tickner prepared the worksheet. Although Ms. Dacanay was only responsible for seven students, she could not even remember their names. Ms. Dacanay also demonstrated a pattern of not paying attention to the students, preferring instead to perform chores. For instance on September 19, 2012, when Ms. Dacanay should have been assisting with a student activity, she left the classroom area for about ten minutes and spent her time folding and storing student bathing suits. This was after she had read and signed the "Class Expectations" worksheet that listed "Focus on the students and the activity, not chores" first. On another occasion, Ms. Dacanay neglected to bring a blind student who also needed a wheelchair, because of cerebral palsy, to the physical education class. Ms. Tickner asked Ms. Dacanay where the student was. Ms. Dacanay said "she didn't know." Ms. Tickner sent Ms. Dacanay back to the classroom to get the student. Ms. Dacanay returned without the student and said "she couldn't get him into his chair." Ms. Tickner had to go get the student and bring him to the class. As the "Class Expectation" worksheet notes and Ms. Tickner had emphasized, class participation was important for the students and participation with the students was an important part of the associate's job. Once when Ms. Tickner specifically instructed Ms. Dacanay to work with the other associates getting the students in and out of the pool, Ms. Dacanay disobeyed. Instead, she followed a mobile student who did not need assistance around. On another occasion, Ms. Dacanay was supposed to prepare the students for swimming. She removed the diaper from a child who was not going swimming. Similar issues and concerns about Ms. Dacanay's focus and attention to her duties caused the physical education teacher the year before, Mark Manley, to conclude that he could not leave the room if Ms. Dacanay was working with the students. She repeatedly demonstrated problems "focusing on tasks, staying on task . . . inability to stay with a program all the time." The problems Ms. Dacanay had during the 2012-2013 school year were similar to earlier performance failures during her time at Paul B. Stephens when she was working with Ms. Pickering. Ms. Cox met with Ms. Dacanay on October 18, 2012. The letter of reprimand following that meeting summarized the failings identified above and others. The letter advised Ms. Dacanay: [Y]ou appear to avoid work, especially toileting/changing student. Your ability to learn your job or perform your work responsibilities has been questioned and requires your teacher to constantly monitor you to ensure student safety. For example you appear not to remember which student uses which chair nor how to secure students in their chairs. This has happened several times. After 3-4 weeks in school you still needed direction to assist students with table activities before morning group. You have been off-task during PE and you were not able to monitor students assigned to you when they were in the pool. You also fell asleep during music class. In addition to classroom issues the assistants on the bus with you have stated that you pretend to forget how to hook up wheelchairs and harnesses, and do not do your share on the bus. You also fall asleep regularly on the way home in the afternoon which also puts more work on the other assistants. Before working at Paul B. Stephens, Ms. Dacanay received less than satisfactory ratings on her evaluations beginning on February 20, 2007, at Largo High School, where her evaluation noted that she needed to improve punctuality and that she left her assigned area without notifying the teacher. In all, between February 20, 2007, and February 10, 2011, Ms. Dacanay's evaluations reflect 16 instances of being evaluated as unsatisfactory or in need of improvement in areas that include punctuality, judgment, job knowledge, quality of work, quantity of work, initiative and attendance. The weight of the persuasive, credible evidence established that Ms. Dacanay was not competent to perform her duties, did not perform her duties, and did not improve her performance despite being given repeated opportunities to improve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order finding that there is just cause to terminate Ms. Dacanay's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes. DONE AND ENTERED this 27th day of November, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2013.
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed 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. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d) or (g), Florida Statutes (2009)1/ and/or Florida Administrative Code Rule 6B-1.006(3)(a) or (e), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is charged with the certification and regulation of professional educators in the state of Florida, pursuant to the provisions of section 20.15 and the Florida K-20 Education Code, chapters 1000-1013, Florida Statutes (2009). Respondent, Deidra Juniper ("Respondent" or "Ms. Juniper"), holds Florida Educator's Certificate 317540, covering the area of elementary education, which is valid through June 30, 2016. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an elementary school teacher at Yniestra Elementary School ("Yniestra") in the Escambia County School District. Yniestra was a Title I school. Since the events in this case, Yniestra has closed. During the 2009-2010 school year, Respondent taught fifth grade. She had taught at Yniestra since 2000. At the beginning of the 2009-2010 school year, Yniestra received a new principal, Dr. Sharee Cagle, following the retirement of the former principal, Nancy Reese. Dr. Cagle was also the principal for Hallmark Elementary School, serving in that capacity at both schools simultaneously. Shortly before the beginning of the school year, Respondent's adult son died unexpectedly. Dr. Cagle, along with other school district administrators, attended the wake for Respondent's son to offer their condolences. Although Dr. Cagle had attended a faculty meeting soon after her appointment was announced at the end of the preceding year, this was the first time that she and Respondent had met. Respondent believed she had a good relationship with Ms. Reece, and Ms. Reece's testimony was consistent with that belief. She generally had a reputation of being a good, professional, and knowledgeable teacher, with high standards for her students. She did not share the same rapport with Dr. Cagle. The 2009-2010 School Year Medication M.H. was a student in Respondent's fifth-grade class during the 2009-2010 school year. He made B's and C's in her class. M.H. claimed that Respondent told him that he needed to be on medication and that she called him dumb in front of the class. M.H. admitted that right before the alleged comment regarding the need for medication, he was standing at his seat as opposed to sitting, and liked to move around the class a lot. He did not recall her ever calling a student in the class stupid. Respondent denied asking M.H. if he was on medication or telling him that should be medicated. Respondent acknowledged that she spoke to M.H.'s mother during a parent conference about his behavior and asked whether he was on medication. Although M.H. was unsure why he was removed from Respondent's classroom, he was transferred to the other fifth-grade teacher (Ms. Sheater) at his mother's request. K.L. was also a student in Respondent's class. Generally, he was a B-to-D student who Respondent did not consider to be a discipline problem. K.L. was on medication that helped him with focus. One morning, K.L. failed to take his medication before leaving for school. K.L could not stay still that day and was not getting his work finished. K.L. testified that Respondent asked him why he was not finishing his work, and whether he had taken his medication that day. When he said no, she told him he should take his medication. No testimony was presented as to who else could hear the comments made to K.L. Respondent vaguely remembers an incident where K.L. was not doing his work and was talking instead, but does not recall telling K.L. that he should have taken his medication. Another student testified that on occasion, Ms. Juniper would make the statement that the students were "on medication or something" when they were noisy and disruptive as a class, and she was trying to get them to be quiet. The comments were directed to the class as a whole, however, and this student denied ever hearing Respondent tell an individual that he or she needed to be on medicine. Dr. Cagle testified that it would be inappropriate to tell an unfocused student who had already told her that he forgot to take his medication that he needed to do so. According to Dr. Cagle, it is not up to the teacher to determine whether taking meds is going to help him have a better day, and it is not appropriate to make a statement regarding medication in front of other children. After review of all of the evidence presented, the Commissioner presented clear and convincing evidence that Respondent told K.L. that he needed to take his medication on the day that he acknowledged he had not done so. It is not established by clear and convincing evidence that the statement was heard by other students. The other allegations regarding comments to students that they needed medication were not supported by clear convincing evidence. Belittling or Disparaging Remarks M.H. claimed that Respondent called him dumb in front of the class. He did not recall her ever calling a student in the class stupid. M.H. admitted that Respondent told the entire class that not doing their work was dumb, but insisted that she also made that statement about him individually. K.L. also testified that she called him dumb in front of the class. Another student, G.L., stated that she told a student on a single occasion that they needed to be on medication but could not identify the student and could not recall any of the circumstances related to the incident. No student indicated that they heard Respondent call a student crazy or retarded. While D.L. testified that Respondent told a student he or she was not going to sixth grade, she was unsure which student was involved. Other individuals, including students, parents, and staff, testified that they had never heard Respondent accuse a child of needing medication or call a student dumb, crazy, or retarded. Respondent denies ever making such statements. With respect to the statement about going to sixth grade, she testified credibly that the only time she would discuss a student's promotion to the next grade would be in the context of parent-child conferences, and not in front of other students. The evidence is not clear or convincing that Respondent called students crazy, dumb, or retarded. Clothing Yniestra, as a part of the Escambia County School District, had a dress code that prohibited clothing that could be considered disruptive. On one occasion, a female student in Respondent's class was wearing a t-shirt that depicted a vampire biting in the general vicinity of the student's breast. The t- shirt was covered by another shirt, but while the students in Respondent's class were in line in the hallway, the overshirt had come loose, exposing the t-shirt. Respondent found the t-shirt inappropriate, and noticed that the boys in the line were talking about it. Ms. Parker, the reading coach at Yniestra, was also in the hallway. Respondent asked Ms. Parker whether the shirt was inappropriate, and in Ms. Parker's view, Respondent was speaking about the shirt too loudly and where the class could hear her. Ms. Parker felt that Respondent was being confrontational toward the child and that if the shirt was a problem, the proper procedure was to send the student to the clinic, where the student could either secure something to wear over the shirt or arrange for other clothing. Ms. Juniper did not report the child or send her to the office, but she admits that she asked the child to cover the t- shirt. The child was never identified at hearing, and did not testify, so it cannot be determined whether the student felt singled out or embarrassed by the incident. On another occasion, Respondent commented upon T.I.'s pants which had a paint-splatter pattern on them. T.R., however, testified that Respondent told T.I. that her clothes were dirty, and when she did so T.I. was wearing cut-up jeans and a white t- shirt which was in fact dirty. T.I. did not testify. The evidence is not clear and convincing that Respondent made inappropriate comments regarding students' clothing. Informal Conference On November 5, 2009, Dr. Cagle requested an informal conference with Respondent to discuss complaints that she had received regarding inappropriate comments to students, such as "you need medication"; "you need counseling, you are crazy"; and "you'll never make it to middle school." Dr. Cagle's notes from the conference indicate that Respondent admitted saying things "like this" but not in the way the statements reported. Dr. Cagle spoke with her about talking with students privately and appropriately. The documentation relates only the events from Dr. Cagle's point of view, with no written comments from Respondent. In February 2010, Dr. Cagle sent Respondent a memo indicating that discipline was being considered for several reports of inappropriate comments being made to students in front of the class, and for not following appropriate procedures. The reference to improper procedures apparently was in response to a report that on at least one occasion, Respondent sent a student to the office for discipline as opposed to having assistance sent to her classroom. The memo outlined strategies for improvement, and Ms. Juniper was given a copy of the Discipline Procedures from the Policy Book and a copy of a memorandum that outlined the steps for discipline. The Treatment of S.J. S.J. is by all accounts, a very bright child, and was at the head of her class. She was generally considered to be a model student. Respondent thought her to be a bright child, but believed she at times had an attitude problem. The Administrative Complaint alleges that Respondent singled S.J. out for disparagement and told other students S.J. was a bad influence and was trying to get Respondent in trouble. The allegations regarding S.J. revolve around three incidents: a claim by Ms. Brees, the art teacher, that Respondent singled S.J. out for rebuke in the hallway; a claim by Ms. Brees that she reprimanded S.J. in the classroom when S.J. had done nothing wrong; and an incident where Respondent allegedly tore S.J.'s citizenship card. Ms. Brees was the art teacher at Yniestra, and taught there for six years. Her classroom is in a portable whereas Ms. Juniper's was on the second floor of the school building. Ms. Brees describes two incidents that led her to believe that Respondent had singled out S.J. for disparaging treatment. The first was an incident where students from Ms. Juniper's class were standing in line in the hallway. According to Ms. Brees, Respondent accused S.J. of talking and berated her for doing so, when S.J. was actually one of few students standing quietly in line. There was no testimony as to when this incident occurred, or how long Ms. Brees had been observing the conduct of the students. It is impossible to tell, from the evidence presented at hearing, whether S.J. may have been misbehaving before Ms. Brees observed her or whether Respondent in fact singled her out for rebuke. The second incident occurred at the end of art class on or about February 16, 2010, when Respondent went to pick up her students and escort them back to lunch. She and Ms. Brees were standing in the doorway to Ms. Brees' portable. According to Ms. Brees, she was standing in the open doorway, with her back against the frame of the door. Ms. Juniper was standing in the open doorway of the portable but was partially inside the classroom. While the students were waiting to line up to leave, Ms. Juniper testified that saw S.J. make a "smart face" at Ms. Brees and say something under her breath. She told S.J., "that is not appropriate. You are our valedictorian and should be an example to others." Ms. Brees testified that she did not see or hear S.J. do anything that needed correction. While Ms. Brees testified that she could see S.J. the whole time, and Ms. Juniper testified that Ms. Brees could not, from both women's descriptions, Ms. Juniper would have had a better view of the children and was closer to them in terms of hearing what was said. It is found that Respondent had a basis to correct S.J.'s behavior and did so. Ms. Brees acknowledged that there are times when a student can present behavioral issues for one teacher and not for others. Moreover, there was a prior incident to which Respondent testified she had observed Ms. Brees speaking to a student in what she believed to be an inappropriate manner, and had told Ms. Brees that she "couldn't say those things to a kid." Whether or not Ms. Brees acted inappropriately in the prior incident is not an issue in this case. However, Respondent's comment on Ms. Brees' behavior, whether or not warranted, may have had an effect on her attitude toward Respondent and her view of Respondent's behavior. In any event, after the incident in the portable, Ms. Brees wrote an e-mail to Ms. Cagle complaining about Respondent's treatment of S.J. The third incident involved the tearing of a citizenship card (also referred to as a conduct card. On or about March 8, 2010, Respondent was filling out a citizenship card for S.J. and S.J. asked her for it. Ms. Juniper was not finished writing on the card when S.J. reached for it, and the card tore as she took it. Although S.J. knew that Ms. Juniper had not torn the citizenship card, she told both her mother and Dr. Cagle that Respondent had ripped the citizenship card into pieces. She did not retract her statement until after the school year ended and never told Dr. Cagle that her accusation was not true. After the incident with the conduct card, S.J. started keeping a log of things that Respondent did or said that she felt were improper. Shortly thereafter, on March 12, 2010, Dr. Cagle issued an e-mail to Respondent and to Ms. Sheater, stating: "[S.J.] will be moved to Mrs. Sheater's class effective Monday, March 15, 2010. This is at the mother's request and I believe it will be the best for all parties involved." At the time Dr. Cagle made the decision to transfer S.J., she had both the e-mail from Ms. Brees and a complaint from S.J.'s mother in response to the alleged incident with the conduct card. Transferring the child to another classroom under these circumstances was reasonable. However, the question remains what would cause S.J. to pull the conduct card from Respondent's hand in the first place, and then lie about the incident to both her mother and to Dr. Cagle. It is implausible that a model child with absolutely no discipline or attitude problems would attempt to snatch something out of her teacher's hand to the point of tearing it. The circumstances related to the torn citizenship card lend credence to Respondent's testimony that she was recording on the card that S.J. had been disrespectful and belligerent in class that day, and that the citizenship card would reflect that information. Contrary to Ms. Brees' testimony, the guidance counselor, Ms. McGowen, testified that she had been in Ms. Juniper's classroom and that her interaction with students was appropriate. She did not believe that Respondent singled out S.J. for disparagement. She testified that Respondent had actually come to her about S.J., stating that S.J. may need to talk to Ms. McGowen about some personal problems away from school. Respondent testified that she had suggested to S.J.'s mother that she go to guidance. Given this testimony, it is plausible that, for whatever reason, S.J. resented Respondent and/or did not behave as well in her classroom as she did elsewhere. Whether or not that is the case, the evidence is not clear and convincing that Respondent singled her out for disparagement. The Code Yellow On or about April 5, 2010, a lockdown was initiated at Yniestra. Lockdowns could be a code yellow or a code red. A code yellow indicates that there is someone around the premises or in the nearby community that could be or cause danger. In that circumstance, a teacher was to account for all of the students in her class, and if accounted for, place a green sheet of paper in the door, lock it, and continue instruction quietly. A code red indicated that someone has broken into the building. The same procedures are followed as for a code yellow, except that students and staff are to remain silent and stay away from windows and doors. The lockdown on April 5, 2010, was extremely long. Initially, all of the students in Respondent's class were at a reading table in the back of the classroom. As the lockdown continued, however, the students became restless and were talking. Some of them were under the table, laughing, cutting up, and banging their heads. Respondent instructed them to be quiet, but to no avail. Ms. Juniper called the front office to find out why the lockdown was taking so long, and no one answered. She then called Ann Choat, a curriculum coordinator for the 2009/2010 school year at Yniestra, to ask what was going on, and told Ms. Choat that she had called the office and could not get anyone. Ms. Choat confirmed at hearing that she had received the call and testified as to the contents of the conversation, yet none of the students remembered whether Ms. Juniper used the telephone during the lockdown. This is significant because it indicates to the undersigned that the students were paying more attention to their own conversations, which they were not supposed to be having, than to what Ms. Juniper was doing or saying. D.L. was one of the students who was laughing with her friends. When the students did not follow her directions to be quiet, Ms. Juniper moved her away from the other students to a spot along the wall under the windows, on the same side of the room as the door. Her head was not above the windows and she could not be seen from outside the room. At least one other student was also moved in order to get the students to be quiet. D.L. testified that she did not like being moved, and told Respondent that if someone was outside, they could see her and shoot her. D.L. testified that Respondent said she hoped the person would come in and shoot them. Respondent adamantly denies making such a statement, and testified that she responded to D.L. by saying "I hope you aren't shot, but if you keep talking like that, I couldn't stop one from coming through this door." The testimony from other students regarding this incident was varied. Some testified that it was a code red, while others testified it was a code yellow. Students remembered other students being moved from the back of the room, but could not remember who or how many were moved or the location to which they were moved. They could not remember whether D.L. was talking to Respondent before Respondent's comment, and if they could remember, did not recall what D.L. said. All remember some version of Ms. Juniper saying she hoped that those who were talking got shot. Given the level of noise in the room and the inability to remember other details about the lockdown, it is just as likely (and more plausible) that Ms. Juniper said "I hope you aren't shot" as opposed to saying "I hope you are shot." Dr. Cagle acknowledged that children sometimes relate what they thought they heard rather than what was actually said. It is farfetched to believe that these students, who were holding their own conversations and could not identify with certainly any of the details surrounding the lockdown, suddenly heard with crystal clarity exactly what Ms. Juniper said. In any event, the evidence does not rise to the level of clear and convincing evidence that she told her students she hoped they were shot. Whether or not she actually made the statement, it is clear that D.L. believed that she did. She became very upset and once the lockdown was over, Respondent sent her to Ms. Sheater, the other fifth-grade teacher, so that she could take a few moments and calm herself down. While in Ms. Sheater's room, she relayed her version of the events to Ms. Sheater, who instructed D.L. to write down what happened, and called Ms. Parker, the reading coach. Ms. Parker had D.L. come to her room and tell her what happened. D.L. was visibly upset. Ms. Parker spoke to another, unidentified student in the hall who was in Ms. Juniper's class, who verified D.L.'s story. She then called Dr. Cagle and to report the incident. Discipline by the School District Dr. Cagle spoke to D.L. and then spoke to the other children in the classroom. As a result of her investigation, the district office was notified of the incident, and Ms. Juniper was immediately placed on suspension with pay while the incident was investigated by the district. After the district's investigation, on May 12, 2010, Respondent received a letter of reprimand "for use of abusive, rude or inappropriate communication both to, and in front of, students and other employees at Yniestra Elementary School." She was required to attend the staff development training titled "What is it about me you can't teach?" and to meet regularly with her principal to discuss any and all concerns regarding her students. Participation in the Employee Assistance Program was suggested but not required. Respondent grieved the reprimand through the district's process for doing so. Consistent with the notice provided in the reprimand, Responded prepared a written response which stated in part: As a 36 year veteran teacher, I have spent the last ten years at Yniestra Elementary. I have received commendations from students, parent and administrators throughout my career. I have always conducted myself in a professional manner, keeping the best interests of my students in my mind. I am cognizant of their individual differences, respectful of their feelings, and doing my best to meet their needs. Your letter stated that it was given to me because of my professional demeanor was determined to be inappropriate. Incidents that occurred during the 2009-2010 year were interpreted to portray me in a negative light and to shed doubts on my professionalism. I believe the District's decision to discipline me is based on information obtained from biased and shoddy investigations, giving undue weight to statements made by students known to have discipline issues in my and other classrooms. This led to a faulty conclusion, casting me in a negative light. . . . The 2010-2011 School Year A. Abusive Statements Dr. Cagle changed Respondent's teaching assignment for the 2010-2011 school year from the fifth grade to the second grade. She testified that she believed there would be fewer disciplinary challenges in a second-grade setting because children generally love their teachers at that age and are generally easier to manage. In her view, it was a better match for Respondent. She acknowledges that there were fewer issues in this school year. Dr. Cagle testified that while there were fewer issues, at least three or more students complained to her that Respondent made derogatory comments to them or put her hands on them when she was angry. On October 22, 2010, she sent a memorandum to Respondent directing her to come to the office and discuss allegations that she made inappropriate comments in class and engaged in inappropriate touching of students. Although the memorandum indicated that documentation gathered regarding these issues was attached, no such documentation was entered into evidence. Further, no student testified that inappropriate statements were made to them or that Respondent touched them inappropriately. Dr. Cagle could not name any of the students that she states complained to her. Clear and convincing evidence was not presented to support the allegation that Respondent made disparaging or inappropriate remarks to students. The only evidence to support the allegation regarding inappropriate touching involved an incident with K.S., which is discussed below. The Bathroom Incident Judy LaBounty, was a curriculum coordinator for Yniestra and Hallmark Elementary Schools during the 2010-2011 school year. She testified that on or about October 15, 2010, she was standing in the hallway of the school and saw Ms. Juniper and her class as the girls were going to use the restroom. According to policies instituted by Dr. Cagle, students and staff were not supposed to talk in the hallways. She said that it appeared that Respondent was upset or angry, and she called a student from the restroom to the door. When the student appeared, she took her by the arm above the elbow, pulled her over to the wall and leaned over to speak to her. Ms. LaBounty stated that she was about ten yards from her and could not hear her, but from both people's body language, she was reprimanding the student in an angry tone. Ms. LaBounty did not know why Ms. Juniper was reprimanding the child, whom she could not identify by name, but simply knew she was trying to get the child to leave the restroom. She notified Dr. Cagle of the incident because Respondent had put her hand on a student. The student involved in this incident was K.S., an energetic and bright young girl. On this particular occasion, K.S. said another child was "messing with me" in the bathroom, so she jumped on the other girl's back. The other child came out of the bathroom with tears in her eyes. When Ms. Juniper asked her what was wrong, she relayed that K.S. had jumped on her. Ms. Juniper called to K.S. to come out of the bathroom and had to call more than once. When she came out, according to K.S., Ms. Juniper "gently pulled me out of the bathroom and she just talked to me about it." Ms. Juniper's testimony is consistent with K.S.'s, and Respondent admits taking K.S. by the arm as she exited the bathroom. Both Ms. LaBounty and Dr. Cagle stated that it is against Escambia County School District policy to lay a hand on a child. However, no copy of any policy was placed into evidence, and without the policy in evidence, no analysis of its parameters can be made. In any event, from the evidence and the demeanor of the witnesses, it does not appear that there was any attempt by Respondent to yank on K.S.'s arm, engage in corporal punishment, or to hurt K.S. in any way. Birthday Licks M.W. is a special education student in the extended services program for the Escambia County School District. At the time of the incident he was approximately 19 years old, and worked as a volunteer at Yniestra. He is described as a good worker with limited academic skills. February 22, 2010, was M.W.'s birthday, and consistent with school custom, he was wearing a birthday ribbon. The students in Ms. Juniper's class wanted to make him a birthday card, and Ms. Juniper gave them permission to do so. When M.W. went into Ms. Juniper's classroom that day, one of the children asked to sing "happy birthday," and they did. After singing to him, someone suggested that the students give him "birthday licks." While the testimony is in dispute as to whether Respondent suggested the licks or simply acquiesced to them, it is clear that she allowed at least two of the students in the class to hit M.W. on either his buttocks or his lower back, and at least one child hit him hard. M.W. was uncomfortable with the process and told Ms. Juniper that "this was not a good idea." At some point, Dr. Cagle walked into the room and witnessed the children giving M.W. birthday licks. She immediately told Ms. Juniper that it was not appropriate, and had M.W. leave with her. Dr. Cagle had M.W. visit the clinic where he was examined for any injuries caused by the licks. None were noted. However, M.W. was embarrassed by the incident and felt he was in trouble for it. Respondent did not think anything of having the children give M.W. birthday licks, because during the many years that she taught for the Department of Defense schools overseas, giving birthday licks was routine. However, Respondent had been in the Escambia County School District for several years, and should have known that it was not part of the culture in this setting. Moreover, having second graders give licks to a much older special needs student was clearly inappropriate. Later in the day, Respondent took the card her class had made to M.W., and he was still upset. She was then called to the office and told to pack her things because she was being suspended. She told Dr. Cagle that the incident was her fault and she would take the blame for it. Respondent was placed on suspension with pay during the investigation of the incident. Ultimately, she was suspended without pay for two days, beginning Wednesday, April 20, 2011, as discipline for the incident. The Relationship Between Dr. Cagle and Respondent Evidence was presented at hearing regarding the changes at Yniestra once Dr. Cagle became principal, for the purpose of showing bias or prejudice concerning Dr. Cagle's testimony.3/ Dr. Cagle did not know Respondent before she became principal, and before that time her contact with Respondent was limited. However, it is clear that Dr. Cagle's management style was very different from that of her predecessor, Nancy Reese. This proceeding is not the place to determine which, if either, style is or was more effective, but it is clear from the testimony that not all teachers who had taught under Ms. Reece were thrilled with the changes. Several testified that they were removed from committee assignments and did not feel that their contributions were respected by the new leadership. Several transferred or retired rather than stay at Yniestra. Yniestra was scheduled to close after the 2010-2011 school year, and Dr. Cagle was to stay on and serve as principal for the Global Learning Academy, an elementary school that would open in the same location as Yniestra. From the totality of the evidence, it appeared that Dr. Cagle was "cleaning house" in terms of staff. While there is no question that some of the events alleged in the Administrative Complaint in fact occurred, it also appears that Dr. Cagle was motivated to remove Respondent from her position. As Ms. McGowen stated, she did not believe Respondent could please Dr. Cagle. For example, on June 23, 2011, Dr. Cagle wrote to the Department of Education about Respondent's performance. At hearing, Dr. Cagle indicated that she wrote the letter at the request of an investigator at the Department of Education. The letter, however, makes no reference to a pending investigation and makes several statements that are inconsistent with the other evidence presented at hearing. For example, the first bullet point states that: Ms. Juniper is emotionally unstable. She lost her son unexpectedly right before school starts. She cries often and for long periods of time. She talks about his death daily to her class. She talks endlessly to anyone who will listen about him. I encourage her to go to counseling but she says she does not need to go. Dr. Cagle acknowledged at hearing that she is not qualified to determine emotional instability, and no fitness-for- duty evaluation was ever requested. No other staff member from Yniestra testified that Respondent was mentally unstable. To the contrary, Linda Mashon (who retired in September 2010), Uadona Lobley (who transferred after the 2009-2010 school year), Holli Herron (who transferred after the 2010-2011 school year), Jennifer Kemp (who transferred after the 2009-2010 school year), and Ann Choat (who retired after the 2009-2010 school year) uniformly described Respondent as having a reputation of being a professional who worked well with her students and, notwithstanding the loss of her son, none of them considered her to be unstable. Dr. Cagle's letter identified several inflammatory statements that she attributed to Respondent, some of which were alleged in the Administrative Complaint and some of which were not. Although this letter is supposed to be part of an investigation into Respondent's behavior, she gives no specifics as to the identity of the students to whom these statements were made, who reported them, or when they were made in order for the Department to investigate. The letter states that "eight parents requested that their child be placed in another class the year [sic]." At hearing, she testified specifically about a request from D.V. that her daughter not be placed in Respondent's class: Q. And can you tell us the reasons why these parents asked that their child be removed from Ms. Juniper's class? A. The first request came before the first day of school. It came from a parent, Ms. V. Q. What is Ms. V's first name? A. D.V. That her daughter not be placed in Ms. Juniper's class. That she had past experience with Ms. Juniper. I believe her words were, the lady is crazy, I don't want my daughter in that classroom. And I put her in Ms. Sheater's classroom before school started. The other incidences, the other students that were moved were for various reasons. It was typically the result of a situation that occurred between Ms. Juniper and their child and that they wanted another teacher. When she was asked on cross-examination whether the placement request could have been because Respondent and D.V. were friends and Respondent had known the child for years, Dr. Cagle stated that was not what was told to her and she had no knowledge of their friendship. D.V. was the only parent that testified at hearing whose child was reassigned. D.V.'s testimony, however, directly contradicted that of Dr. Cagle. She credibly testified that she met with Dr. Cagle as she has met with the principal each year with respect to her child's placement. According to D.V., her daughter, J.V., is adopted and has bipolar disorder. She is strong willed and can be manipulative. She flatly denied telling Dr. Cagle that she did not want J.V. in Respondent's class because Respondent was crazy: to the contrary, she did not want her placed in Respondent's class because J.V. and Ms. Juniper knew each other too well, and D.V. felt that her daughter would "make a run on Deidra, play on her, on our relationship." She denied ever thinking that Respondent was unstable and denied telling either Dr. Cagle or Ms. Parker that Respondent was crazy. Finally, the letter states that the former principal "said she felt sorry for her because of her divorce and did not take enough action but encouraged her to go to counseling." However, Nancy Reece's testimony at hearing is inconsistent with such a statement. Ms. Reece testified that Respondent was a very professional teacher who stayed on task and exhibited good quality teaching. The testimony and other evidence presented convinces the undersigned that for whatever reason, Dr. Cagle was willing to believe the worst of Respondent and not likely to give her the benefit of the doubt should a complaint arise. To be sure, there is at least one incident of inappropriate behavior that has been proven by clear and convincing evidence. However, Respondent is not the unstable, out-of-control disaster that Dr. Cagle clearly believes her to be. Dr. McDonald's Evaluation For mitigation purposes, Respondent was evaluated by Dr. Randi McDonald to obtain a current psychological evaluation in order to determine the presence of mental health issues that impair her ability to continue working as an elementary school teacher. Dr. McDonald is a forensic psychologist with a doctorate degree in psychology. She has been licensed in Florida since 2009. Dr. McDonald conducted a forensic evaluation which included the administration of psychological tests, interviews with Respondent, and review of the Department of Education file. She ultimately opined that Respondent does not suffer from any significant psychiatric issue which would affect her ability to teach. She did, however, stated that the testing revealed that Respondent does not want to admit to even minor shortcomings and faults that most people have, and that her "underreporting" was consistent with her very traditional background. Dr. McDonald stated that Respondent has difficulty seeing weaknesses because they "just don't register in how she defines herself." As stated in her report, It is this evaluator's clinical impression that Ms. Juniper is perfectionistic and somewhat over-controlled in her general approach to life and her interactions with others. These qualities can be quite positive, in that they likely contribute to excellent organizational skills and leadership capacity and have most certainly played a part in her success as a teacher over the years. On the other hand, these qualities can make her less amenable to change at times. . . . Dr. McDonald's evaluation is consistent with Respondent's demeanor and responses at hearing. Several of the allegations in the Administrative Complaint were not proven by clear and convincing evidence, and in some instances, a change of phrase makes a great deal of difference in how behavior is perceived. The evidence as to some alleged events was simply not sufficient to meet the clear and convincing standard. However, even in those instances where Respondent essentially admitted to the behavior at issue, she tended to minimize her role in the negative result.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g), Florida Statutes, and rule 6B-1.006(3)(a) and (e), and placing Respondent on probation for a period of two years, subject to terms and conditions imposed by the Commission. DONE AND ENTERED this 31st day of August, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2012.
The Issue The issue in this case is whether just cause exists to sanction Respondent, Diana O'Neill (hereinafter "O'Neill"), for violation of Florida Statutes and Florida Administrative Code Rules governing the conduct of teachers in the State of Florida, and, if so, what sanction(s) should be imposed.
Findings Of Fact The Department is responsible for overseeing all teachers and staff members of public schools in the State of Florida. It is the duty and responsibility of the Department to ensure that all teachers follow the rules of professionalism and conduct set forth in the Florida Statutes and the Florida Administrative Code. The Department issues a teaching certificate to each instructor employed by a school and has the right to sanction teachers for wrongdoing. Sanctions may include revocation of the teaching certificate. At all times relevant hereto, O'Neill was employed by the School as a teacher for severely and profoundly mentally handicapped children. During the School Year, O'Neill had five or six students in her classroom. Relevant to the discussions herein, three of those students are identified as O., A., and T. O'Neill has a master's degree in curriculum and instruction, a bachelor's degree in science and education, and a certification in elementary and special education. She has been certified as a teacher in Florida for over 21 years. She was hired by the School in 1990 and taught mentally handicapped children there without interruption until January 29, 2008. In all the years O'Neill taught at the School, she received only superior evaluations and had never been subject to discipline. During the School Year, however, there were a number of complaints made against O'Neill by her classroom teacher's aides that resulted in O'Neill's suspension and removal from the classroom. Those allegations form the basis of the Department's decision to impose sanctions against O'Neill. The Students O. was seven years old during the School Year. At ten weeks of age, O. had been diagnosed with a genetic heart disorder which necessitated open-heart surgery. As a result, O. is developmentally delayed and has severe hearing loss and some negative vision issues. O. understands some of the things going on around her to a limited degree. She says only one word, "Go," and cannot generally communicate with others. She laughs at certain things, feels pain, and is only slightly ambulatory. O. is not toilet-trained and has no sense of danger or awareness of potential harm around her. A. was eight years old during the School Year. He has an atypical type of Downs Syndrome, i.e., while he does not have the physical appearance of a Downs Syndrome child, he does have the low muscle tone. A. was only beginning to learn to walk during the School Year, but he could see and hear well. He is not toilet-trained and needs assistance with all aspects of his daily activities. When he began walking, A. utilized a standard walker, then graduated to a pull-behind walker that helped him stand more upright. When A. would tire of walking, he would simply drop to the ground wherever he was at that moment. Due to some gastro-intestinal problems, A. had a G-Tube port surgically inserted in his stomach. The G-Tube port must be cared for in order to prevent infection. T. is a profoundly mentally handicapped girl, who was 11 years old during the School Year. She has a condition called hemimegalencephaly and experiences seizures. T. has only minimal vision and cannot walk or talk. She can hear sounds and directions and is able to move her hands and arms. When she was very young, T. underwent an operation called a hemispherectomy that resulted in a row of stitches across her entire skull. The area around the stitches is very sensitive, and T. dislikes having her head touched for any reason. During the School Year, T. was placed in a device called a "Stander" that allowed her to stand upright for limited periods of time. She seemed to like the Stander and her parents approved of it, but that device is no longer used at the School. Due to the extensive nature of her condition, all therapies for T. have been discontinued. The Classroom O'Neill's classroom during the School Year was set up so that she could deal with the various issues confronting severely mentally and physically handicapped children. The classroom contained restrooms for toileting the children and various equipment and furnishings to assist in their educational training. The primary focus for O'Neill was to develop as much independent functioning for the students as possible based upon their individual abilities. None of the students in O'Neill's classroom was able to understand even rudimentary academic work, so the focus was on various daily living needs. There were two teacher's aides in the classroom during the School Year: Cooke and Anderson. Cooke was basically trained as an aide, beginning with her first position in 2004. She attended college for three years, but did not graduate. She also worked with O'Neill during the 2006-2007 school year, i.e., the year immediately prior to the period at issue in this proceeding. Anderson had previously worked in O'Neill's classroom in the 2004-2005 and 2005-2006 school years. Anderson worked at a different school in the 2006-2007 school year. When Anderson elected to return to the School in 2007, O'Neill (who was the union representative at the School), provided her with some assistance. The degree or kind of assistance is disputed, but it is clear that O'Neill did not object to Anderson returning as her aide. Both aides in O'Neill's class respected her and believed she knew how to teach mentally handicapped children. Both admitted learning a lot from O'Neill. The aides, however, were somewhat intimidated by O'Neill, ostensibly due to O'Neill's status as a union representative. There does not appear to have been any social interaction between O'Neill and the aides outside of the school setting. It was the duty of the aides to assist O'Neill in the classroom. O'Neill gave them certain tasks and expected the aides to perform them independently and effectively. O'Neill created a kind of calendar setting forth each aide's duties on a weekly or monthly basis. The aides would perform many of the same tasks done by O'Neill, and there appears to have been a generally amiable relationship between the women during the first part of the School Year. In addition to the aides, there were other adult visitors to the classroom. One of the students had personal nurses who would come into the classroom on a regular basis to care for the child. Physical therapists, occupational therapists, speech and language pathologists, and other teachers, as well as the School principal would be in the classroom at any given time. The room itself had two doors, one that opened up to the hallway and one that connected the classroom with a large therapy room. Neither of the doors was kept locked on a regular basis, but sometimes the door to the hallway would be locked if someone forgot to physically unlock it in the morning. There was a window out to the hallway, but that window was covered up with equipment and the blinds closed at all times. O'Neill's Actions In the first half of October 2007, during the School Year, O'Neill decided to attempt the use of a gait belt on A., based on A.'s actions. He would often refuse to cooperate when moving from the classroom to another room, he would sometimes wander off, and he would often just sit down wherever he was. A gait belt is a strap that can be secured around the torso of an individual and used as a means of assisting the person when they are walking. Gait belts are used on physically handicapped individuals, the elderly, and children. A. had become less cooperative as he became more ambulatory, and he would often attempt to elope instead of returning to the classroom. O'Neill believed that a gait belt would be helpful in this regard. One day as the lunch period was ending and the class was preparing to return to the classroom, O'Neill wrapped the gait belt around A., just below his armpits. She did not put the belt lower, because she was being careful to avoid A.'s G-Tube site. As she held the door open for other children, she felt A. starting to slip away and held the belt taut so as to keep him from eloping. At this point, the descriptions of the event differ greatly between O'Neill and the aides. O'Neill says she felt the belt get taut, then looked down and saw that A. had lifted his feet off the ground by bending his knees. She then lowered him to the ground and directed him to stand. At the same time, she lifted up on the belt to assist him with rising up. Once he was off the ground, however, he refused to unbend his knees, and she was essentially holding him up in the air again. She lowered the belt and again ordered A. to stand up. She raised him up a third time, but he still would not cooperate. Frustrated, she removed the belt and got A. to return to the classroom by manually picking him up every time he dropped to the ground. Cooke remembers A. being placed in the gait belt. As O'Neill had said, A. was not being cooperative. However, in response to him falling to the ground, O'Neill began to yank the belt--and A.--up and down like a yo-yo, yelling at A. the entire time. The situation made Cooke very uneasy, and she thought O'Neill's actions were improper. Anderson remembers O'Neill warning A. that if he did not begin to walk back to the classroom, she (O'Neill) would get the gait belt. A. would sit, O'Neill would "boot him in the bottom," and he would only move a little. So, O'Neill eventually got out the gait belt and put it on A. She then started yanking A. up and down by the belt "like a yo-yo." Anderson told O'Neill to stop because she believed O'Neill's actions were improper. O'Neill laughed at Anderson, but she also stopped yanking on A. There was some evidence of abrasions or bruises on A. at about the time of the incident, but the testimony was insufficient to prove that the marks were caused by the gait belt. The testimony of the two aides is more credible based upon their corroboration of each other, their absence of pecuniary interest in the matter, and their demeanor. This is not to say that O'Neill does not remember the event exactly as she described it, only that the description provided by the aides seems more believable in consideration of all the testimony. During the School Year, O'Neill began to strike the students with various objects, e.g., a water bottle wrapped in a koozie, a tennis ball sleeve wrapped in carpet, a small catalogue or magazine, and a cardboard sign covered with a piece of carpet. O'Neill referred to the striking as a "bop" on the head or arm, done lightly and solely for the purpose of getting the child's attention or playing with them. Again, the aides' perception differs. They remember the strikes to be much heavier in nature, done in anger or frustration. There is no way to ascertain with any degree of certainty as to how O'Neill used the objects on the students. T. had one physical condition that is of significance to this matter. Due to her physical development, T.'s bottom lip would often become dry and flaky. It was necessary to keep ointment on her lip and to carefully cut off the dried skin at times. T.'s grandmother would often come to the school and take care of that task. On at least one occasion, but likely more than once, O'Neill pulled the dried skin off T.'s lip, rather than remove it with scissors. O'Neill admits to pulling the skin off during a school year prior to the year at issue. She says it was done because she did not want T. to go out in public with an aesthetically displeasing appearance. Cooke, however, remembers numerous instances during the School Year in which O'Neill would "yank [the skin] right off her mouth." T. would utter a cry of pain, and O'Neill would simply laugh as if it were a funny thing she had done. Cooke said T.'s mouth would bleed when this happened, but T.'s mother did not testify as to whether she saw evidence of bleeding when T. came back from school. O'Neill would also be somewhat caustic in her comments about the students. She often referred to O. as "Oblivia" and said T. was "just sitting there, using up oxygen" (or something to that effect). When an aide raised questions about striking the children with objects, O'Neill said something akin to, "So what, am I going to cause them brain damage?" O'Neill admits that her language was sometimes curt and that she used dark humor in order to deal with a very stressful job. She denies ever saying anything meant to harm or demean the students she taught. O'Neill struck one student, T., on one occasion, although the exact nature of the event is disputed. One day while attempting to instruct T. how to distinguish between food and drink, O'Neill got frustrated. Despite O'Neill's best efforts, T. would not cooperate by selecting the appropriate picture placed in front of her. After numerous attempts, O'Neill finally gave up and brushed her hand against T.'s head. O'Neill described the action as a soft brushing of T.'s hair; the aides remember it differently. They describe O'Neill actually hitting T. with a backhand motion, striking her with sufficient force to make T.'s head move suddenly. The aides saw that event as egregious enough to report immediately and went straight to the principal's office. The aides' reporting of the incident with T. was, in their view, necessary in order to prevent O'Neill from further inappropriate behavior. While they had been reticent to report O'Neill earlier because she was a union representative and held some degree of authority over them, they finally had seen too much. The aides had reported O'Neill's behavior to the school nurse earlier. After that report, O'Neill stopped her questionable behaviors for a while. The behaviors returned however, and apparently got worse. In response to the report, the principal placed O'Neill on administrative leave pending an investigation. She had been aware of prior alleged incidents involving O'Neill, but did not take any action at that time as it appeared the situation had been resolved by the aides' reporting to the nurse. However, the latest incident, an alleged assault on a student, required immediate action. As a result of her investigation, the principal then withdrew O'Neill permanently from the classroom. O'Neill has a long history of working with mentally handicapped students. She started work in this area while still a high school student and became enamored with the subject from the beginning. In addition to her teaching duties, O'Neill has also done extensive volunteer work with the special needs students. It is quite obviously her passion. O'Neill is married and has a stepson. Her mother now resides in the Sarasota area. She does not acknowledge any particular stressors in her life during the School Year, but her behavior indicated otherwise. Besides the aforementioned actions concerning her students, O'Neill's interaction with other professionals was also somewhat strained. At least one professional consultant who interacted with O'Neill during the School Year reported that she was less flexible and agreeable than in the past. O'Neill's aides saw a great difference in her demeanor and behavior in that year versus prior years. O'Neill denies feeling "burned out" during the School Year, but there are numerous indicators to suggest that her behavior had changed. The nature of her actions, vis-à-vis her students, who she seemed to love, suggests a high degree of stress. Her behaviors during the School Year were so different from her historical style that something must have been amiss in her life.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Dr. Eric H. Smith, Commissioner of Education, imposing upon Respondent, Diana O'Neill, the following penalty: Suspension of Respondent's teaching certificate through the end of the 2010-2011 school year, followed by two years of probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2011. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue The issues are whether Respondent, William Doran, committed the acts alleged in the Statement of Charges and Petition for Ten-Day Suspension Without Pay, and, if so, the discipline to be imposed.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at SMS, a public school in St. Lucie County, Florida, pursuant to a professional services contract. Respondent has been employed by the School Board for approximately eight years. Respondent most recently provided individualized instruction and assistance to students with individualized education plans. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the St. Lucie Classroom Teachers’ Association. Lydia Martin, principal of SMS, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year On November 8, 2010, Respondent was counseled by Principal Martin for discourteous and disparaging remarks to students causing them to feel unnecessary embarrassment. Students and parents reported that Respondent made comments in the classroom including “the Bible is crap and we should not believe it,” told students they could not work in groups because they “would just bullshit,” called a student “stupid,” and referred to a group of African-American students as the “black coffee group.” Parents also expressed concern that Respondent discussed prostitution and told students that, in some countries the younger the girls are, the better it is considered because they have not lost their virginity. Respondent denied saying that the Bible is “crap” but admitted telling students that he did not believe in it. Respondent denied calling a student stupid but admitted that he told a student certain choices may be what a “not so smart” person would do. Respondent admitted to referring to a group of black students as a “coffee klatch,” but denied any reference to race or ethnicity. Respondent admitted discussing prostitution in the context of human rights and his personal observations of sex trafficking while serving in the military in East Germany. Principal Martin provided Respondent with a written Summary of Conference that stated, “In the future, do not make comments to students that may cause them embarrassment or that are unprofessional. My expectation is that you will treat students with respect and follow the district guidelines under 6.302 Employee Standards of Conduct and Code of Ethics for Educators.” On May 2, 2011, Principal Martin gave Respondent a Letter of Concern for making comments to a student that caused embarrassment to the student when Respondent stated that, “somebody cried about not getting their stupid PTO FCAT Goodie bag” and that “they were filled with cheap candy.” The daughter of the PTO president was in the class. The 2011-2012 School Year During the fall of 2011, Respondent was accused of inappropriately touching students.1/ As a result, on December 5, 2011, Respondent was removed from the classroom at SMS and placed on Temporary Duty Assignment at the School Board district office pending an investigation into the allegations. In a letter from Maurice Bonner, director of personnel, dated December 14, 2011, Respondent was directed not to engage witnesses, their parents, or potential witnesses during the open investigation. While he was working at the district office, two co- workers of Respondent overheard Respondent contact the parents of one of the student witnesses involved in the investigation by telephone to discuss the investigation. Also, during the investigation, it was discovered that Respondent had taken pictures of students when they were misbehaving in his class as a means of disciplining those students. On February 13, 2012, Principal Martin provided Respondent a Letter of Reprimand for the violation of the administrative directive (not to contact witnesses and parents during a pending investigation) and inappropriately disciplining students. This Letter of Reprimand reminded Respondent of his previous counseling and Letter of Concern and notified Respondent that his failure to follow the prior directives or violation of any other School Board policy would result in more severe disciplinary action being taken against him. In May 2012, Respondent received a three-day suspension without pay for embarrassing students. Respondent is alleged to have announced a student’s name in class and stated that he (Respondent) was “just wasting red ink” by grading the student’s paper. Respondent does not deny the statement, but claims he muttered it under his breath, and it was overheard by several students. Respondent embarrassed another student by sharing personal information about her family with the class. A student’s mother had privately discussed with Respondent the fact that her daughter might act out in class due to the distress she was experiencing as a result of her parents’ divorce. During a classroom discussion about families, this student made a comment that she had a “normal” family. Respondent said to the student, in front of the class, “If you’re so normal, where is your father?” Respondent admits this was inappropriate behavior on his part. The 2012-2013 School Year On May 3, 2013, Respondent was in the classroom of another teacher for the purpose of providing additional teaching assistance for several students. On this date, the usual classroom teacher was absent, and a substitute teacher was present. While walking around the classroom, Respondent observed two students, M.M. and A.L., engaged in a game of “slaps,” in which both students tried to hit each other’s hands. Respondent directed M.M. to stop and asked why he was doing the game during class time. M.M. responded that he was trying to cheer up A.L., it felt good, and they liked playing the game. At this time, Respondent was approximately eight to ten feet away from M.M. who was sitting at a desk. Respondent told M.M. that he didn’t care if it felt good for M.M. to “jump off a bridge,” it was not to go on in the classroom and to get back to work. M.M. asked Respondent what he meant and the two began to argue. Respondent approached M.M. and bent over him while M.M. remained seated at his desk. Respondent testified that he closed the gap between him and M.M. when he felt M.M. told him to shut up by saying “get out of my face.” Respondent stated, “At that point I decided I wasn’t going to let him push me around and I decided to engage him.” The credible testimony from several of the student witnesses was that Respondent approached M.M. and stood over him and that M.M. repeatedly asked Respondent to “please, get out of my face” and to leave him alone. M.M. also cursed and used a racial slur directed at Respondent.2/ Respondent told M.M. to get up and get out of the classroom. When Respondent did not move away from looming over M.M., M.M. said something to the effect of “I don’t want to do any of this.” M.M. stood up, and he and Respondent were face to face, only a few inches apart. M.M. told Respondent that he was a grown man and that he was “acting like a bitch.” Respondent repeatedly mocked M.M., yelling in his face, “Come on big man-- What are you going to do about it, hit me?” and told M.M. to hit him because it would “make my day.” Respondent called M.M. a coward several times when M.M. refused to hit Respondent and backed away. While this was going on, the other students in the classroom believed that Respondent and M.M. were going to have a physical fight, and they stood up, pushed the desks and chairs back, and got out their cell phones to take photos and video. Several of the students began screaming and yelling.3/ M.M. left the classroom and continued to curse at Respondent as Respondent followed him to the Dean’s office. During this altercation, the substitute teacher did not intervene or attempt to help or contact the SMS office. Respondent admits that, once M.M. told Respondent to “get out of his face,” Respondent did nothing to de-escalate the situation. To the contrary, Respondent intentionally escalated the altercation. According to Respondent, “He [M.M.] needed to be shown you can’t tell an adult to shut up.” Respondent testified that he believed that he was teaching M.M. a “life lesson”-–that “you can’t engage an adult and expect to get away with it.” SMS has a protocol for handling belligerent students in the classroom. Teachers receive training at the beginning of each school year regarding the difference between classroom managed behaviors and office managed behaviors. Teachers are trained not to engage a belligerent student but rather to use the buzzer which is tied to the intercom or telephone, available in every classroom, to notify the main office of the situation. In response, someone from the trained management team will come to the classroom to retrieve the student and bring them back to the Dean’s office. As explained by Principal Martin, the purpose of sending an adult from out of the classroom to retrieve a disruptive student is to minimize the possibility of harm to either the student, teacher, or other students, and to allow a “cooling off period” while the misbehaving student is escorted to the Dean’s office. During the altercation with M.M., Respondent made no effort to use the buzzer or the telephone or ask anyone else to notify the office of the escalating situation. Respondent was aware of the protocol but chose to ignore it. According to Respondent, “[M.M.] wanted to intimidate me and he failed and I let him know about it.” Respondent was purposely confrontational and testified that he wanted to show M.M. that Respondent “was not going to back down.” Respondent disregarded the protocol because he believed it would be ineffective and he wanted to teach M.M. a “humility lesson.” Respondent’s explanation, that he thought using the buzzer or telephone would be ineffective because sometimes the buzzer does not work or he was blocked from reaching the buzzer by M.M., was not supported by credible evidence. Further it was directly contradicted by Respondent’s explanation that he didn’t contact the office because M.M.’s behavior problems likely started in elementary school and that at this point, M.M. was not responsive to “conventional means of disciplining students.” While the undersigned is sensitive to the difficulty faced by teachers when dealing with confrontational and unruly students, no rational justification was provided for Respondent’s extreme and outrageous act of attempting to engage M.M. in a fight and labeling him a coward in front of his peers. Respondent’s actions were an unwarranted attempt to bully and belittle a middle school student. In May 2013, Respondent received a letter from then Superintendent Michael Lannon advising Respondent that he was recommending him to the School Board for a ten-day suspension without pay. During the School Board’s investigation and at the final hearing of this matter, Respondent expressed no remorse regarding his actions towards M.M. and testified that, despite knowing his actions constitute a violation of School Board policies, he would do the same thing again. Respondent received all the necessary steps of progressive discipline required by the collective bargaining agreement between the parties prior to receipt of the recommendation for the ten-day suspension without pay. As discussed in greater detail below, the School Board proved by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order finding William Doran guilty of misconduct in office, suspending his employment without pay for a period of ten school days, and placing him on probation for a period of one year. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2014.
