The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
Findings Of Fact Petitioner was employed by Respondent as a dormitory teacher I for approximately four years prior to his dismissal in May, 1987. The incident which resulted in his dismissal occurred on May 2, 1987, on the second floor of James Hall, a dormitory for deaf students, where he worked as a dormitory teacher. At approximately 11:15 p.m., Petitioner told Tommy Downing, a student at the school and resident of James Hall, to go to bed. Downing was in another student's room at the time and was wearing a fabric vest used as a target for a toy laser gun. The testimony conflicts as to exactly what happened, but from a review of all the evidence and after considering the witnesses' demeanor, it is found that Downing, who was thirteen years old at the time, threw the vest at Petitioner, hitting him in the eye. Petitioner sustained no injury. As a result of the surprise of being hit with the vest, Petitioner threw a clip board he was holding in his hand in Downing's direction. Downing and Petitioner were approximately twelve feet apart at the time. The clip board struck Downing just below his elbow causing severe pain and swelling for which he required attention in the school infirmary. Downing became extremely upset as a result of the incident and it took staff some time to calm him down. Petitioner's action was grossly negligent and reckless, and exhibited an extreme disregard for the safety of Downing, as well as another student who was also in close proximity to the incident. At the time of this incident, Petitioner was rated as "below" standards, with unsatisfactory communication skills and knowledge of his job. Good communication skills are very important when dealing with deaf students, and Petitioner's inabilities in this aspect of his job had been a repeated cause for his poor job performance and evaluations. Petitioner's personnel file reveals that he was placed on ten days administrative leave in December 1986, and was reprimanded in January, 1987 for failure to report to work. After investigating the incident involving Downing and Petitioner, Respondent dismissed Petitioner from employment on May 30, 1987 "for violation of Article 26 of the Florida School for the Deaf and Blind Standards of Conduct." Article 26 provides a definition of "student abuse" and employee disciplinary standards relating thereto, as follows: Treatment under which a student is deprived, or allowed to be deprived, of necessary treatment, habilitation, care, sustenance, clothing, shelter, supervision, or medical services essential to his well- being; is permitted to live in an environment in which such deprivation or environment causes, or is likely to cause, impairment of physical or emotional health; or is subject to physical or psychological injury. First occurrence 3-day suspension to Dismissal Second occurrence Dismissal (Emphasis supplied.) Respondent does not contest that Petitioner has timely sought a hearing to review the decision to terminate his employment. According to Respondent's Personnel Director, Sam Visconti, the severest employee disciplinary action of dismissal is taken when an employee's action causes harm to a student, and the consequences or harm are severe. In this case, Petitioner's action did cause harm, with severe pain and swelling to Downing, and showed an extreme disregard for the possible consequences of his action.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner as an employee. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. COPIES FURNISHED: Robert T. Dawson, President Florida School for the Deaf and the Blind 207 North San Marco Avenue St. Augustine, Florida 32084 Barbara Staros Harmon, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Samuel White 94 South Street St. Augustine, Florida 32082
The Issue The issues to be determined are whether Respondent, Mr. Alain Sanon, violated section 1012.795(1)(j), Florida Statutes (2013), and implementing administrative rules,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Sanon holds Florida Educator's Certificate 1010405, covering the area of mathematics, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Sanon was employed as an intensive math teacher at John F. Kennedy Middle School in the Miami-Dade County School District. Mr. Sanon was born in Haiti and lived there most of his life. He came to the United States in 2003. His native language is French. He also speaks Creole and is fluent in English. In August 2017, Mr. Sanon taught a seventh-grade intensive math class during fifth period. About 50 percent of this class was Haitian-American, and some students in the class spoke French and Creole. Student A.R. testified at hearing that, on August 27, 2013, Student N.R. was laughing and talking with some other students who did not quiet down after Mr. Sanon asked them to. Student A.R. testified that Mr. Sanon asked them if they were gay. At this question, many of the students in the class started laughing. Student A.R. testified that Mr. Sanon then said, "This is a no homo zone." Student A.R. testified that Mr. Sanon said these things in a playful, not hostile manner, as a joke. Student A.R. testified that Student N.R. looked embarrassed. Mr. Sanon, in his deposition and later at hearing, admitted that he used the word "gay," but denied that he used it to refer to anyone as a homosexual, even jokingly, but rather used it in the sense of "happy." He testified that it was all a misunderstanding stemming from his question in French to Student N.R. and his companions: "Why are you so happy today?" Mr. Sanon explained that the French word for happy is "gaie" and that, when other students in the class heard that word, they began to say that Mr. Sanon had made an allusion to the boys' sexual preferences. Mr. Sanon testified that students were becoming excited and things were beginning to get out of hand, so he then said, "You know what? This is no homo calling. Nobody is calling anybody names in this classroom." He denies ever saying, "This is a no homo zone." The testimony of Student A.R., as supplemented by the written statements of other students, is more credible than that of Mr. Sanon, and Student A.R.'s testimony is credited. Student N.R. was removed from Mr. Sanon's class. The other fifth-period students remained with Mr. Sanon for the rest of the school year. It can be reasonably inferred, from Student A.R.'s testimony and the fact that Student N.R. was subsequently removed from Mr. Sanon's class, that Student N.R. was embarrassed by the incident. This is corroborated by Student N.R.'s written hearsay statement. Mr. Sanon has been employed at the Miami-Dade County School District for about 12 years. He has never before had any discipline imposed against his license.
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 Mr. Alain Sanon in violation of section 1012.795(1)(j), Florida Statutes, through his violation of Florida Administrative Code Rules 6A-10.081(3)(a) and 6A- 10.081(3)(e), and issuing him a letter of reprimand. DONE AND ENTERED this 8th day of March, 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 8th day of March, 2017.
Findings Of Fact Respondent, Charles L. Smith, holds a temporary state teaching certificate number 514251 issued by the State Department of Education covering the area of physical education. He has been a teacher for fourteen years and holds a master's degree in special education. He is presently the head football coach and a physical education instructor at Stewart High School in Lumpkin, Georgia. This is not respondent's first involvement with a disciplinary proceeding. On June 8, 1983, petitioner, Ralph D. Turlington, as Commissioner of Education, filed an administrative complaint against Smith alleging that while he was employed as a teacher at Dunnellon High School (Marion County) in school year 1982-83, he made derogatory statements to students and engaged in improper conduct of a sexual nature with a minor female student. The matter eventually culminated in an administrative hearing held on August 11, 1983, where one of petitioner's witnesses was Ruth Annette Edwards, a teacher's aide in Smith's class. Her testimony in that proceeding has been received in evidence as petitioner's Exhibit 3. The testimony can be characterized as damaging, for Edwards gave testimony which tended to corroborate the allegations against Smith. Although the Hearing officer recommended that Smith be found guilty of all charges and that his certificate be revoked for two years, in its Final Order rendered on November 9, 1983, the Education Practices Commission (EPC) expressed "strong doubts that the incident (with the female student) actually occurred" and instead placed respondent on probation for one year and imposed the following conditions: The Respondent will break no laws, nor any rules of the State Board of Education. The Respondent will perform in a satisfactory manner as a teacher, and will cause reports of his performance to be forwarded to the Education Practices Commission. Therefore, under the terms of pro- bation, if respondent violates any state law or EPC rule during the ensuing year, he risks the loss of his teaching certificate. The probation period expires on November 9, 1984. Respondent's contract to teach at Dunnellon High School was not renewed in school year 1983-84. However, Smith's failure to teach there was not due to the EPC disciplinary action, but rather was attributable to his failure to pass the mathematics part of the teacher certification examination. Because of this, he weighed alternative offers from Alachua County School Board and the State of Georgia, and accepted the latter offer because of its higher pay. Sometime prior to 10:30 a.m. on Sunday morning, January 29, 1984, the Clara Davis household in Dunnellon, Florida, received a telephone call. Mrs. Davis answered the telephone and was asked by the caller to speak to her grandson, Pretis Griffin, then nineteen years old and a senior at Dunnellon High School who resided with her. Pretis was a former student in Smith's English class in 1982-83, and also knew him from varsity athletics. Mrs. Davis responded that Pretis was still asleep and hung up. The same caller telephoned back a few minutes later and said he was calling long distance from Gainesville and needed to talk to Pretis. She roused Pretis, who answered the call. Pretis testified the caller identified himself as respondent and sounded like Smith. Although Smith denied he made the call, it is found that Smith did indeed telephone Pretis on January 29. After the two made small-talk initially, Smith then asked Pretis if he would do him a favor. Pretis said "yes," and Smith said "I want you to tell Mrs. Edwards something." Pretis asked "What," and Smith replied, "Tell Mrs. Edwards thanks for what she's done, and I will get back at her through her husband." After some more small-talk, the two ended the conversation by Smith saying, "Don't forget to tell her," followed by a "little laugh." After the call ended, Pretis told his grandmother the caller was Coach Charles Smith. The next day, Monday, January 30, Pretis approached Ruth Edwards at school and told her respondent had telephoned him and wanted to convey a message. Pretis then told her "Coach Smith said thanks for what you done and he'll get you back through your husband." Upon hearing this, Edwards simply shrugged and walked away. The following Sunday, February 5, 1984, the Davis household received another telephone call for Pretis prior to 10:30 a.m. According to Pretis, it was the same caller as the previous Sunday, and despite Smith's denial, it is found that respondent made a second call to Pretis on February 5, 1984. After making small-talk, Smith eventually asked if his message had been delivered and what Edwards' response had been. When Pretis responded that he had, and that Edwards had merely shrugged and walked away, Smith commented "Oh, she thought it was a joke," and Pretis said "I guess." The two then discussed an upcoming basketball game at Dunnellon the following Saturday night and the fact that Smith might attend the game. In the next day or so, Pretis told Edwards at school that Coach Smith had telephoned again and that he might attend the high school basketball game that weekend. Edwards gave no visible response to Pretis' comment. Edwards, who readily acknowledged she dislikes Smith, initially claimed that Pretis relayed three separate messages to her from Smith, and also gave a more threatening account of the conversations between Pretis and Smith. However, it is found that only two calls took place, and the substance of the calls was accurately portrayed by Pretis. After Pretis told Edwards that Smith had telephoned a second time, she went to the assistant principal and advised him that Smith had threatened her. Later, Edwards and Pretis were interviewed, and the matter was then turned over to the Marion County School Board, and eventually referred to petitioner. That prompted the issuance of the administrative complaint herein. Smith, who has never met Edwards' husband, denied making the calls. He seemed fully aware of the terms of his probation, and recognized that any violation might jeopardize his teaching certificate. He contended it would be "stupid" to threaten Edwards because it would lead to the exact predicament he finds himself in. On the two mornings in question, he claimed he was either at work (as a clerk at a 7-11 store in Gainesville) or in church. However, his wife was unable to confirm this because of the passage of time since January and February, 1984. Until the hearing, Smith has not seen nor spoken to Edwards (or her husband) since the administrative hearing conducted in August, 1983 and has never carried out any threats against her.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 6B-1.06(3)(m) and that he be placed on probation for a period of one (1) year. DONE AND ENTERED this 8th day of November, 1984, at Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of November, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Arthur G. Haller, Esquire 771 N.W. 23rd Avenue, Suite 1 Gainesville, Florida 32301 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent violated the Florida Statutes and Florida Administrative Code rules, as charged in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator's Certificate No. 803275, valid through June 30, 2021, covering the areas of elementary education, exceptional student education, middle grades integrated curriculum, and social science. At the time of the final hearing in this proceeding, Respondent had taught for approximately 17 years. The Complaint The Complaint alleges that Respondent spoke ill of student E.J.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, E.J. was embarrassed. Additionally, the Complaint alleges that Respondent spoke ill of student A.S.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, A.S. was embarrassed. The Complaint also alleges that Respondent criticized student J.P.'s work on an assignment, including, but not limited to, saying he had not put any work into it. As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(j), and rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5. Evidence Adduced at the Final Hearing Respondent began teaching in the St. Lucie County School District ("District") on August 1, 2016. At the time of Respondent's conduct that is alleged to violate section 1012.795 and rule 6A-10.081, Respondent was employed as an eighth grade social studies teacher at West Gate K-8 School ("West Gate"), in the District. The 2018-2019 school year for the District began on August 13, 2018. September 14, 2018, was Respondent's last day of employment with the District. The alleged conduct giving rise to this proceeding occurred at some point between August 13, 2018, and September 14, 2018. On or about September 14, 2018, the District initiated an investigation into Respondent's conduct while she had been employed at West Gate. E.J. was a student in Respondent's eighth grade history class. Respondent assigned the students to complete a history project. After E.J. turned in his project, Respondent called him up to her desk and told him, in the front of the class, that his work on the project was "lazy" and "pathetic." Other students in the class saw Respondent's conduct and heard her comments to E.J. E.J. testified, credibly and persuasively, that he was embarrassed and hurt by Respondent's comments, and that he went back to his desk in tears. The credible evidence establishes that after seeing E.J.'s reaction to her comments, Respondent called E.J. outside of the classroom and apologized. Respondent testified, credibly, that she felt "terrible" about making E.J. cry, and that she had made the comments because she was frustrated with the quality of the students' work on the project. E.J.'s father, Jermaine Jones, who had picked him up from school on the day of the incident, confirmed that E.J. was upset by Respondent's comments on his project. Jones immediately set up a meeting with Assistant Principal Guzman and Respondent for the following day. At that meeting, Respondent apologized to E.J.'s parents and said she was having a stressful day when she made the comments to E.J. According to Jones, the incident made E.J.—who normally is quiet— further withdrawn, and he became, in Jones's words, "a little depressed." According to Jones, following the incident, E.J. did not want to go to Respondent's class. Other student witnesses testified at the final hearing, credibly and consistently, that they saw and heard Respondent's comments directed at E.J., and that E.J. was upset by her comments and started to cry. Another student, J.P., testified that he had been unable to complete the project for Respondent's class because his grandfather was ill and had been hospitalized, and that he and his family had been spending time at the hospital. J.P. took a note from his mother, to Respondent, on the day the project was due, explaining the reason why J.P. had been unable to complete his project. J.P. testified, credibly, that Respondent told him, in front of the class, that she really did not care about the note, and if he did not turn in the completed project by the following day, he would receive a grade of "zero." J.P. credibly testified that other students in the class heard Respondent's comments to him, and that he was "very shocked" and felt "very embarrassed." J.P. did not turn in a project. Student A.S. testified, credibly, that Respondent told him that his work on the project was unacceptable and "pathetic." Respondent made these comments in front of the entire class. A.S. testified, credibly, that he felt "very embarrassed and upset." He testified, credibly, that Respondent did not apologize to him. Respondent testified on her own behalf. She acknowledged calling E.J.'s work "lazy" and "pathetic," but testified that she had not intended to hurt his feelings, and when she realized that she had, she "felt terrible about it." She acknowledged that she has "a deep voice, and I come off harsher than I mean to." She called E.J. outside to explain that she had not intended to hurt his feelings, and there would be other opportunities to make up the bad grade he received on the project. She testified that as a result of their talk, E.J. calmed down, and that she did not have any further issues with him in class. She confirmed that on the day following the incident with E.J., she met with E.J.'s parents to discuss the incident. She testified that the meeting was "civil," and that she left the meeting feeling like "it was taken care of." Regarding the incident with J.P., Respondent testified that the students had two weeks in which to complete the project, and that when J.P. approached her with the note regarding his grandfather's illness, she told him to turn in, the following day, what he had completed to that point. She confirmed that J.P. did not turn in a project. She also testified that she did not hear from J.P.'s mother regarding the project. Regarding student A.S., Respondent testified that she did not call his work "pathetic," and that, given E.J.'s reaction, she would not have used that word again.4 Respondent also presented the testimony of K.K., who also had been a 4 Respondent acknowledged that the alleged incidents with E.J., J.P., and A.S. involved the same project, and that E.J. and A.S. had turned the project in on the same day. Thus, the undersigned questions whether Respondent would have had sufficient time to reflect on the effect that the word "pathetic" had on E.J., such that she would not have used that word in speaking with A.S. on the same day. student in Respondent's eighth grade history class in the 2018-2019 school year. K.K. testified that Respondent discussed E.J.'s paper with the class because it was a good paper, and that she did not see anyone cry in Respondent's class. She also testified that Respondent did not speak in negative terms about anyone's project in front of the class. However, K.K.'s testimony and written statement are directly contradicted by the testimony of four other students, as well as by E.J.'s father and Respondent herself, who admitted having called E.J.'s work on the project "lazy" and "pathetic" in front of the class. Accordingly, K.K.'s testimony and statement are not deemed credible. Respondent has been a teacher for 17 years. She testified that her educator's certificate has never been subjected to discipline, and no evidence was presented showing that disciplinary action has ever been taken against her educator's certificate. Findings of Ultimate Fact Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint. Whether particular conduct constitutes a violation of the applicable statutes and rules is a factual question to be decided in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Whether specific conduct constitutes a deviation from the required standard is an ultimate finding of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Rule 6A-10.081(2)(a)1., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to make reasonable effort to protect a student from conditions harmful to learning and to the student's mental health. It is determined that by disparaging E.J.'s work in front of the entire class—which caused him to suffer distress, withdraw, and avoid going to Respondent's class—Respondent violated this rule. Rule 6A-10.081(2)(a)5., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to avoid intentionally exposing a student to unnecessary embarrassment or disparagement. As found above, Respondent intentionally engaged in conduct that resulted in unnecessary embarrassment to students E.J., J.P., and A.S. Accordingly, it is determined that Respondent violated this rule. By violating the Principles of Professional Conduct for the Education Profession in Florida, Respondent violated section 1012.795(1)(j).
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Way, Suite 200 Wellington, Florida 33414-8594 1 All references to chapter 120 are to the 2020 version.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order placing Respondent's educator's certificate on probation for a period of one year from the date of the Final Order. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Diane Tirado 3502 Southwest Vollmer Street Port St. Lucie, Florida 34953 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background of this Proceeding This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb." As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force. Alleged Incidents Giving Rise to Charges S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/ S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb." Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit. Respondent's Defenses Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb. Findings of Ultimate Fact Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb." Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2012.
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issue in this case is whether a district school board is entitled to suspend a teacher without pay for just cause based principally upon the allegation that he slapped a student.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Larry J. Williams ("Williams") had been employed as a teacher in the Miami-Dade County Public School System for approximately 16 years. At all times relevant to this case, Williams was assigned to Parkway Middle School, where he taught students with disabilities. The events giving rise to this case occurred on January 30, 2004. About 20 minutes into one of Williams' sixth grade classes that day, the assistant principal brought a student named J. L. into the room. (J. L. had been roaming the hallways without authorization.) Upon his late arrival, J. L. took a seat, put his head down, and promptly fell asleep. Williams walked over to J. L.'s desk and shook it, asking J. L. if he were all right. Evidently startled, J. L. jumped up and shouted at Williams: "What the fuck are you doing? You ain't my daddy, you black ass nigger," or words to that effect.1 Williams, who is a black man, was taken aback. "What did you say?" he replied. "What the fuck are you bothering me for, you black ass nigger?" answered the student, who was now standing close to Williams. At that point, Williams quickly pushed J. L. away. Williams made physical contact with J. L. and probably touched his face or head. This contact was, it is found, more of a shove than a blow.2 J. L. then left the classroom and went to the office, to report that Williams had hit him.3 After J. L. had left, a student remarked, "Oh Mr. Williams, you [sic] in trouble now." Not wanting to lose control of his classroom, Williams tried to downplay the incident, telling the student that nothing had happened. The undersigned rejects as unfounded the School Board's allegation that Williams told his class to lie about the matter. Before the period was over, the school administration, acting on the word of J. L, a student who less than an hour earlier had been wondering about the halls and hence needed to be hauled into class by an assistant principal, pulled Williams out of his room and sent him home.4 Williams was not allowed to return to work until September 23, 2004. He therefore missed about seven months of school, namely the remainder of the 2003- 04 school year plus the beginning of the 2004-05 school year. For using vulgar language and brazenly insulting Williams with a hateful racial epithet, J. L. was suspended for five days. At its regular meeting on June 16, 2004, the School Board voted to accept the recommendation of Williams' principal that the teacher be suspended without pay for 30 workdays. (This means docking six weeks' worth of Williams' wages, or 12 percent of his annual salary.) Ultimate Factual Determinations Williams did not fail to make a reasonable protective effort to guard J. L. against a harmful condition, in violation of Florida Administrative Code Rule 6B-1.006(3)(a). Williams did not violate School Board Rule 6Gx13-4A- 1.21, which prohibits unseemly conduct and abusive or profane language. Williams' conduct on January 30, 2004, did not entail threats, threatening behavior, or acts of violence. Therefore, he did not violate School Board Rule 6Gx13-4-1.08, which proscribes violence in the workplace. Williams committed a technical violation of School Board Rule 6Gx13-5D-1.07, pursuant to which the administration of corporal punishment is strictly prohibited. This violation was not so serious, however, as to impair Williams' effectiveness in the school system. Accordingly, it is determined that Williams is not guilty of misconduct in office, an offense defined in Florida Administrative Code Rule 6B-4.009(3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order rescinding its previous decision to suspend Williams without pay; awarding Williams back salary, plus benefits, that accrued during the suspension period of 30 workdays, together with interest thereon at the statutory rate; and directing that a written reprimand for violating the corporal punishment rule be placed in Williams' personnel file. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2004.
Findings Of Fact Respondent holds Florida teaching certificate 066623, covering the areas of Elementary Education, Junior College, Reading, Early Childhood Education and Administration and Supervision. She has earned a bachelor's and master's degree, and a doctorate. Until her suspension in August, 1982, she served as Principal of West Riviera Elementary School ("West Riviera") in the Palm Beach County School District. On January 24, 1983, a final order was entered by the Palm Beach County School Board dismissing her from her employment and cancelling her continuing contract with the district. During Respondent's tenure as Principal at West Riviera, (1973-1982) it was her policy to maintain and rigorously enforce strict discipline, or as she put it, "law and order." Her approach to maintaining "law and order" is illustrated by the following events. When Marie Rusch joined West Riviera as a substitute Kindergarten teacher in October of 1979, Respondent explained that she wanted Ms. Rusch to maintain law and order in the school: "I don't care if these children learn nothing, I want law and order." Ms. Rusch was surprised by Respondent's attitude, particularly with regard to kindergarten children. This was Ms. Rusch's first opportunity to teach in a public school. During a conference in 1973 with Nancy Pullam, (another kindergarten teacher) regarding student behavior, Respondent gave Ms. Pullam two or more rulers taped together with masking tape and told "her beat them and they will learn." Respondent passed out 18" rulers to each member of the teaching staff at West Riviera and told them that she expected them to use the rulers in administering corporal punishment. Until on or about May 7, 1980, Respondent permitted teachers to administer corporal punishment in their classrooms, contrary to Palm Beach County School Board Policy 5.18(9). She permitted teachers to administer corporal punishment for any type of misbehavior until she changed that policy on or about March 12, 1982. At that time, she advised her faculty that corporal punishment was to be administered only for fighting and foul language. Prior to March 12, 1982, Respondent failed to set any guidelines for the faculty at West Riviera concerning offenses or infractions for which corporal punishment was authorized. In her view, the only "offense" which did not warrant corporal punishment was the failure of a student to do his assigned classwork. The only alternatives to corporal punishment utilized at West Riviera were suspension from school or deprivation of a fun activity (including depriving a student of physical education or use of the library). If a child would not accept paddling, it was Respondent's policy that the student be automatically suspended for a period of five days. Respondent constantly emphasized her philosophy of strict law and order through her use of the expression "Your behind is mine," meaning that if a child misbehaved he or she would receive a paddling. Respondent repeatedly used this expression in addressing children, faculty and staff, both personally and over the school's public address system. Respondent's manner of administering West Riviera created a fearful and military-like atmosphere. She often told teachers that she wanted it so quiet in faculty meetings, and in classrooms, that she could "hear a rat piss on cotton." When Marjorie Russo was hired to teach third grade, Respondent told her that corporal punishment used at West Riviera. Respondent told the faculty at the beginning of each school year that they each had a paddle, and she expected them to keep law and order. It they didn't, they would be "blackballed" in the county. Respondent told substitute teachers that her primary concern was that they maintain law and order, that she didn't care whether the substitute taught the children anything. Dr. Howard Levarity, Assistant Principal at West Riviera, became concerned about the extent to which corporal punishment was utilized under Respondent's administration. He was so concerned that he tried to transfer to another school. He observed occasions when children were corporally punished without good reason. At West Riviera, teachers were given great latitude in administering corporal punishment so that "law and order" - as defined by respondent - could be maintained. As a result of Respondent's policies regarding the use of corporal punishment, there were 3,246 separate instances in which students were administered corporal punishment during the 1979-1980 school year. A total of 451 students (78% of the school's students, ranging in number from 576 to 607) received corporal punishment during that school year. During the 1980-1981 school year, there were 1,176 instances in which corporal punishment was administered to students. Out of a school population of 550 students, 290 (52.8%) received corporal punishment during that year. During the 1981-1982 school year, there were 560 separate instances of corporal punishment. Out of a school population of 537, 214 students (40.9%) received corporal punishment during that year. Although most of these punishments were not administered in Respondent's presence, their frequency was a direct result of her policy to encourage - even insist - that corporal punishment be applied to maintain law and order. During the 1979-1980 school year, fourth grade student Greg Aronson was corporally punished 59 times. Greg's mother was never notified by the school that he received corporal punishment on 70 different occasions. Second grade student Sterling DeShields received corporal punishment on 45 occasions. Fourth grade student Robert Duguette received corporal punishment on 61 occasions. Fourth grade student Steve Geck received corporal punishment on 43 occasions. Sixth grade student Thomas Gradison received corporal punishment on 48 occasions, four of which occurred within a one hour period of time on October 25, 1979. In each instance, Thomas received the maximum of 5 strokes, for a total of 20 strokes within one hour. Fourth grade student Keith Griffin received corporal punishment on 52 occasions. Lucius Jackson, a fifth grade student, received corporal punishment on 44 occasions, three of which occurred during the morning of December 6, 1979. In each of his 44 paddling, Lucius received the maximum of 5 strokes. Fourth grade student Mark Nunnally received corporal punishment on 41 occasions. David Pender, a fourth grade student, received corporal punishment 58 occasions. Second grade student Cameron Walker received corporal punishment on 38 occasions, with Respondent administering 17 of the paddling. Fourth grade student Elinor Williams received 34 paddling. Kindergarten student Leonard Williams received 31 paddling, three of which occurred within one and one-half hours on the morning of September 18, 1979. (Petitioner's Exhibit 2) During the 1980-1981 school year, Greg Aronson received another 8 paddling, but again his parents were never notified. Lucius Jackson was corporally punished on 55 occasions. Lucius received 4 paddling on February 11, 1981, totaling 20 strokes. Fourth grade student Rufus Mitchell was administered corporal punishment on 25 occasions, two of which were eight minutes apart on October 15, 1980. Rufus received the maximum of 5 strokes during each of these paddling. Fourth grade student Lendrick McGrady was paddled 30 times. Sixth grade student Mark Oats received corporal punishment on 30 occasions. Sixth grade student Kenneth Studstill received corporal punishment on 28 occasions. Sixth grade student Hurie Whitfield received corporal punishment on 26 occasions. (Petitioner's Exhibit 2) Although Respondent admitted that corporal punishment was ineffective for Lucius Jackson, he was paddled 44 times during the 1979-1980 school year, 55 times during the 1980-1981 school year. Respondent witnessed each of the 4 paddling which Lucius received on May 8, 1981, near the end of that school year. Although student William Dinkins was administered corporal punishment in 1979-1980, 1980-1981, 1981-1982 school years, his mother was never notified of the punishment, contrary to Administrative Directive D-5.35(9) of the Palm Beach County School Board. Respondent used excessive and unreasonable force on numerous occasions when she personally administered corporal punishment to elementary school students at West Riviera. Many times, she interrupted paddling which were being administered by teacher. She would take the paddle from the teacher and administer the punishment herself, because the teacher, in her view, was not striking the child hard enough. On one occasion, Respondent interrupted teacher Vickie Culton and took over the paddling because Ms. Culton was not hitting the child hard enough. When the child pulled away, Respondent followed him around the room, striking him repeatedly. The child received more than the maximum 5 strokes allowable under school board policy. In paddling another kindergarten child named Theron, Respondent pushed his head against a wall, causing him to scream and cry to such an extent that teachers stuck their heads into the hall to see what was happening. On another occasion, Respondent took Theron into a bathroom and paddled him while his classmates and teacher listened in the adjacent classroom. Respondent had just paddled Theron in her office and brought him back to the classroom. Since he continued to scream and cry, she administered the second paddling in the bathroom. Respondent interrupted Ms. Culton's paddling several times because Respondent felt she was not hitting the child hard enough. Teacher Joyce Wojtowicz had the same experience. On one occasion, she was paddling a third grade student named Carol, while Respondent observed a as a witness. Respondent interrupted the paddling and proceeded to give the girl a severe paddling, administering five strokes. In the meantime, another third grade student, Tammy was standing nearby watching. When Respondent finished paddling Carol, Tammy was shaking violently; terrified, she began to vomit. Ms. Wojtowicz was also shaken by the severity of the paddling. Respondent gave some tissue to Tammy, ordered her to clean up the vomit, and told her that she was not going to avoid paddling by throwing up. After cleaning up the vomit, Respondent paddled Tammy, giving her the maximum 5 strokes. On another occasion, Ms. Wojtowicz overheard Respondent administering corporal punishment to a child in the school clinic. As Respondent hit the child with the paddle, Ms. Wojtowicz heard Respondent say, "Are you going to piss on my carpet?" As the child was given another stroke, Respondent said, "Are you going to pee on my floor?" As Ms. Wojtowicz walked out of the bathroom, she saw that Respondent was paddling a small kindergarten child. With each stroke, the child's feet went out from under him. Another teacher, Leslie Smith, witnessed Respondent paddle a five year old kindergarten boy. Respondent hit the boy very hard on the first stroke causing him to fall on the floor, then struck him two or three times while he was on the floor. Another teacher, Marcie Ann Wolfe, sent a student with an emotional problem to the office for the purpose of having Respondent talk to him. Instead, the student returned with a disciplinary slip indicating that Respondent had paddled him. At that point, Ms. Wolfe resolved that she would no longer send students to the office for discipline. Teacher Lynne McDowell witnessed Respondent administer corporal punishment to third grade student Craig Griffin. Craig had never been paddled at school before, and he resisted Ms. McDowell's attempt to paddle him in the office. Respondent intervened, took the paddle from Ms. McDowell, and administered the paddling to Craig, striking him wherever the blows fell -- on his legs and hands. Ms. McDowell observed Respondent administer a severe paddling to another student, Shawn, with the strokes landing so hard that it "rang my ears." If a child moved or fidgeted while Respondent was paddling them, she would start over. Third grade teacher Marjorie Russo observed Respondent paddle a kindergarten or first grade boy so hard that he came up off the floor. The little boy managed to get away from Respondent and tried to go under her desk. Respondent kept hitting him while he was on the floor. In Ms. Russo's view, Respondent hit the child "ridiculously hard" for a boy that size. Kindergarten teacher Mary Rudin witnessed Respondent administer corporal punishment to kindergarten student James J. Martin in her class and in the presence of other students. Ms. Rudin had asked James to make some circles on a piece of paper, but he refused. So, Ms. Rudin asked Respondent to come to her class in an effort to get James to cooperate. Respondent then asked James to perform the task; again he refused. At that point, Respondent administered five strokes to James. She sat him down and again requested that he perform the task. Once again he refused, and once again, she stood him up and gave him five more strokes. She then made a third request for him to perform the task; he responded, "I'll do it if you get away from me." This angered Respondent. She picked him up again and paddled him a third time. After the third paddling, James performed the task. He never returned to his class after that day because he was withdrawn from school by his parents. His father, James Martin, a teacher at Suncoast High School removed James because of the severity of the paddling. Photographs taken two days after the paddling show pronounced red marks from the to of his buttocks half way down his legs to hi knees. When Mr. Martin and his wife first observed the marks, they called their doctor, who agreed to see them that evening. The doctor was shocked by what he saw, and advised that he would have to report the case as an incident of child abuse. He recommended that Mr. Martin consult an attorney. Mr. Martin spoke to Respondent the following day. She apologized, explaining that she "lost her cool." Mr. Martin went to James' classroom to get his belongings; however, James would not go inside. He remained outside in the hallway, visibly shaken. In addition to Mr. Martin, Barbara Wright and Betty Deurloo complained to the school about their children being subjected to excessive punishment. Like Mr. Martin, Ms. Wright and Ms. Deurloo removed their children from West Riviera. In Respondent's view, if a student constantly wet his pants, it was an offense warranting corporal punishment. Although Respondent testified that the only "offense" that did not justify corporal punishment was when a child refused to do his or her lesson, the testimony of Ms. Rudin and Mr. Martin indicates that Respondent did not follow her own guideline. On numerous occasions, Respondent used profanity and made inappropriate, improper, and unprofessional remarks to students at West Riviera. After paddling a student named Lawrence in her office on April 14, 1982, Respondent told Lawrence to sit down. She pointed to a heater cord and threatened to tie him up with the heater cord if he didn't sit still. Respondent told Leslie Smith's kindergarten class that if they didn't shut up she would "kick their butts through the ceiling and kill them all." Respondent referred to a female student in Ms. Wojtowicz's class named Carolyn as a "thug." Respondent told Janet Zendel's first grade students who were line up to go to the bathroom, "If you've got to piss, piss, but there's not going to be no line." Respondent asked one of Mary Rudin's kindergarten students, "What are you looking at me for? Do I have piss all over my face?" She used a loud and sarcastic tone of voice. On another occasion when a child apparently urinated in a stairwell, Respondent announced over the public address system at the school, in a loud, angry voice, "Someone peed in my stairwell. When I find out who it is, I am going to beat you bloody, bloody, bloody." Respondent repeated this several times, reiterating that when she found out who the offender was, she would beat them "bloody, bloody, bloody." Respondent also used profanity in addressing members of the faculty and staff at West Riviera. She often told faculty members, "Get your shit together," and "I want it so quiet that I can hear a rat piss on cotton." Respondent commented to Jill Proce that she wanted Ms. Proce to take her paycheck and "buy some damn pants." During the first faculty meeting of the 1981-1982 school year, Respondent discussed the possibility of angry parents using profanity toward teachers. Respondent made a remark to the effect that teachers might even be called "mother fuckers." Respondent then defined the term mother fucker, and asked a faculty member, "How do you know I didn't fuck my mother?" Teacher Roma Smith heard Respondent use profane words such as fuck, shit, piss and mother fucker, in faculty meetings at West Riviera. After accusing teacher Mary Rudin of being insubordinate for not setting up tables in the hallway for registration, Respondent told Ms. Rudin, "do you see that doorway there? Don't let it hit you on the ass on your way out, if you don't like it here at West Riviera." At a preschool meeting before the commencement of the 1975-1976 school year Respondent presided over a faculty meeting wearing a T-shirt with a picture of excrement on it and the caption, "Get your shit together." Respondent used improper, inappropriate and unprofessional language in addressing faculty members at West Riviera. AT the end of Jill Proce's first day as a teacher at West Riviera, Respondent called Ms. Proce into her office, pulled her (Respondent's) pants up tight between her legs and told Ms. Proce, "This is the way you look with the lips of your vagina hanging out." Respondent asked Ms. Proce what she was trying to do to the fourth grade boys, if she was trying to give them some ideas. Respondent then proceeded to tell Ms. Proce that if Respondent was a parent and she walked into Ms. Proce's classroom, she would think that her child was being taught by a prostitute. Ms. Proce's pants were not too tight, and she was dressed appropriately for an elementary school teacher. At the beginning of each year, Respondent issued handbooks to her teachers, with instructions that they had a paddle and respondent expected them to keep law and order. If they did not keep law and order, Respondent told them they could be "blackballed" in the county. After Respondent walked in Ms. McDowell's classroom one day and found the students noisy and disorganized, she told Ms. McDowell in a conference that Respondent had friends in high places; that if she did not shape up, she would have her blackballed in Palm Beach County and she would never teach there again. After buying new clothes in an effort to meet Respondent's criticisms regarding her attire, Ms. Proce approached Respondent one day and asked her if the clothes she was wearing were suitable. Respondent answered by saying that Ms. Proce wasn't there to suit her, she was there to suit her job, and if she didn't like it she could be blackballed of Palm Beach County. On another occasion, Respondent yelled at teacher Joyce Washington in front of Ms. Washington's class, accusing her of losing a student's medical form. Ms. Washington had not lost the student's medical form. Respondent told her if she could not get her act together, that she was going to lose her job, which she spelled out "J...O...B." During the 1981-1982 school year, primary resource teacher Patsy McClain received a telephone call from Respondent, who at the time was admitted to the Palm Beach Gardens Hospital. Respondent asked Ms. McClain to bring two students to the hospital for the purpose of braiding Respondent's hair. After getting the Assistant Principal's permission, Ms. McClain selected two girls, Elinor Williams and Jamilia Dailey. After getting permission from their parents, she drove them to Palm Beach Gardens Hospital. The girls were taken out of school in mid-morning and were gone approximately two hours. AT the hospital, they braided Respondent's hair. In November 1980, Respondent approached teacher Joyce Washington during an open house at West Riviera and instructed Ms. Washington to change student Joshua Logan's grades to all "S's." Ms. Washington had previously prepared her report cards, and had issued several "U's," indicating unsatisfactory, to Joshua. Respondent told Ms. Washington to change his grades to "S's" and to give Joshua all "S's," indicating satisfactory, on his report card for the remainder of the year. The reason given was that she did not want any more hassles from the child's parents. Although in Ms. Washington's opinion Joshua's work did not warrant all "S's," she nevertheless gave the child "S's" for the remainder of the school year. When the other students in Ms. Washington's class learned of Joshua's new grades, their grades started going down. Many teachers were frightened by Respondent and taught in an oppressive atmosphere of tension and intimidation. Jill Proce had begun to look for other employment in another county. Music could not be taught except at Christmas. Music books and instruments were removed from the classrooms. So were record players. Crayons were removed out of fear that students would get crayon marks on the floors. Joyce Washington intended to seek a transfer, but volunteered to leave West Riviera when an opening occurred elsewhere. Assistant Principal Levarity tried to get a transfer because of Respondent's heaving reliance on corporal punishment. During the fall of 1979, Fran Gill, North Area Superintendent for the Palm Beach County School District, spoke to Respondent about administration of corporal punishment at West Riviera. Ms. Gill had been advised that teachers were administering corporal punishment to student sin the classroom, in violation of school board policy and administrative directive. During that meeting, Ms. Gill explained to Respondent that she must follow the school board's Administrative Directive D5.35 and gave Respondent a copy. Among other things, this directive required that the Principal or his/her administrative designee must, in ever case, determine the necessity for corporal punishment and, in ever case, designate the time, place and member of the instructional staff who will administer the punishment. In addition, the directive provided that no teacher may be required to administer corporal punishment. Notwithstanding Ms. Gill's directive to comply with Administrative Directive D5.35, Respondent continued to require teachers to administer corporal punishment to students in the classroom in order to maintain law and order at West Riviera. When Ms. Gill again became aware in May 1980 of Respondent's noncompliance with the directive, she called her and asked whether students were still being paddled in the classroom. Respondent indicated that she was still permitting students to be paddled in the classroom by teachers. This conversation occurred on May 6, 1980. ON May 8, 1980, Ms. Gill confirmed their conversation in a written memorandum to Respondent, emphasizing her prior verbal instructions. In March of 1982, Ms. Gill again met with Respondent regarding concerns expressed to her by parents. Ms. Gill found that the directive was not being followed, and that the only change which had been made was that children were being brought to the office to be paddled. The teachers were still exercising their discretion as to whether or not corporal punishment would be administered, and parents were not being contacted beforehand. Ms. Gill expressed her concern to Respondent regarding her failure to follow the school board's administrative directive. Respondent sent a letter to Ms. Gill, date March 12, 1982, in response to Ms. Gill's concerns. In her letter, Respondent states, "I held a faculty meeting this morning and explained to teachers that we will no longer paddle students for every misbehavior." As a result of Respondent's failure to follow her specific instructions concerning adherence to school board policy and administrative directives relating to administration of corporal punishment, Ms. Gill prepared a list of fourteen specific questions for Respondent to answer regarding corporal punishment at West Riviera. Respondent received the written questions on March 18, 1982, and furnished her written responses on March 31, 1982. Respondent provided false answers to these questions. In response to question one, Respondent falsely stated that in each instance of inappropriate behavior the teacher brought the student to the office and conferred with the Principal or Assistant Principal prior to utilizing corporal punishment. In response to question three, Respondent falsely indicated that teachers were not required to paddle students. In response to question six, Respondent falsely indicated that whenever a student received corporal punishment for the first or second time, a copy of the student discipline referral slip was sent to their parents. In response to question seven, Respondent indicated that the alternatives to corporal punishment were in-house suspension or suspension from school, when in fact the alternatives utilized at West Riviera included depriving the student of attending physical education or utilizing the library. In response to question eleven, Respondent failed to indicate that alternative types of punishment included depriving the student of physical education or use of the library. In response to question thirteen concerning changes made in the administration of corporal punishment within the past three years, Respondent replied that she had complied with Ms. Gill's instructions on May 6, 1980, to refrain from allowing teachers to paddle students in their classroom. In fact, Respondent continued to permit teachers to determine whether corporal punishment was appropriate and to administer it at their discretion. Although Respondent testified that failing to do one's school work did not warrant corporal punishment, Respondent administered three consecutive paddling to kindergarten student J.J. Martin for failing to do a handwriting lesson. Although Respondent changed her policy in March, 1982 by restricting the use of corporal punishment to cases of fighting or foul language, she later administered corporal punishment to one of Ms. Wolfe's students for misbehaving in her class. Ms. Wolfe had specifically requested that Respondent talk to the student, not paddle him. Respondent admits that she did not follow Administrative Directive D5.35 prior to May 7, 1980. Yet Fran Gill had specifically directed her to comply with that directive and school board policy concerning corporal punishment in the Fall of 1979. Respondent failed to prepare guidelines for administering corporal punishment at West Riviera which identified the types of punishable offenses, the conditions under which the punishment would be administered and the specific personnel on the school staff authorized to administer the punishment, contrary to Section 232.27(1), Florida Statutes. Respondent ridiculed and humiliated children by paddling them in their classrooms in the presence of their classmates on several occasions, contrary to Administrative Directive D5.35(4). She used profane and abusive language with them. In the professional opinion of Kenneth Schrimsher, Assistant Superintendent for Personnel Relations with the Palm Beach School Board, the number of incidents of corporal punishment administered at West Riviera during the 1979-1980 school year was excessive. In his view, Respondent's effectiveness as an employee of the school board has been seriously reduced. His opinion is credible and accepted as persuasive. Despite the atmosphere of fear and intimidation that prevailed at West Riviera during Respondent's tenure, student achievement on standardized tests improved dramatically. When she arrived at West Riviera, it was among the five worst schools in the county, rated by test scores; when she left in 1982, it was among the top five, out of a total of more than 50 elementary schools. Her methods also caused West Riviera to become one of the cleanest and best maintained elementary schools in the county. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's teaching certificate be revoked for five (5) years (with opportunity for reapplication) for violation of Section 231.28(1), Florida Statutes, and Rule 6B-1.06, Florida Administrative Code. DONE and RECOMMENDED this 1st day of May, 1984, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 1st day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32302 William M. Holland, Esquire 605 Clematis Street Post Office Box 2648 West Palm Beach, Florida 33402-2648 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 =================================================================
