Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
The Issue Whether the respondent should be reassigned to the Opportunity School.
Findings Of Fact Emil Perez attended Kinloch Park Junior High School during the 1983-84 school year. He was then assigned to opportunity school at Lee and enrolled there at the beginning of the 1984-85 school year. Because petitioner failed to file the deposition of its witness, there was no competent evidence presented concerning the reason or reasons why Emilo was assigned to the opportunity school. Emilo began to have serious attendance problems after being assigned to J.R.E. Lee. Both the school social workers and the school psychologist who testified at the hearing agreed that Emilo did not go to school at J.R.E. Lee because he was afraid to go to school there. The fear manifested itself through physical symptoms such as diarrhea and vomiting. Mr. Hayes, the school psychologist, defined Emilo's emotional problem as "school phobia", which is similar to separation anxiety disorder. However, although Emilo's fear of school was exaggerated, it was not totally baseless. The students at Lee are more aggressive than the students enrolled in the regular school program, and Emilo was threatened and harassed by the other students when he went to school. Emilo did not have attendance problems while enrolled at Kinloch. Because of Emilo's emotional problems, he would benefit from mental health counseling and assignment to a regular school program.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered disapproving the assignment of respondent to the opportunity school program at J.R.E. Lee and assigning the respondent to the regular school program. DONE and ENTERED this 17th day of September, 1985, in Tallahassee, Leon County, Florida. Diane A. Grubbs, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1985. COPIES FURNISHED: Daniella S. Levine, Esq. Legal Services of Greater Miami, Inc. Northeide Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, FL 33147-4796 Ms. Maeva Hipps School Board Clerk Dade County School Board 1450 N.E. 2nd Avenue, Suite 401 Miami, FL 33132 Mark A. Valentine, Jr., Esq. Assistant School Board Attorney McCrary & Valentine, P.A. Suite 800, 3050 Biscayne Boulevard Miami, FL 33137 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1450 Northeast Second Avenue Miami, FL 33132 Dr. Leonard Britton Superintendent of Schools Board Administration Building Dade County Public Schools 1450 Northeast Second Avenue Miami, FL 33132
Findings Of Fact Respondent is a ninth grade student at North Dade Junior High School. She was born August 22, 1968. Respondent's behavior during the 1983-84 school year has been unsatisfactory and she is no longer responsive to the supervision of school officials. She was counseled or suspended on three occasions for excessive talking in class. She rejected an assignment to a special assistance classroom (C.S.I.) and refused to serve one suspension. She has cut classes and left school without permission on several occasions. A school-parent conference held December 7, 1983, produced no improvement in Respondent's disruptive behavior.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Rose Marie Farrell to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Mary Farrell 2970 Northwest 153 Terrace Opa Locka, Florida 33054 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues to be determined are whether Eric Delucia (Respondent or Mr. Delucia) violated sections 1012.795(1)(c), (g), or (j), Florida Statutes, and implementing administrative rules, as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Delucia held Florida Educator's Certificate 915677, covering the areas of English, English for Speakers of Other Languages, Business Education, and Marketing, which is valid through June 30, 2019. At all times relevant to the Amended Administrative Complaint, Mr. Delucia was employed as a language arts teacher in the Broward County School District. Mr. Delucia stored the documents listed in Petitioner's Exhibit P-2 on his computer, as stipulated by the parties. Mr. Delucia was employed at Cooper City High School during the 2011/2012 school year. Ms. Doll was the principal. Principal Doll testified that Mr. Delucia was in the initial stages of a cycle of assistance during that year. He received a memo outlining expectations and concerns, and was observed by several people. Principal Doll indicated she believed that he had deficiencies in instructional planning, classroom management, lesson plan presentation, and lesson plan delivery. However, Principal Doll confirmed that Mr. Delucia's Instructional Practice Score was a 2.954 for the period January 2012 through May 2012 at Cooper City High School, which was within the "effective" range. Principal Doll stated that there were concerns about his performance based on observations that were done earlier that warranted an outside observer, but those observations were not used for the evaluation. He was never placed on a Professional Development Plan while at Cooper City High School. Respondent requested a hardship transfer and was moved to Ramblewood for the following school year. On January 1, 2013, Mr. Delucia was admitted to the hospital following a series of strokes. Respondent received "effective" scores in both the Student Growth and Instructional Practice components, as well as his overall Final Evaluation for the 2012/2013 school year at Ramblewood. Respondent was subsequently on medical leave of absence during the 2013/2014 school year. On July 1, 2014, Ms. Smith became the principal at Ramblewood. On August 11, 2014, Mr. Delucia returned to Ramblewood from medical leave. On August 14, 2014, Principal Smith was inspecting all of the classrooms at Ramblewood to ensure that they were prepared for the first day of school. She felt that Mr. Delucia's classroom was not ready for students, because it needed a little bit of "warmth." On August 28, 2014, Principal Smith conducted a formal evaluation in Mr. Delucia's classroom. She concluded that the lesson had no clear focus and that it was not on the appropriate grade level for the students he was teaching. In early September, there was a complaint that Mr. Delucia was putting up students' grades on a board in his room. However, Mr. Delucia testified that he posted the grades only by student number, not by name. There was no competent evidence to the contrary. On October 30, 2014, in introducing the genre of mythology to his students, Mr. Delucia made the comment that "[t]he gods viewed humans as pets or sexual toys." While not an appropriate comment for middle school students, there was no suggestion that Mr. Delucia elaborated or pursued this statement further, and this incident did not constitute ineffective teaching. There was no evidence that it caused students embarrassment or harmed students' mental health. There was testimony that on October 30, 2014, Mr. Delucia also spent class time explaining that the fact that a Star Wars' character had no father would have been taboo in 1976 and discussing that the episodes of that movie series were released out of the chronological order of the story. While the discussion may have gotten a bit off track, it was not clearly shown that discussion of fiction was unrelated to the concept of mythology, might not have enhanced students' understanding of the topic, or was ineffective teaching. While it was clearly shown that Mr. Delucia made the statement, "These kids have the memories of gnats," it was clear that this was said when no students were present and in defense of his actions in discussing fantasy and fables. On December 2, 2014, Respondent said to a student in an angry and loud voice, "Don't you even piss me off." This warning, given in response to the student's statement that the student did not understand something, was inappropriate in language and tone, harmful to learning, and harmful to the student's mental health. Mr. Delucia's statement that he was not visibly angry or speaking in a loud voice on this occasion is not credited. On December 8, 2014, Mr. Delucia met with Ms. Poindexter, his new peer reviewer. At one point in their conversation, he talked about his former principal, Ms. Doll, referring to her battle with cancer. He stated, "She will kick the bucket soon because she has cancer and no one will care when she is gone." He stated, "She's the devil." Mr. Delucia also referred to his current principal, Ms. Smith, as "the devil." He stated, "My motivation is to destroy her with everything I have" and that he "wished the ground would open up and swallow her." Mr. Delucia also referred to the administrative staff as "assholes" and used multiple profanities, stating, "They do not know who they are messing with, but they will find out soon." Student A.F. testified that he heard Mr. Delucia tell Student C.D. that he should jump off of a bridge with a bungee cord wrapped around his neck; tell Student C.D. that if he was a speed bump, he (Mr. Delucia) would run over him; and tell Student C.D. to kill himself a couple of times. However, Student A.F. provided no detail or context for these alleged statements, some of which seemed to involve an incident involving an entirely different student who he testified was not even in his class. He was not a credible witness. On January 8, 2015, Ms. Sheffield observed Mr. Delucia using a four-page packet to teach punctuation to his seventh- grade language arts class. Ms. Sheffield told Mr. Delucia that this was not really part of the seventh-grade curriculum. Mr. Delucia made a statement to the effect of "these students don't know anything, not even the basics, so we have to start somewhere." There was no allegation that this comment was made in front of the students. From the period August 21, 2014, through December 3, 2014, Mr. Delucia's Instructional Practice Score was 1.916, and he was placed on a 90-day Professional Development Plan. Numerous observations by Dr. Jones and Principal Smith followed through the remainder of the school year. Mr. Delucia's Instructional Practice Score improved slightly, but was still less than effective. On January 12, 2015, Ms. Sheffield noticed that one of the vocabulary words written on Mr. Delucia's board for his students was "retard." Ms. Sheffield said she assumed that Mr. Delucia meant the slang term sometimes used as a noun to refer to persons with mental disabilities. Such use of the term, as a shortened form of the word "retarded," would be offensive and disparaging. Ms. Sheffield said that they talked about the fact that it is not appropriate to use the word "retard" as a noun as a reference to the disabled. She testified that he did not respond. At hearing, Mr. Delucia admitted using "retard" as a vocabulary word, but testified that he included the word as a verb, meaning to slow down or delay. Ms. Sheffield testified she did not hear him speak the term, or say anything about it, and there was no other testimony regarding this event. Mr. Delucia admitted that he often said, "If your writing looks like garbage and smells like garbage, then it is garbage." Ms. Sheffield stated that she told Mr. Delucia he might try to find another way to encourage students to write neatly in their journals that was a more positive comment or allowed students to take pride in their writing. On January 26, 2015, Ms. Sheffield testified that when a student returned late from lunch, Mr. Delucia and the student began arguing. Ms. Sheffield credibly testified that Mr. Delucia screamed at the student, "This isn't going to end up good for you. Just shut up." On February 4, 2015, Student A.W. had come in late to Mr. Delucia's class and was acting out in the back of the classroom. When asked why, her response was that other people also did it. Mr. Delucia responded, "If other people jump off of a bridge, would you jump off a bridge, too?" Student A.W., after a moment of silence, retorted, "Yeah, if you give me a bungee cord." Mr. Delucia replied, "If there is a bungee cord, you should wrap it around your neck before you jump." The class started laughing. Student A.W. replied, "You just told me to kill myself, I am telling the office." Mr. Delucia then asked Student A.W. to leave the classroom. While Student A.W. had a disrespectful attitude, Respondent's caustic comments to her were intentionally made in a spirit of mocking humor to subject Student A.W. to embarrassment in front of the class. A class grade graph prepared during the third quarter of the 2014/2015 school year documented that 68 percent of his students were failing at that time. No similar graph for any other quarter of that year, or for other years, was submitted in evidence. On April 7, 2015, the students in Mr. Delucia's class were supposed to be studying Latin and Greek roots of words, but one student did not have a packet and asked Mr. Delucia for one. After Mr. Delucia handed him the packet, the student said, "There is a footprint on this." Mr. Delucia responded, "Get working on studying or else I will call your father." The student replied, "Please don't." Mr. Delucia then said, "Why, because you don't want to get a footprint on your face?" Ms. Sheffield testified that during her observations, she never saw Mr. Delucia standing up interacting with his students. She said she never saw him deliver a lesson to students. For the 2014/2015 school year, Mr. Delucia's score for the instructional practice component on his evaluation was 2.002, a "needs improvement" rating, while his score for both the deliberate practice/growth plans and student data components was recorded as exactly 3.0. The final evaluation for Mr. Delucia in 2014/2015, computed by combining these unequally weighted scores, was 2.511, an "effective" rating.1/ Mr. Delucia was transferred to Piper High School for the 2015/2016 school year. The administration there did not place Mr. Delucia on a Professional Development Plan. Mr. Delucia has not been subjected to disciplinary action during his time at Piper High School, and he has exhibited positive rapport with his students and colleagues. Mr. Delucia's weighted overall evaluation score for the 2015/2016 school year at Piper High School was 2.831, "effective." Mr. Delucia's demeanor at hearing was defiant. His testimony was sometimes evasive and defensive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Eric Delucia in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), (3)(e), and (5)(e); imposing a fine of $3,000.00; placing him on probation under conditions specified by the Commission for a period of two years; and imposing costs of investigation and prosecution. DONE AND ENTERED this 20th day of November, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2017.
The Issue Whether Respondent should be dismissed from her employment with the School Board of Dade County, Florida, upon grounds of incompetency, gross insubordination, willful neglect of duty, misconduct in office and/or absence without leave. POST-HEARING PROCEDURE A transcript of the formal hearing was provided the undersigned on March 21, 1985, and proposed findings of fact and conclusions of law were timely filed by both parties. A subsequently-filed revision of Respondent's initial proposal was accepted without objection and considered. When a party's proposed findings of fact were consistent with the weight of the credible evidence admitted, they were adopted and are reflected in the Recommended Order, but to the extent proposed findings of fact were not consistent with the weight of the credible evidence, they have been rejected or, where possible, modified to conform to the evidence. To the extent proposed findings of fact have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence. A ruling on each proposed finding of fact has thereby been made either directly or indirectly except where the proposed finding of fact was cumulative, immaterial, or unnecessary. Based upon observation of the witnesses and their candor and demeanor while testifying, all exhibits admitted in evidence, and the proposals and arguments of counsel, the following relevant facts are found:
Findings Of Fact Respondent was initially employed by Petitioner on November 15, 1982, at West Little River Elementary School. She suffered a non-school related accident and was absent approximately 121 days during the 1982-1983 school year. Observations of her teaching by her then-principal, John Johnson II, were unfavorable, but due to the prolonged absences, those observations did not result in any formal evaluations/recommendations. Respondent's requested leave for this period was granted and approved by Petitioner upon the basis of her severe electrical shock and back injury. Some of this period was classified as leave without pay. Petitioner also paid Respondent's insurance premiums for this period. Having thus condoned this absenteeism, Petitioner cannot now be heard to complain of it. (See allegations of Paragraph 18 of the Notice of Charges.) Principal Nicholas Rinaldi of Bay Harbor Elementary School hired Respondent as the teacher for its new "home-based" gifted program beginning there for the 1983-1984 school year. Although Principal Johnson would not have recommended Respondent for employment in the second year, he was not consulted by Principal Rinaldi. Principal Rinaldi told Respondent that she was limited to a $1,000.00 budget for purchasing materials for the program she was to develop. Principal Rinaldi understood that Respondent knew she was both to stay within this budget which is the standard limit at all home-based gifted programs and that she was required to get prior approval of her purchases from him. Apparently, Respondent grasped, the concept of a $1,000.00 "cap" but did not initially understand that she was to obtain prior written permission. After two orders were cancelled, she still had overspent by $60.00. She was then told specifically not to make any further purchases without the principal's permission. Thereafter, another order placed by Respondent was received at the school but Petitioner did not establish that Respondent placed the order after the cancellation of two prior orders and after Rinaldi's specific instruction not to order any more goods whatsoever. (See allegations of Paragraphs 1 and 3 of the Notice of Charges.) Respondent was clearly informed that she needed prior authorization for phone calls. She did not get prior permission for five long distance phone calls made personally or by students at her direction. The total cost of these calls is 8.56, which is very minimal. All calls were related to classwork with the exception of one call for $.44 and one call for $.25, which were admittedly of a personal nature. Respondent reimbursed the $.72 after the fact when notified of investigation into the phone bill. (See allegations of Paragraph 2 of the Notice of Charges.) Twenty-five students are required for a home-based gifted program. Bay Harbor was one of three North area schools piloting a home-based program in the 1983-1984 school year. In prior school years, gifted children from Bay Harbor attended a center program physically located elsewhere. A center program places a team of teachers of subjects from various schools in one physical location. Eligible students from various schools come to the center for two days a week for the gifted program and they receive their basic skills education at their respective home schools in the remaining three days per week. In a home-based program, a school which has enough gifted students elects to keep those students physically at the home school. They usually go into that program for two hours a day, every day. Some subject or subjects are used to deliver the gifted program. Those subjects are then graded by the home- based gifted teacher, who in this case was Respondent. When he hired her, Principal Rinaldi told Respondent that mathematics would be part of the new "home-based" gifted program, but math was essentially unstructured in the beginning. Thereafter, Principal Rinaldi instructed Respondent to utilize the standard Dade County "total math program, (TMP). When the TMP program was selected by Principal Rinaldi in approximately, December 1983, his motivation was that he understood TMP provided a structure for math that allows students to enter at the level that they are individually and moves each at a pace commensurate with his individual ability. Unfortunately, because a home-based program does not select its students on their specific giftedness in content area, some students in Bay- Harbor's 1983-1984 pilot program were lower than others in math. Some were even below their grade level. Those above the grade level were becoming bored with the program and those below the grade level were in a constant state of frustration struggling to keep up. A failure on Respondent's part to communicate surfaced, and misunderstandings arose between Respondent and parents and students as to the nature of projects, when projects were due and the reasonableness of homework. Problems concerning teacher absences also arose. The more academic and less "time-out-of-school" atmosphere of a home-based versus a center-based program also caused problems between the Respondent teacher and students/parents and between the Respondent and her principal. Upsets among the students and their parents resulted in many students being permanently removed from the gifted program. Over a period of time, the decrease in enrollment threatened to destroy the Bay Harbor gifted program, the survival of which required 25 students. On January 4, 1984, Principal Rinaldi observed Respondent's class for an hour for teacher evaluation purposes. This resulted in a basically good evaluation with some areas targeted for improvement (instructional planning and maintenance of student records [P-7]). The crux of this targeting was the principal's perception that Respondent did not record sufficient grades and her student files were not arranged alphabetically with papers arranged chronologically within each file. This standard of record-keeping is personal to Mr. Rinaldi and not uniform among other Dade County principals. At the standard post-observation conference, the two argued over the evaluation and the exactitude required by the principal, and Respondent refused to sign the evaluation to acknowledge that she had seen and received a copy of the document. As will be related infra, this refusal to sign or initial merely for acknowledgment of receipt of documents became a constant and continuing refusal on Respondent's part whenever the issue came up. Six days later she refused again; on January 17, 1984, Respondent responded in four written pages defending her methods. As events unfolded chronologically thereafter what started basically as a personality clash of the principal's "irresistible force" authoritarianism and the teacher's "immovable object" obstructionism mushroomed to affect students, parents, teachers, and administrators. In early January, Respondent complained concerning the inclusion of math in the gifted program to a higher outside administrator Dr. Agerwald. Mr. Rinaldi objected to this contact. On January 11, 1984, Mrs. Vickers, Petitioner's Director of Exceptional Students Program, arrived to observe Respondent's classes. She prepared a "School Visitation Report." The report is basically positive but does comment that the gifted classes are too big and current IEPs (records) were not and should have been available in the classroom. On February 2, 1984, Vickers issued a commendation to Hay Harbor on quality of cumulative records for exceptional children. Mr. Rinaldi passed this commendation (R-19) on to Respondent with the note, "Mrs. Burton, please continue this fine record 2/6/84." On 1/23/84, he also commended her on quick responses to the Miami Module records-keeping requests (R-20). Petitioner's advisor to gifted teachers, Richard Huffman, was assigned to assist Respondent at the beginning of the 1983-1984 school year. He testified that in his opinion she was a fit teacher, but he was removed as her advisor at the end of January or early February. February 24, 1984, Assistant Principal Vince Vignola observed Respondent in the classroom for a full hour and rated her overall acceptable except that she needed more grades in math and had, lost a student "contract" which had never been signed. Principal Rinaldi called in Gary Rito, Petitioner's Director of Academic Excellence for help resolving the gifted class problems. On March 2, 1984, Mr. Rito met with Respondent, Principal Rinaldi, and Mrs. Laurence, mother of a gifted student. Respondent and Laurence, who teaches elsewhere in Dade County, exchanged sharp words. It was agreed to meet again on March 8, 1984. At that time, James Miley, Petitioner's Supervisor of Gifted Programs, was present. Respondent was given written notice of the meeting one day in advance. Respondent elected to continue in this meeting at the conclusion of the school day. At this time most of her concerns, as expressed to all others present, were with the number of subjects she was required to cover and with the content of the mathematics curriculum in particular. Mr. Rito explained that "gifted" symbolizes a "technique" not a "subject," that Respondent was to use this technique for teaching subjects of math, science (which Respondent should be teaching anyway), and social studies, and for teaching a health and safety unit which was taught for only one or two grade units. Respondent strenuously objected to the use of the TMP math program. Rinaldi and Miley concurred that it was reasonable to include math in the gifted program. Math was, in fact, successfully used in the other two home-based programs beginning in Bay Harbor's Division that year, but the programs utilized may not have been the TMP. Nonetheless, the following adjustments were agreed upon among all those present at the March 8, 1984 meeting: Principal Rinaldi agreed to relieve the academic excellence program of the TMP math program and increased their enrichment activities; Ms. Thomas, Say Harbor's 6th Grade math teacher, was assigned by Principal Rinaldi to help Respondent in math. It was later Ms. Thomas' assessment that Respondent did not understand the TMP concept; and Respondent was directed and agreed to develop four units of study in botany (2 intermediate and 2 primary) to cover the rest of the school year (9 weeks). These plans were to cover instructional objectives, classroom activities, student evaluation methods and homework assignments on a time line. A preliminary plan was to be shown by Respondent to Mr. Miley on March 20. This assignment was primarily the result of a request by Ms. Laurence and other parents requesting to see a sets of plans for purposes of deciding whether to leave their children in the Respondent's class or return those who had already been withdrawn. Rinaldi, Rito, and Miley felt the plans required by the directive would ease the primary problems of implementing the program and of parent-teacher communications and misunderstandings which had been growing, and also felt they were reasonable and necessary. Everyone was aware that withdrawal of Mrs. Laurence's child could reduce program enrollment below the 25 student minimum required. However, no one clearly expressed the belief that this directive was a prescription to improve Respondent's teaching performance, which had been found basically sound up to this point. 1/ The direction itself was for a reasonable and necessary purpose (preserving and improving the gifted program). However, despite Mr. Miley's opinion that the plans as initially directed were reasonable and necessary and despite Respondent's failure to object to the direction at this point, the initial scope of the direction was actually unreasonable under the circumstances. Mr. Miley postponed his scheduled meeting with Respondent from March 20 to March 23, 1984. On that date, Respondent had nothing to show him with regard to the required botany units she had been asked to prepare. Mr. Miley met with Respondent anyway and reduced the required units from 4 to 2 and extended the time for preparation until April 12, 1984. He also gave her a document entitled "Standards of Excellence" for use in the units she was to prepare and agreed to let Respondent continue with her present evaluation system. This adjustment, made in consultation with Respondent also rendered the scope of the direction to prepare the units reasonable. 2/ On April 12, 1984, Mr. Miley asked for the required botany units and received nothing from Respondent. He returned to the school on April 13, and Respondent produced a series of goals and objectives essentially copied from the "Standards of Excellence" wherein she had identified part of a program for the primary students but none for the intermediate students. There were no classroom activities listed, no homework mentioned, and no time lines provided. Despite the extension of time, Respondent did not fulfill the required directive even in its reduced and consequently reasonable form. 3/ The units were not further amplified by Respondent before she left on April 20 and Mrs. Laurence's child was permanently removed from the gifted program. (See allegations of Paragraphs 5 and 7 of the Notice of Charges). On March 12, 1984, Respondent called Principal Rinaldi a liar three times in the presence of two other school employees. 4/ (See allegations of Paragraph 4 of the Notice of Charges.) Respondent later informed Principal Rinaldi that she perceived the March 8 meeting as disciplinary in nature. He had not considered it so. He accordingly removed a request for her signature from a summary he had prepared of the March 8 meeting and scheduled a "conference-for-the-record" for March 16, 1984. Conferences-for-the record are disciplinary conferences. The March 16, 1984 meeting was postponed at the request of the Respondent's union representative. A second request for postponement for emergency reasons peculiar to the schedule of that particular union representative (Ms. Perez), was not granted and the conference-for-the-record went forward on March 20, 1984, with Respondent accompanied by her union steward, James Collings. At this conference, Rinaldi discussed the same matters that had been discussed at the March 8, 1984 meeting, the incident which had occurred March 12 when Respondent called him a "liar" three times, Respondent's unsatisfactory attendance record that year, and the fact that her absences were having an adverse effect on the program. Respondent was specifically instructed by her union advisers not to speak at this conference. Certainly she did not deny the March 12 "liar" incident. When she did not respond to Principal Rinaldi's accusations and inquiries, he became agitated. Respondent had received prior approval for a half-day in-service conference (8:30 a.m. to noon on March 21, 1984) with Mrs. Vickers, Director of Petitioner's Exceptional Student Education Program. When she did not report back to teach at Bay Harbor that afternoon, Mrs. Macri, secretary to Principal Rinaldi made inquiries and Respondent's continued presence with Mrs. Vickers was confirmed, but not approved. This constitutes a 1/2 day's absence without leave. No substitute was procured since Respondent had been expected to teach her afternoon class. (See allegations of Paragraph 12 of the Notice of Charges.) On March 28, 1984, during a regularly scheduled parent meeting, the parents present expressed a great deal of dissatisfaction with various aspects of the gifted program, particularly math. Principal Rinaldi publicly attributed the problems in the gifted program to Respondent and Respondent retaliated by publicly stating that she did not believe TMP math should ever have been included in the gifted program and that she had no control over the inclusion of the math. The majority of witnesses actually present at this meeting found its entire tone and nature informative prior to Principal Rinaldi's comment. Even then, Respondent's comments may have been less than tactful but were hardly untruthful, unprofessional, irresponsible, or incendiary. (See allegations of Paragraph 6 of the Notice of Charges.) Respondent was tardy to the March 29, 1984 faculty meeting. Based on the contemporaneous memoranda and letter, Respondent's estimate of 3-4 minutes tardiness is accepted over Dr. Rinaldi's later estimate of 20 minutes. The causes related contemporaneously by Respondent are entirely reasonable. (See allegations of Paragraph 11 of the Notice of Charges.) At Principal Rinaldi's April 16, 1984 classroom observation of Respondent, he rated her teaching performance as unacceptable in 3 categories: preparation and planning, assessment techniques, and professional responsibility (P-18). Rinaldi testified that his negative ratings in preparation and planning were due to what were minor concerns on the January evaluation. However, as observed above in Fact Paragraph 6, the January evaluation actually concentrated on the principal's particularly harsh requirement that Respondent's student files must be arranged alphabetically with papers neatly arranged chronologically within each file. Since his perception of the adequacy of records is so intensely personal to Mr. Rinaldi and in light of interim commendations to Respondent for record-keeping, his April analysis of inadequate records of assessment renders the final evaluation "score" highly suspect. 5/ (See allegations of Paragraph 8 of the Notice of Charges.) Respondent was tardy to work and failed to timely sign in on March 26, 27, 28, and April 20, 1984. (See allegations of Paragraph 13 of the Notice of Charges.) Respondent was absent on April 17, 18, and 19. She requested leave for April 17-18 late but it was approved and authorized in advance by Principal Rinaldi for participation in religious holidays. However, these were absences without pay and pushed Respondent over the number of personal leave days to which she was annually entitled. Respondent was absent without authorization on April 19; this was an absence without pay. (See allegations of Paragraphs 14 and 19 of the Notice of Charges.) On April 20, 1984, Respondent protested, but finally agreed to meet with Principal Rinaldi in his office for a post-observation conference. Post- observation conferences are not normally considered disciplinary in nature. By this time, he had added Respondent's late notification of the 4/17-4/18 absence and her 4/19 absence to the prescription sheet as deficiencies. Respondent declined an oral dialogue with Rinaldi wherein she was invited to respond to the rating criticisms and prescriptions and offer alternatives and also refused to initial his notation that she insisted on responding in writing. Midway in this meeting, Respondent announced she was going to leave. Again, she would not sign to acknowledge receipt of the observation and prescriptions. Rinaldi instructed her that she was obligated to discuss the rating and if she left, he would consider it insubordination. Respondent left his office and the school and did not return to work as a teacher at Bay Harbor again. A formal reprimand issued partly as a result of this incident. (See allegations of Paragraph 9 of the Notice of Charges.) On April 23 and April 24 Respondent was absent without pay. April 23 was unauthorized leave. (See allegations of Paragraphs 14 and and 19 of the Notice of Charges.) With regard to the frequent' short absences, which total led 18 as of April 22, Respondent rarely if ever complied with the "Teachers' Handbook" guidelines for advance notification. Respondent originally felt that it did not matter what type of leave (personal or sick) was listed because she had no leave left anyway. Although many of these absences were for legitimate illnesses or injury of herself or a relative, there was either an on-going absence of lesson plans or a failure on Respondent's part to inform the principal that she had created plans since he last commented on there being none. Consequently, he often could not or did not secure substitutes. This resulted in wasted class time and interfered with classroom continuity. Some of Respondent's unauthorized absences were simply gifted programs she chose to attend without notifying the principal in advance. Respondent was also absent during the 1983-1984 school year for two lengthy periods, which, with all other absences, totalled 62 1/2 days. Medical narratives, admitted without objection, corroborate Respondent's testimony that the two lengthy absences were the result respectively of unanticipated allergic complications of a CAT scan (from January 30 to February 10, 1984,) and of surgery to correct acute sinusitis and recovery time from late April until release. One doctor released her from this last treatment On May 29, 1984; the other released her on June 8, 1984. During the period of time she was absent immediately following the April 20 "walkout" incident until approximately June 8, Respondent failed to adequately inform Petitioner of her proposed date of return. Certified letters sent to her post-office box were returned because Respondent did not pick them up and Petitioner could not send these to her by regular mail or by hand- delivery via a "visiting teacher" because Respondent had never informed Petitioner of her street address. The failure of Respondent to stay in touch, her failure to indicate when she could return to work, and her failure to indicate that her absence would be lengthy resulted in an inability of Petitioner to immediately hire a permanent substitute teacher. Therefore, the gifted classes had to "make-do" with a series of short term substitutes (4 or 5) until Mr. Rinaldi finally hired Mrs. Judith Dryanoff. This process created a lack of continuity in the classroom and more student withdrawals from the gifted program. The problem with multiple substitutes was compounded by Respondent's failure on April 24 and thereafter to have available substitute lesson plans. 6/ Because of Respondent's failure to leave any form of lesson plans or grade book, substitute Judith Dryanoff had to make up her own lesson plans for science and enlist the help of Janice Thomas for math plans. (See allegations of Paragraph 10 of the Notice of Charges.) On May 24, Principal Rinaldi signed Respondent's Annual Evaluation, not recommending her for employment in the next school year (P-22). When released by her doctors, Respondent was assigned by Administration to the North Area Office for June 11-15 and was expected by her principal to be at Bay Harbor simultaneously. She obviously could not do both. She was at the North Area Office for part of June 12 and at Bay Harbor for part of June 14. She was in neither location on June 11, 13, and 15. These days constitute absences without leave. (See allegations of Paragraph 19 of the Notice of Charges.) On June 12, 1984, James Monroes, a supervisor in Petitioner's Division of Personnel Control, ordered Respondent to begin the 180 hour course, Beginning Teacher Program, to start at 10:00 a.m., June 14, 1984, at Bay Harbor Elementary School. 7/ At 7:20 a.m. that morning Respondent confronted Principal Rinaldi in his office and called him "malicious, devious, incompetent," and "a sorry excuse for a principal." She accused him of personally taking her personal items from her room and of attempting to get her fired. 8/ Although she initially refused to come back for the program, she returned at 10:00 a.m. and repeated essentially the same harangue in the presence of Mrs. Thomas, the peer teacher selected to oversee Respondent's Beginning Teacher Program. Mrs. Thomas was called in by Mr. Rinaldi who had anticipated that a scene would ensue. Thereafter, out of Mr. Rinaldi's presence, Respondent invited Mrs. Thomas to sign a petition "to get rid of Mr. Rinaldi". (See allegations of Paragraph 15 of the Notice of Charges.) Dr. Huffman testified that Respondent also frequently yelled at Mr. Rinaldi in Dr. Huffman's presence prior to Dr. Huffman's February reassignment, and Mrs. Macri, secretary to Principal Rinaldi testified that she had heard Respondent call Mr. Rinaldi a "bastard" or refer to him as a"bastard," but the date of this incident(s) was not proven. On August 29, 1984, Dr. Richard Artmeier, supervisor of Petitioner's Division of Personnel Control, directed Respondent to be psychiatrically evaluated the next day to determine if there were any mitigating circumstances for her June 14, 1984 behavior. Respondent is obligated to submit to such evaluation by terms of her employment. After vacillation, Respondent refused to sign the written directive indicating its receipt and adamantly refused to see a psychiatrist. Finally, Dr. Artmeier directed her instead to report to the North Area Office the next day. Respondent did, however, actually go the next day as originally directed for psychiatric evaluation to Dr. Gail Wainger. Dr. Wainger was on Petitioner's "approved" list. In so doing, Respondent could not immediately comply with the directive to report to the North Area Office. Respondent reported to the North Area Office later the same day after her psychiatric evaluation. Petitioner accepted Dr. Wainger's psychiatric evaluation of Respondent, paid for it, and it was admitted at hearing upon Petitioner's motion (P-38). Since Respondent could not be in two places at once, she fulfilled the alternative directives reasonably by fulfilling them sequentially even if she did initially refuse. (See allegations of Paragraphs 16 and 17 of the Notice of Charges). The psychiatrist's evaluation is admissible under Section 231.291, Florida Statutes and has been considered. Upon that evidence, together with all other credible evidence adduced at formal hearing, Respondent was accountable for her actions. Respondent has never qualified for and has never been characterized as a teacher under continuing contract.
Recommendation It is recommended that Petitioner enter a Final Order dismissing Respondent from employment with the Dade County School Board and denying any claims for back pay. DONE and ORDERED this 20th day of June, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1985.
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2013.
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.
Findings Of Fact The Respondent Philip Arthur James holds Florida Teacher's Certificate number 357596, rank 3, covering the areas of mental retardation and emotionally disturbed children. During the 1982-1983 school year, the Respondent James was employed as a public school teacher at the Paul B. Stephens Exceptional Center in the Pinellas County School District. During the 1982-1983 school year, the Respondent James was assigned to teach a class of approximately six profoundly mentally handicapped students. None of the students in the Respondent's class could talk, walk, read or write. Some were incontinent and wore diapers. Howie Flood, one of the profoundly mentally retarded students in the Respondent's class, was 17 years old. Because of Howie's severe condition, it was almost impossible to elicit any type of response from him. The Respondent, however, attempted to force Howie to respond by pulling or yanking his hair on a number of occasions. The Respondent did not pull Howie's hair to punish or hurt him, but rather to attempt to get some type of positive response from the student. This type of behavior management was never approved prior to administration, by Ms. Torres, the school's behavior specialist, as required by written school policy. Della McYenna, a profoundly mentally retarded student in the Respondent's class was 17 years of age. This student was extremely sensitive and did not like being touched. On one occasion, while the Respondent was attempting to change Della's diaper on a small changing table, he placed tape on her leg. When the tape was yanked off Della's leg, the student flinched. The Respondent placed the tape on Della's leg because the student was squirming about which made it difficult to control the situation. Although the Respondent could have placed the tape on the table, out of convenience he elected to place the tape on Della's leg knowing that this student was extremely touch sensitive. Andrea Miller, a profoundly mentally retarded student in Respondent's class, had a habit of poking a finger into the corner of her eye, causing the eye to bulge out of its socket. If left untreated, this situation could ultimately result in the loss of the eye. In attempting to stop this behavior, the Respondent slapped Andrea's arm. The Respondent employed this technique to cause Andrea to stop attempting to poke out her eye. Prior to administration, this behavior management technique was never approved by Ms. Torres, the school's behavior specialist, as required by written school policy. Pamela Baker, a 17 year old profoundly mentally retarded student in Respondent's class, was confined to a wheelchair. While changing Pamela's diaper, the Respondent lightly tapped Pamela in the area of her mouth. This tap, however, was not sufficient to cause any bleeding. Apparently, Pamela caused the injury by hitting herself in the face when struggling with the Respondent. Although the Respondent is charged with striking Pamela on the foot with a ruler for pulling toys off a shelf, insufficient evidence was produced to demonstrate that this event occurred. After the Respondent's conduct was reported to Principal Diem in October, 1982, he was suspended from his position of employment and later dismissed by the Pinellas County School Board. Dr. M. Juhan Mixon, Director of Personnel Services, Pinellas County School Board testified that in his opinion, Respondent's effectiveness as an employee of the school board was seriously reduced based on the school board's finding that he had committed the acts charged and should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered suspending the teaching certificate of the Respondent Philip Arthur James for one year and placing him on probation for the following two years, during which period the Respondent be required to successfully complete additional appropriate college class work in the area of mentally and emotionally behavior management of handicapped students as prescribed by the Education Practices Commission. DONE and ENTERED this 27th day of December, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1983.
