The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), 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. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent had just cause to suspend Petitioner for 30 workdays, without pay.
Findings Of Fact No dispute exists that the School Board is a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. No dispute exists that, at all times material hereto, Mr. Boundy was employed full-time with the School Board as a teacher and held a professional service contract. Mr. Boundy had been a teacher with the School Board for 15 years. In his professional career, Mr. Boundy had been a teacher, then had practiced law in the State of Florida for 15 years, and had become a teacher again. No dispute exists that, at all times material hereto, Mr. Boundy was assigned to Nautilus Middle School, hereinafter Nautilus, in the Miami-Dade County’s school district. He was assigned to teach science. On September 30, 2005, Mr. Boundy was teaching his science class at Nautilus. He was having problems with one particular student, D. M., who was approximately 14 years of age.1 D. M. had just returned to class from being on indoor suspension, for cutting class. Earlier that day, after having returned from indoor suspension, D. M. had been involved in a physical altercation, a “minor”2 fight, and Mr. Boundy counseled him. At lunch time, another teacher broke-up a fight between D. M. and another student; Mr. Boundy counseled him again. Mr. Boundy determined that the first fight did “not” warrant a “write-up” and that the second fight perhaps “may” have warranted a write-up but that he decided not to do so.3 After lunch, while in Mr. Boundy’s class, D. M. had another fight with a student, which was D. M.’s third fight that day. Mr. Boundy has a policy in his class that, “after three strikes, you’re out,”4 therefore, instead of counseling D. M. again, Mr. Boundy determined that a “write-up” was warranted and that D. M. had to leave his class. Mr. Boundy told D. M. to leave the class and go to the office. Before leaving the class, D. M. began spraying perfume and then walked out into the hallway but did not go the office. Mr. Boundy observed D. M. still outside in the hallway. When Mr. Boundy walked out of his class into the hallway, he observed D. M spraying perfume in the hallway. Mr. Boundy asked D. M. to give the perfume to him (Mr. Boundy). D. M. raised his hand and brought it down as if to strike Mr. Boundy at which time Mr. Boundy grabbed D. M.’s hand and pulled it behind his (D. M.’s) back and told D. M. that he (D. M.) needed to go to the office. The hallway outside of Mr. Boundy’s classroom is equipped with a surveillance camera, which recorded the interaction between Mr. Boundy and D. M. after the contact described above. The surveillance camera does not record as a regular video camera but records as a series of snapshots or still pictures approximately every second, with gaps in between the snapshots; therefore, the surveillance camera fails to reveal completely what happens within a segment of time.5 As a result of the gaps in between snapshots of the surveillance camera, the testimony of witnesses is crucial in determining what happened. While in the hallway, the surveillance camera shows Mr. Boundy’s back to it and D. M. directly in front of him in such close proximity as if their bodies were touching. Mr. Boundy testified that he took D. M. by the arms and was directing him toward the doors leading to the office. Mr. Boundy’s testimony is found to be credible. Subsequently, while also in the hallway, the surveillance camera, in several snapshots, shows Mr. Boundy and D. M. separated, with D. M. facing Mr. Boundy, who testified that D. M. wrestled away from him. The surveillance camera also shows, in one snapshot, Mr. Boundy’s left hand on D. M.’s right shoulder and, in another snapshot, D. M. moving back toward the classroom. Mr. Boundy testified that D. M. was going back to the classroom without his (Mr. Boundy’s) permission. D. M. admitted that he was returning to the classroom without Mr. Boundy’s permission. Mr. Boundy’s testimony is found credible. Further snapshots by the surveillance camera show Mr. Boundy grabbing D. M. by the arms and shoulder area, when D. M. gets close to the classroom, and pushing D. M. down the hallway; and shows some students observing the conduct in the hallway. Also, the snapshots by the surveillance camera show Mr. Boundy and D. M. exiting the exit doors at the stairwell, with Mr. Boundy continuing to hold D. M.’s arms. After they go through the exit doors, the snapshots by the surveillance camera show Mr. Boundy releasing D. M. and watching D. M. go down the stairs. Mr. Boundy testified that he told D. M. to go to the office. D. M. does not deny that Mr. Boundy told him to go to the office at that point. D. M. went to the main office. The school counselor, Amy Magney, talked with D. M., who was loud and appeared to be agitated. Ms. Magney observed marks on D. M.’s arms and the back of his neck, which she described as “very red.” D. M. informed Ms. Magney that Mr. Boundy’s forceful touching had caused the red marks. Ms. Magney took D. M. to the assistant principal, Ms. Gonsky, who observed marks on D. M.’s arms, which were red, and marks on D. M.’s the neck, shoulder area, which Ms. Gonsky described as a “little red.” Mr. Boundy admits, and at no time did he deny, that he grabbed D. M. by the arms and shoulder area. For example, at the Conference for the Record (CFR) held on November 15, 2005, Mr. Boundy admitted that he held D. M.’s arms by the back directing him towards the stairs. A detective of the School Board’s police department reviewed the snapshots by the surveillance camera. From the detective’s observation, he determined that Mr. Boundy did not take any malicious action against D. M.; that D. M. was resisting Mr. Boundy; that, at one point, D. M. made an aggressive action against Mr. Boundy; and that Mr. Boundy was “directing, escorting” D. M. through the exit doors. D. M. testified that Mr. Boundy also grabbed him around the neck. Mr. Boundy denies that he grabbed or touched D. M.’s neck but admits that he grabbed D. M. at the shoulder area. V. V., a student in Mr. Boundy’s class, testified that Mr. Boundy grabbed D. M. by the neck, pushing D. M. out of the classroom. Also, the Conference for the Record (CFR) held on November 15, 2005, indicates that the same student stated that, while Mr. Boundy and D. M. were in the hallway, D. M. swung at Mr. Boundy and struck him in the chest. Mr. Boundy denies that he was struck by D. M. and D. M. denies that he struck Mr. Boundy. V. V.’s testimony is not found to be credible. The snapshots by the surveillance camera do not show Mr. Boundy grabbing or touching D. M.’s neck. Ms. Magney was the first person in the school's office to observe the marks, and when she saw the marks on the back of D. M.’s “neck,” the marks were “very red”; however, when Ms. Gonsky, the second person in the school's office to observe the marks, the marks around the “neck, shoulder area” were a “little red.” Further, D. M. had been in two physical altercations before the incident with Mr. Boundy and the last altercation had occurred at lunch time. Ms. Gonsky’s account of the location of the red marks is not inconsistent with Mr. Boundy’s testimony, regarding the shoulder area. Additionally, when Ms. Gonsky observed the marks at the neck, shoulder area, they were a little red, not red or very red. The undersigned finds Mr. Boundy’s and Ms. Gonsky’s testimony and account more credible regarding the marks being at the shoulder area, not the neck. Furthermore, the undersigned finds that Mr. Boundy grabbed D. M. at the shoulder area and that the marks at the shoulder area were caused by Mr. Boundy and were a little red. No dispute exists that D. M. was being disruptive. Mr. Boundy had counseled D. M. on two occasions that same day for fighting. D. M. had committed a third strike by fighting again in Mr. Boundy's class, and according to Mr. Boundy's classroom policy of which the students were aware, the third strike meant that the student was leaving the classroom and going to the school's office. Mr. Boundy was going to write-up D. M. for the incident but did not do so. Before he could write-up D. M., Mr. Boundy was summoned to the school's office after the administrators in the office observed the marks and heard D. M.'s version of the incident. At the beginning of each school year, the principal of Nautilus, Caridad Figueredo, has an opening meeting, consisting of two days. At the opening meeting, among other things, Ms. Figueredo notifies the Nautilus' faculty that they must comply with the rules of the School Board and the Code of Ethics, and some of the rules are reviewed with the faculty. Further, at the opening meeting, Nautilus' faculty is provided a copy of the Faculty Handbook. Nautilus' faculty signs an acknowledgement that they understand that they are responsible for becoming knowledgeable about the rules and adhering to them. Mr. Boundy signed an acknowledgement and received a copy of the Faculty Handbook. Regarding physical contact, Ms. Figueredo indicates at the opening meeting that the School Board prohibits using physical contact to maintain discipline or to affect a student’s behavior. As a result, at the opening meeting, she informs Nautilus' faculty, and stresses to them, that they should not use physical force or, generally, to come in physical contact with the students. However, as to coming into physical contact with students, an exception is recognized and allowed in the touching of a student by a teacher if the teacher has a rapport with the student and the student has no objection to or approves of the teacher just tapping him or her. That exception is not applicable in the instant case. Nautilus had a 2005-2006 Faculty and Staff Handbook, hereinafter Handbook. The Handbook contained a Progressive Discipline Plan, hereinafter Plan, for teachers to use when they encounter disruptive students. The Plan contained several steps of action, which provided in pertinent part: Step I: Teacher The teacher may handle discipline in the following ways (list not inclusive): Move close to the student – use verbal and/or non-verbal techniques to correct behavior problems * * * Speak with the student on a one-to-one basis * * * Contact parent (verbal and/or written) Hold parent or student/parent conference PLEASE NOTE: Parent contact is REQUIRED before a referral can be made to the administration. Only disciplinary problems involving infractions of the Code of Student Conduct Group III or higher (fighting . . .) may be directly referred to the administration using a case management form. * * * Step IV: Referring Students For Administrative Action Students should be sent directly to the appropriate administrator only when critical incidents occur such as fighting . . . Please use your emergency button to request for[sic] assistance. If a student becomes disruptive and you request removal the administrator will take the appropriate disciplinary action deemed necessary according to the Code of Student Conduct and provide teachers immediate feedback. (emphasis in original) The Handbook also contained a section entitled “Things To Remember When Dealing With A Student,” which provided in pertinent part: 4. DON’T: Snatch things away from students. Become confrontational. Physically block an exit. Argue or get on the student’s level. Shout or put them down. Disrespect them. * * * 6. Use common sense regarding touching students: Be aware that affectionate gestures may be misconstrued. Avoid physical contact of any kind in situations involving you and student (i.e. where there are no witnesses). Additionally, the Handbook contained a section entitled “How to Avoid Legal Complications as an Educator,” which provided in pertinent part: Respect the space of others. Do not place your hands on students. * * * Know the laws, School Board policies and school rules, and follow them. * * * Corporal punishment is prohibited in Miami- Dade County Public Schools. Treat each student with respect. Establish a policy regarding discipline. Distribute the policy to students and parents at the beginning of the year or when the students begin your class. The School Board has established “Procedures for Promoting and Maintaining a Safe Learning Environment,” which provides in pertinent part: Purpose of the Procedures for Promoting and Maintaining a Safe Learning Environment This document, Procedures for Promoting and Maintaining a Safe Learning Environment, is incorporated by reference and is a part of School Board Rule 6Gx13-5D-1.08, Maintenance of Appropriate Student Behavior. It has been prepared to assist school administrators in promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. These procedures and directions are set forth to guide and promote orderly and productive participation of students in school life and support the achievement of Florida's education goal for school safety and environment, Section 229.591(3)(e), F.S. Student actions and behaviors that can be defined as disruptive and/or threatening must be dealt with according to Florida Statutes, and Florida Board of Education and Miami-Dade County School Board Rules. This manual contains information necessary to assist school administrators in making the most appropriate decisions and taking warranted action in promoting maintaining a safe learning environment. * * * Administrators, counselors, and appropriate staff are expected to become familiar with this document, to review it periodically, and to utilize it according to its inherent purpose -- promoting and maintaining a safe learning environment in the public schools of Miami-Dade County, Florida. As the administration and staff at each school site address the requirements of current Miami- Dade County Public Schools (M-DCPS) guidelines, they should also review modifications of requirements related to school discipline and school safety as established by the Florida Legislature. * * * GUIDELINE #39: REMOVAL OF STUDENT FROM CLASS AND POSSIBLE EXCLUSION OF THE STUDENT BY THE TEACHER CURRENT LAW AND/OR PRACTICE: Florida Statutes and Miami-Dade County School Board Rules allow for teachers to remove a disruptive student from class if the behavior of the student has an adverse effect on the teacher's ability to communicate effectively with students or the ability of the students to learn. Section 232.271, F.S., provides for the right of the teacher to refuse to accept a student back to class who has been removed for disruptive behavior which adversely affects the teacher's ability to communicate effectively with the students or with the ability of the students to learn. Provisions for Exceptional Students: The Placement Review Committee shall refer to the IEP team all exclusion requests for students from exceptional education classes. Temporary Removal from Class 1. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to the student's return to class, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Educational Excellence School Advisory Council (EESAC). Code of Student Conduct Infractions The principal or designee will follow the Code of Student Conduct on all disciplinary matters. Only those disciplinary problems which disrupt a teacher's instruction, when the teacher requests the student's permanent removal from class, shall be referred to the Placement Review Committee, if the request is not resolved by the principal. A CFR was held on November 15, 2005. A Summary of the CFR was prepared and provides in pertinent part: [Mr. Boundy was asked]: 'Did you touch the student?' [Mr. Boundy] replied: 'Yes and it will never happen again.' * * * The following directives are herein delineated which were issued to you [Mr. Boundy] during the conference: Adhere to all M-DCPS [Miami-Dade County Public Schools] rules and regulations at all times, specifically School Board Rules [sic] 6Gx13-4A-1.21, Responsibilities and Duties. Adhere to The Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Cease and desist from utilizing physical means to effect the behavior of students. * * * During the conference, you [Mr. Boundy] were directed to comply with and were provided copies of the following School Board Rules: 6Gx13-4A-1.21, Responsibilities and Duties 6Gx13-4A-1.213, The Code of Ethics You [Mr. Boundy] were advised of the high esteem in which teachers are held and of the District's [School Board's] concern for any behavior, which adversely affects this level of professionalism. You [Mr. Boundy] were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. . . . Further, attached to the Summary of the CFR was "Guideline #9: Corporal Punishment, Current Law and/or Practice, from the Procedures for Promoting and Maintaining a Safe Learning Environment," which provides in pertinent part: GUIDELINE #9: CORPORAL PUNISHMENT CURRENT LAW AND/OR PRACTICE: CORPORAL PUNISHMENT IS PROHIBITED IN MIAMI-DADE COUNTY PUBLIC SCHOOLS. . . . Corporal punishment is physical force or physical contact applied to the body as punishment. Section 228.041(27), F.S., defines corporal punishment as: . . . the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term 'corporal punishment' does not include the use of such reasonable force by a teacher or principal as may be necessary for self-protection or to protect other students from disruptive students. The use of physical restraint techniques in accordance with the Miami-Dade County School Board Rule 6Gx13-6A-1.331, Procedures for Providing Special Education for Exceptional Students and Article VIII of the Contract Between Miami-Dade County Public Schools and the United Teachers of Dade is not corporal punishment. Prior to Mr. Boundy’s going into the hallway, to confront D. M., alternative avenues were available to Mr. Boundy for sending D. M. to the school's office without confronting him in the hallway. Nautilus has a protocol that, whenever a teacher is unable to control a disruptive student by using classroom management techniques, the teacher can press a security button, located in the classroom, and a security monitor or an administrator will immediately come to the classroom. The security monitor or administrator will assess the situation and remove the disruptive student. Mr. Boundy failed to use this established protocol. The undersigned does not find credible the testimony given on alternative methods of dealing with D. M., as a disruptive student, in terms of in-school suspension, student mediation, conflict resolution, parent involvement, alternative education, suspension, and expulsion as being applicable to the instant case. These alternatives are available after the student is removed from the classroom to the school's office; they fail to address the immediate removal of the physical presence of a disruptive student from the classroom. The exception to corporal punishment found at Guideline Nos. 9 and 39, regarding the use of physical restraint techniques for situations involving Exceptional Student Education (ESE), is not applicable to the instant case. Mr. Boundy's class was not an ESE class, and D. M. was not an ESE student. Also, the exception to corporal punishment found at Guideline No. 9, regarding situations to protect other students, is not applicable to the instant case. None of the other students in Mr. Boundy's class were in harm's way or needed protection in the hallway outside Mr. Boundy's classroom. However, the exception to corporal punishment in a situation for self-protection, i.e., the protection of Mr. Boundy from D. M., was applicable in the instant case. When D. M. raised his hand and brought it down as if to strike Mr. Boundy, Mr. Boundy grabbed D. M.'s arms and put his (D. M.'s) arms behind his back; at that instant, Mr. Boundy was in need of self-protection and he (Mr. Boundy) acted appropriately. But, the evidence fails to demonstrate that, after Mr. Boundy prevented D. M. from striking him, Mr. Boundy continued to be in need of self-protection. Self-protection failed to continue to exist and failed to exist during the time that Mr. Boundy was directing/escorting D. M. down the hall to the exit doors. The Administrative Director of the School Board's Office of Professional Standards, Gretchen Williams, testified that Mr. Boundy's use of physical contact in the handling of D. M. in the hallway and that the presence of red marks on D. M., exemplified excessive force, which rendered Mr. Boundy's action as a violent act. Further, she testified that Mr. Boundy's conduct was corporal punishment; that his violent act constituted unseemly conduct; and that his violent act was contrary to the School Board's prime directive to maintain a safe learning environment, which constituted unseemly conduct and was conduct unbecoming a School Board employee. Ms. Williams' testimony is found to be credible. Also, the School Board's Administrative Director, Region II, DanySu Pritchett testified that Mr. Boundy's physical force constituted violence in the workplace; and that he failed to maintain the respect and confidence of the student and the value of worth and dignity of the student through the use of physical force. Further, she testified that the failure to use an alternative method of removal by using the emergency call button was poor judgment and constituted conduct unbecoming a School Board employee. Ms. Pritchett's testimony is found to be credible. Additionally, Ms. Figueredo, testified that Mr. Boundy subjected D. M. to unnecessary embarrassment by using physical force in the hallway in front of D. M.'s classmates while Mr. Boundy was directing/escorting D. M. down the hall. Further, Ms. Figueredo testified that, during the hallway incident, Mr. Boundy engaged in corporal punishment, conduct unbecoming an employee of the School Board, unseemly conduct, and poor judgment, and was not a good role model to the students and staff. Ms. Figueredo's testimony is found to be credible. Also, Ms. Figueredo testified that Mr. Boundy's use of poor judgment and failure to use established protocol and to exemplify a good role model to the students and the staff caused Mr. Boundy to lose his effectiveness. Ms. Figueredo's testimony is found to be credible. Pending the investigation of the incident by the School Board, Mr. Boundy was removed from the classroom. He was placed on alternative assignment, i.e., at his home. Due to Mr. Boundy's failure to follow established protocol at Nautilus for the removal of D. M. from the classroom, to the physical force used by Mr. Boundy, to the marks that were a little red and were caused by the physical force, and to the seriousness of the incident, by memorandum dated November 21, 2005, Ms. Figueredo recommended a 30-day suspension for violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties. Ms. Pritchett agreed with the recommendation. By memorandum dated December 1, 2005, the School Board's Region Center II concurred in the recommendation. On February 28, 2006, a meeting was held with Mr. Boundy to address the forthcoming School Board's consideration of the recommendation for a 30-day suspension without pay. Those in attendance included Mr. Boundy, Ms. Williams, Ms. Pritchett, Ms. Figueredo, and a UTD representative, Mr. Molnar. The determination was that Mr. Boundy would be recommended for a 30-day suspension without pay for just cause, including but not limited to "deficient performance of job responsibilities; conduct unbecoming a School Board employee; and violation of State Board Rule 6B-1.001, Code of Ethics of the Education Profession in Florida; and School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-5D-1.07, Corporal Punishment--Prohibited." By letter dated March 1, 2006, Mr. Boundy was notified by the School Board's Assistant Superintendent, among other things, that the School Board's Superintendent would be recommending, at the School Board's meeting scheduled for March 15, 2006, the 30-day suspension without pay for just cause, indicating the violations aforementioned. By letter dated March 16, 2006, the School Board's Assistant Superintendent notified Mr. Boundy, among other things, that the School Board had approved the recommendation and that he was not to report to work at Nautilus from March 16, 2006 through April 26, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding that just cause existed for the 30-day suspension, without pay, from employment of Robert Boundy. DONE AND ENTERED this 30th day of April 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 30th day of April, 2007.
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct (to: wit: "conduct unbecoming a School Board employee" and "misconduct in office") alleged in the Notice of Specific Charges? If so, whether such conduct provides the School Board of Dade County, Florida, just or proper cause to take disciplinary action against him? If so, what specific disciplinary action should be taken?
Findings Of Fact Based upon the evidence received at the formal hearing in this case, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent is now, and was at all times material to the instant case, an employee of the School Board occupying a school monitor position. He currently is under suspension as a result of the incident described in the Notice of Specific Charges. Other than this suspension, he has had no formal disciplinary action taken against him during the period of his employment with the School Board. 1/ Respondent's employment with the School Board began on March 10, 1993, when he was hired to fill an hourly school monitor position at John F. Kennedy Middle School (JFK). At the beginning of the 1993-1994 school year, Respondent became a full-time school monitor at JFK. He remained in that position until he was administratively reassigned in March of 1995, following the incident which led to the initiation of the instant disciplinary proceeding. As a school monitor, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1994, through June 30, 1997 (UTD Contract). Article V of the UTD Contract addresses the subject of a "employer rights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate employees "for just cause." Article VIII of the UTD Contract addresses the subject of a "safe learning environment." Section 1, paragraph A, of Article VIII provides as follows: A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Section 1, paragraph D, of Article VIII provides, in part, as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accord- ingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. Article XXI of the UTD Contract addresses the subject of "employee rights and due process." Section 1, paragraph B, of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA)." Section 3, paragraph D, of Article XXI provides that educational support personnel who have completed their probationary period may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality and/or conviction of a crime involving moral tur- pitude. Such charges are defined, as appli- cable, in State Board Rule 6B-4.009. Section 3, paragraph F, of Article XXI provides, in part, that such an educational support employee is entitled to an appeal hearing on the Superintendent's recommendation that he or she be terminated and is further entitled to be served by the School Board with a Notice of Specific Charges prior to the hearing. Valerie Carrier is now, and was at all times material to the instant case, the principal of JFK. As principal, Carrier is responsible for the overall operation of the school. It is her obligation to take the necessary measures to maintain a safe environment for the school's students. There is a security staff at the school, comprised of school monitors, that assists Carrier in carrying out this responsibility. According to their job description, the school monitors on the school's security staff have the following "basic objectives" and "job tasks/responsibilities:" BASIC OBJECTIVES Under general direction from the school principal, he/she performs duties to monitor student activity in promoting and maintaining a safe learning environment and insures that appropriate standards of conduct are followed. JOB TASKS/RESPONSIBILITIES Visually observes student behavior during school hours, on school property. Reports serious disturbances to the school admini- stration and resolves minor altercations. Physically patrols all school buildings, grounds, and determines reason for the pre- sence of outsiders. Stops and questions all students not in class during class time. Monitors parking lots and student gathering areas (before, during and after school hours). Reports any safety or security problems to the administration. Performs any other duties set by the school principal or his/her designee. Carrier assigns each school monitor a post at which the monitor performs these job duties. If a monitor observes, from his or her post, a student engaging in inappropriate behavior, the monitor may attempt to verbally redirect the student, but the monitor is not permitted to impose consequences for the student's behavior. Each monitor is issued a hand-held radio to be used for communicating with other school personnel. If a misbehaving student fails to comply with a monitor's verbal instructions, the monitor is required to use the hand-held radio to advise an administrator of the situation. Joshua Cummings was a student at JFK during the 1994-95 school year. He frequently engaged in inappropriate behavior. Carrier gave the members of her staff, including Respondent, special instructions regarding how they should respond to acts of inappropriate behavior on Joshua's part. 2/ She told them that they should report any such acts directly to her or, in her absence, her designee. On March 17, 1995, during the first lunch period, Respondent was assigned to a post on the entrance courtyard side of the chain link double-gate that separates the entrance courtyard from the cafeteria spill-out area. The cafeteria spill-out area is, as its name suggests, an area outside the cafeteria where students gather after eating lunch and wait for their lunch period to end. There is a school monitor posted in the cafeteria spill-out area near the door that students use to exit the cafeteria and enter the spill-out area. Another school monitor is stationed on the other side of the exit door inside the cafeteria. Pursuant to the standard operating procedure at the school, the chain link double-gate between the entrance courtyard and the cafeteria spill-out area remains closed and locked until the end of the lunch period, when the students are picked up by their teacher. At the teacher's request, the school monitor manning the post on the entrance courtyard side of the double-gate unlocks (with a key) and then opens the double-gate 3/ and lets the students waiting in the cafeteria spill-out area go into the entrance courtyard to meet their teacher. If it becomes necessary for a student in the spill-out area to use the restroom before the end of the lunch period, the student must reenter the cafeteria, obtain a pass from an administrator 4/ and then leave the cafeteria through the cafeteria's main entrance. Students are not permitted to use the double-gate to exit the spill- out area before the end of the lunch period. On March 17, 1995, Joshua Cummings had lunch during the first lunch period (which began at approximately 11:30 a.m. and lasted approximately 30 minutes). Jean LaDouceur and Dorys Cadet were among the other students who had lunch during the first lunch period on March 17, 1995. Approximately 100 or more of these students, including Joshua, Jean and Dorys, were in the cafeteria spill-out area, prior to the end of the first lunch period on this date, when Joshua started shaking the chain-link double- gate and yelling at Respondent to unlock and open the gate so that he (Joshua) could go to the restroom (which was located off the entrance courtyard near the gate). Respondent was in the area of his assigned post in the entrance courtyard sitting on the steps leading to the school auditorium. He got up and, as he walked toward the double-gate, he told Joshua that Joshua had to wait until the end of the period if he wanted to exit the spill-out area through the double-gate. Joshua apparently did not want to wait. He continued to shake the double-gate and shout obscenities at Respondent. Respondent responded in an unseemly and inappropriate manner that evinced a reckless disregard for the safety of Joshua and the other students in the spill-out area who were around him. Instead of continuing his efforts to verbally redirect Joshua or radioing for assistance, Respondent, from his position on the courtyard side of the double-gate, responded to Joshua's misbehavior by angrily hurling his hand-held radio (which had a battery pack attached to it) at the gate near where Joshua (who was on the spill-out area side of the gate) was standing. The radio hit the gate and shattered. Jean and Dorys were sitting on a picnic table in the spill-out area approximately twenty feet from the double-gate. There were several other students on or near the table with whom Jean and Dorys were conversing. The battery pack that had been attached to Respondent's hand-held radio before Respondent threw the radio at the gate wound up striking Jean on the right side of his forehead while he was sitting on the picnic table. (It apparently travelled through a space in the center of the gate.) Jean started bleeding. Accompanied by Dorys, Jean went to see Carrier to report what had happened. (To get to Carrier's office, which is off the entrance courtyard, approximately 20 feet from the double gate, they had to reenter the cafeteria because the double-gate was still locked.) Joshua also went to see Carrier. (He had been "nick[ed]" by a piece of Respondent's shattered radio.) After speaking with Jean and Joshua, Carrier called fire rescue. Fire rescue subsequently arrived on the scene and treated Jean's wound. Jean was advised by the paramedic who treated him to have a physician close the wound with stitches. Jean, however, did not seek further medical attention. (The wound eventually healed, but Jean has a small scar on the right side of his forehead as a result of his injury.) Carrier also called Jean's and Joshua's parents. After Jean's and Joshua's parents arrived at school, Carrier met with Respondent to discuss the incident. Respondent told Carrier what had happened. He went with Carrier to the entrance courtyard where he had been stationed and described how and where he had thrown his hand-held radio. Carrier picked up the pieces of Respondent's hand-held radio that were lying on the ground near the double-gate. Respondent also freely and voluntarily, at Carrier's request, prepared a written statement on the day of the incident in which he admitted that earlier that day, at about 11:53 a.m., in response to Joshua's yelling and kicking the double-gate, he had thrown his radio at the gate and that "parts of the radio [had gone] thr[ough] the gate and nick[ed Joshua]." After hearing the students' and Respondent's accounts of the incident, Carrier had legitimate concerns regarding Respondent's ability to effectively carry out his responsibilities as a school monitor. Respondent's conduct had jeopardized the health, safety and well-being of the very individuals it was his job, as a school monitor, to protect. Following the completion of an investigation of the incident, the School Board's Superintendent of Schools recommended 5/ that the School Board suspend Respondent and initiate a dismissal proceeding against him. The School Board took such recommended action at its July 12, 1995, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining Respondent's suspension and dismissing him as an employee of the School Board of Dade County, Florida. DONE and ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1996.
The Issue The issue in this proceeding is whether Petitioner, St. Lucie County School Board, has just cause to terminate Respondent's employment.
Findings Of Fact Based on the evidence presented at the hearing, the undersigned credits and makes the following findings of material and relevant facts: Lockridge has been employed by the School Board and last worked as an ESE behavior technician at Northport K-8 School. Pet. Exh. 1. Lockridge is a continuing status employee covered under the Collective Bargaining Agreement ("CBA") between the School Board and the Classroom Teachers' Association Classified Unit ("CTA/CU"). Resp. Exh. 6. The CTA/CU consists of behavior technicians, paraprofessionals, bus paraprofessionals, and clerical staff. Tr. II, p. 180, lines 10-14. During the 2014-2015 school year, Lockridge was assigned to Teacher Amber McDonald's self-contained classroom for intellectually disabled students at Floresta Elementary. The intellectually disabled classroom is for students with emotional disorders and students with an intelligence quotient ("IQ") under 69. Tr. I, p. 51, line 25-p. 52, line 2. For the 2014-2015 school year, there were five adults working in Ms. McDoanld's classroom: Randolph Lockridge, behavior technician; Sharon Koen, paraprofessional; Stephanie Ludwig, paraprofessional; Ms. McDonald, classroom teacher; and Deborah Ramsingh, student teacher. Tr. I, p. 52, line 24-p. 53, line 7. There were approximately 12 students in the classroom. Tr. I, p. 53, lines 8-10. Student D.S. was an eight-year-old ESE student whose primary disability is intellectual. D.S. is non-verbal and has Down's syndrome. Pet. Exh. 7. Because of his disability, D.S. is limited to two-word utterances "here and there." He has an IQ below 60 and intellectually he is on about a one and one-half- year-old level. Tr. I, p. 54, lines 10-17. September 8 and 9, 2014, Incidents with D.S. On September 8, 2014, Ms. Ramsingh was engaged in a lesson with the students on using crayons, teaching them how to hold the crayons and how to draw on the paper. D.S. kept taking his crayons and throwing them on the floor. She observed Lockridge take the student's hand and press his fingernail into the palm of D.S.'s hand. The student screamed "ow" and pulled his hand back. Tr. I, p. 34, lines 9-18. Lockridge looked at him and asked, "Why are you crying, what's wrong?" Tr. I, p. 35, lines 14-15. Ms. Ramsingh reported what she saw the following day to Ms. McDonald, the supervising teacher in the classroom. Tr. I, p. 35, line 25-p. 36, line 12. On September 9, 2014, when Lockridge and D.S. returned to the classroom from physical education ("PE"), Ms. Ramsingh observed another interaction between them. D.S. had his crayons, and he threw them on the floor again. Lockridge took his hand and pushed his fingernail into the palm of the student's hand again. He said "ow" again, but continued to throw his crayons on the floor. Lockridge pressed his finger into the student's hand a second time. The student said "ow" again. When Lockridge realized Ms. Ramsingh was looking at him, he commented, "I shouldn't do that, they don't like when I do that, some people think it is abuse." Tr. I, p. 36 line 22-p. 37 line 9. Ms. Ramsingh went to Ms. McDonald and told her that Lockridge put his fingernail in the student's hand two more times, and she told Ms. McDonald the statement that Lockridge made. Tr. I, p. 38, lines 12-18. Ms. McDonald left the classroom to report it. Tr. I, p. 38, lines 17- 20. Ms. Ludwig took D.S. into the restroom and yelled for Ms. Koen to come into the restroom. Tr. I, p. 39, lines 14-18. Ms. Koen told Lockridge to get Ms. McDonald. Tr. I, p. 40, lines 9-14. The staff had ice packs on D.S. Tr. I, p. 40, lines 21-23. Ms. Ramsingh observed the fingernail marks in D.S.'s hand and the ice that the staff was putting on D.S.'s wrist. Tr. I, p. 47, lines 5-9. Ms. Ramsingh gave a statement to law enforcement the following day. Tr. I, p. 41, lines 3-7; Pet. Exh. 4. She also provided a statement for the School Board's investigation. Pet. Exh. 7. Ms. McDonald testified about what she observed on D.S.'s body (after the student had returned from P.E.). She described it as a fresh bruise about three to four inches on both of D.S.'s wrists; it looked like he had a hand mark on both his wrists, and it was purplish already. Tr. I, p. 55, lines 5-11. D.S. did not have any bruises on his body before he went to PE. Ms. McDonald asked Lockridge what happened. Lockridge said he did not know, "maybe he fell." Tr. I, p. 56, lines 1-2. Lockridge said he had to help D.S. walk. Tr. I, p. 56, lines 5-6. D.S. did not have any bruising on his body when he left the classroom for PE. But, he returned with bruises on his wrist, and Lockridge was responsible for supervising D.S. while he was at PE. Tr. I, p. 73, lines 17-25. Ms. McDonald testified that her observation of Lockridge was that there were a lot of times he was loud and instead of de-escalating a situation, he would often escalate it. Tr. I, p. 59, lines 1-3. There were parents of children that Lockridge had worked with who had concerns about Lockridge. As a result, Ms. McDonald restricted him from working with specific students in the classroom. Tr. I, p. 58, lines 4-5 and lines 15-18. As a behavior technician, Lockridge was trained in Crisis Prevention Intervention (CPI). Pet. Exh. 20 and Exh. 23. The purpose of CPI is to de-escalate a situation before it ever comes to the point of having to restrain a child. Tr. I, p. 59, lines 4-8, and p. 59, lines 12-14. Ms. McDonald testified that de-escalation means to approach the student and get them to calm down, to breathe. Tr. I, p. 60, lines 1-6. Ms. McDonald also testified that it is not appropriate to restrain a child by the wrist where bruising would be caused. Tr. I, p. 62, lines 21-24. If the child begins to resist, "the teacher should not move, but should stand there until the child is ready to move." Tr. I, p. 64, lines 2-4. Lockridge provided a statement to the principal regarding the September 9, 2014, incident with D.S. Pet. Exh. 9. Law enforcement was contacted. Tr. I, p. 56, lines 14- 15; Pet. Exh. 4. On September 10, 2014, the school security officer, Frank Sisto, notified Maurice Bonner, executive director of Human Resources, of Ms. Ramsingh's report. Pet. Exh. 11. On September 10, 2014, Mr. Bonner hand-delivered a Formal Notice of Investigation and Temporary Duty Assignment to Lockridge and also verbally notified Lockridge of the allegations. Pet. Exh. 6; Tr. II, p. 171, lines 23–p. 172, line 11. Lockridge was temporarily assigned to the ESE office pending an investigation. On March 19, 2015, the School Board's internal investigation concluded. Pet. Exh. 7. On May 1, 2015, Mr. Lockridge received a Letter of Reprimand from Mr. Bonner and was reassigned to Northport K-8 School as a behavior technician. Pet. Exh. 15. Involvement by Mr. Maurice Bonner Mr. Bonner testified that he discussed Lockridge's conduct and his expectations concerning future conduct with Lockridge. Specifically, Mr. Bonner explained to Lockridge that inappropriate discipline of students was not acceptable behavior and that he was to cease and desist from any type of such discipline in the future. Tr. II, p. 174, line 15-21. As executive director of Human Resources for St. Lucie County Public Schools, Mr. Bonner is in charge of the hiring process for applicants, in charge of records for the school district employees, supports administrators in the discipline process, works with employees on leave, interprets School Board policy, and provides support to the superintendent and the School Board members. Tr. II, p. 168, lines 12-17. Mr. Bonner is responsible for applying and enforcing School Board Policy Chapter 6.00, Human Resources. Tr. II, p. 169, line 24–p. 170, line 4. When an allegation of inappropriate conduct or violation of School Board policy is made for an individual who interacts with students, and if it rises to the level of institutional abuse, the school district's protocol is for the School Board administrators to contact the Department of Children and Families, law enforcement, the human resources administrator, and then the parent. Tr. II, p. 171, lines 5-15. After Lockridge was assigned to Northport K-8 School on May 1, 2015, there was another incident involving Lockridge and a disabled student, V.S.I. Tr. II, p. 175, lines 14-18. On January 20, 2015, when Lockridge said he did not want to give any further statement, he and Victoria Rodriguez, his union representative, asked for a copy of the incident report from the law enforcement officer. Tr. II, p. 179, lines 21– p. 180, line 3. The School Board provided the incident report to Lockridge and Ms. Rodriguez, and Lockridge wrote a statement. Pet. Exh. 10. Lockridge said he was too nervous (about the meeting) and he did not want to sit down and answer questions. But, he eventually wrote his statement after reviewing law enforcement's incident report while his union representative was present. Pet. Exh. 10; Tr. II, p. 182, line 6. By letter dated June 29, 2015, Superintendent Genelle Yost informed Lockridge that she intended to recommend to the School Board that he be terminated. Pet. Exh. 22. Mr. Bonner, in his conversation with Lockridge regarding the first incident (with Student D.S.), warned and instructed Lockridge to not use inappropriate discipline on students. Despite this warning, a few weeks later at Northport K-8 School, Lockridge used inappropriate discipline on a student again. Mr. Bonner, as an administrator, had given Lockridge a previous directive that was not followed. In Mr. Bonner's professional opinion, that constituted insubordination. Tr. II, p. 185, lines 17–p. 186, line 1; Pet. Exh. 24. Mr. Bonner testified that sitting on a student's hands is not appropriate discipline. It is not an appropriate method of restraint of a student. Tr. II, p. 186, lines 5-9. In addition, it constitutes a violation of the code of ethics of the standards for employees in the education profession, putting students in danger of harm. Mr. Bonner stated that "We're in charge of their health, welfare and safety and that's not meeting that standard." Pet. Exh. 24; Tr. II, p. 186, lines 10-14. Commenting on the incident involved, Mr. Bonner felt that "sticking a thumb down in a student's palm" was indecent conduct and can be considered abusive to a student. Tr. II, p. 186, lines 21–p. 187, line 1; Pet. Exh. 24. In his opinion, Lockridge's conduct constituted unsatisfactory work performance since he had harmed a student. He also felt it constituted neglect of duty and violation of any rule, policy, or regulation. Tr. II, p. 187, lines 5-18; Pet. Exh. 24. Mr. Bonner explained how progressive discipline works: We have several steps that we can use as far as disciplining employees based on their conduct and based on the severity . . . if we believe that the incident or the behavior is severe enough, we can skip steps . . . we can start immediately with termination if it's severe enough. If we don't believe it is severe enough to go that way, then we go down that continuum--a letter of concern, letter of reprimand, suspension or termination. Tr. II, p. 191, lines 7-23. When you look at progressive discipline, you have to look at what the previous action is. If you're going to look at multiple offenses of the same nature, you can't discredit that. T. II, p. 193, line 23–p. 194, line 2. In Mr. Bonner's opinion, Lockridge's second incident of sitting on a child's hand is "also abusive and discourteous conduct, it's immoral and indecent, it's negligent because he was told not to use inappropriate discipline, it's unsatisfactory work performance, and it's a neglect of his duty because it's not proper protocol or training for restraint of a student. His conduct is also a violation of the rules, policies, and regulations." Tr. II, p. 194, lines 3-10; Pet. Exh. 24. Lockridge had a duty and responsibility, and he failed to discharge that duty knowingly, and that was negligence, in Mr. Bonner's opinion. Tr. II, p. 194, lines 23-25; Pet. Exh. 24. Lockridge knew that sitting on a child's hands was not a proper restraint technique under the CPI training that he has received as a behavior technician for the St. Lucie County Public School System. He was told, based on a previous instruction, that sticking his thumb down in the student's hand was not appropriate discipline or restraint of a student. He knew that what he was doing was not appropriate and that it did not meet the standards of the St. Lucie County Public School System nor the training he received. Tr. II, p. 195, lines 11-23. Mr. Bonner told Lockridge when he gave him the Letter of Reprimand that if Lockridge violated any of the School Board policies again, more severe disciplinary action could be taken. Tr. II, p. 197, lines 13-22. The standard for skipping steps in progressive discipline is based on the employee's behavior. Tr. II, p. 198, lines 12-15. "It is on a case by case basis . . . if you did something very egregious, we don't have to start at the beginning of that continuum. Based on the behavior of the employee then [sic] dictates where we go on to that continuum." Tr. II, p. 198, lines 17-23. May 19, 2015, Incident with V.S.I. Jennifer Staab was a behavior technician at Northport K-8 School. Tr. I, p. 80, lines 1-6. Ms. Staab was certified in CPI. Tr. I, p. 81, lines 5-9. She worked with students in an emotionally behaviorally disturbed ("EBD") classroom on May 19, 2015. It is a self- contained classroom. Tr. I, p. 82, lines 1-7. On May 19, 2015, there were eight or nine students in the EDB self-contained classroom. Tr. I, p. 82, lines 11-14. There was only one way into the desk; the desk was pushed up against the computers. Tr. I, p. 83, lines 11-15. Ms. Staab heard a slap and that drew her attention to that direction. Tr. I, p. 84, lines 5-8. Lockridge was sitting on the desk; his back was towards V.S.I. Tr. I, p. 84, lines 11-12. V.S.I. was sitting in the desk. Tr. I, p. 84, lines 14-18. When Lockridge got off of the desk, Ms. Staab noticed deep indentations, at least two or three of them, on the student's one arm. Tr. I, p. 85, lines 22–p. 86, line 5. Ms. Staab concluded that Lockridge had to have been sitting on V.S.I.'s hands. Tr. I, p. 86, lines 16-18. From the way behavior technicians are trained, Ms. Staab considered Lockridge being seated on the desk and trying to prevent the student from getting out of the desk, to be an inappropriate restraint. Tr. I, p. 87, lines 14-22. If the student is not a threat to themselves or others, then physical restraint is not appropriate. Tr. I, p. 89, lines 15-18. While doing a single-hold restraint, the adult is behind the child. Tr. I, p. 93, lines 1-4. Ms. Staab never observed Lockridge behind the child. Tr. I, p. 93, lines 5-7. Ms. Staab noticed two indentations on V.S.I.'s arm, about three inches long. Tr. I, p. 93, lines 8-19. Testimony of Randolph Lockridge Ms. Staab did not witness V.S.I. trying to elope or run from the classroom. Tr. I, p. 98, lines 22-24. Lockridge admitted that he took hold of V.S.I.'s wrists, causing bruising to her wrists. Pet. Exh. 16; Tr. II, p. 213, lines 6-9. From Lockridge's perspective, "it was crisis because she was not being safe . . . she was 'not complying' with his verbal direction." (emphasis added). Tr. II, p. 213, lines 19-23. Lockridge argued that V.S.I. exhibited behavior, i.e. her elopement, that might harm other students. Tr. II, p. 213, line 24–p. 214, line 5.1/ Lockridge testified, without specific detail, that V.S.I. "could have hit, kicked, maybe spit on somebody or something." Tr. II, p. 214, lines 7-10. Lockridge testified that he was holding V.S.I.'s wrists when he was sitting on them. Tr. II, p. 215, lines 4-6. Despite his training, Lockridge testified that he did not understand that it was an inappropriate method of discipline for him to be sitting on V.S.I.'s hands. Tr. II, p. 215, lines 11-13. Lockridge testified that he did not intentionally violate any School Board policies or intend to violate any directives that he was given. Tr. II, p. 220, line 24–p. 221, line 3. This appeared, in part, to be the crux of his defense to the charges brought. Lockridge testified that when the incident was happening at Northport K-8 School with V.S.I., he reverted to and used his "military restraint training," instead of his School Board restraint training. Tr. II, p. 222, lines 15-17. Lockridge testified that he did not bring up this issue of his military training "kicking in," as he put it, concerning the incident involving V.S.I. However, he discussed it before with a behavior analyst concerning another student. Tr. II, p. 230, lines 19-21, and p. 231, lines 18-20. Lockridge related an incident that had occurred in May 2015. Apparently, a student tried to assault him while he was walking back to the ESE office. His old military restraint training came into play, and he ended up having to put the student on the ground. He physically put the student on the ground. Tr. II, p. 232, lines 12-16, and p. 233, lines 4-11. In a candid admission, Lockridge testified that he does not believe that "at this moment" he could work with disabled students at the school district as a behavior technician. Pet. Exh. 12; Tr. II, p. 236, lines 21-24. Describing his military restraint training (that he sometimes reverts to), Lockridge testified that because he was going to be working with prison detainees, "They taught us various techniques to keep yourself safe and try not to do harm to the prisoners either." Tr. II, p. 237, lines 17-22. Lockridge testified that, unlike CPI training, military restraint training is not non-violent training. It could be violent. Because, as he put it, you are working with prison detainees. So, Lockridge could not say it was non-violent. Tr. II, p. 237, line 23–p. 238, line 3. When asked if it is foreseeable that he could become violent with a student, Lockridge answered, "I don't know. . . . I understand what I did was wrong. I don't know how I could have done some things differently. I don't know." Tr. II, p. 238, lines 4-8. When asked if he can say with any degree of certainty that he may not pose a danger to students, Lockridge testified that, "if I'm put in a stressful situation with a very aggressive student or that I perceive to be aggressive, I do what I think is best for my safety at the time. Or the student's safety too." Tr. II, p. 238, lines 14-24. Lockridge testified, frankly, that for him, it is sometimes more of an automatic response and that he cannot really control this military restraint training that kicks in. Tr. II, p. 238. line 25–p. 239, line 3. Testimony of Virginia Snyder Virginia Snyder works for the Department of Children and Families as a child protective investigator. Tr. I, p. 153, lines 6-8. She prepared a report of institutional abuse, an investigative summary. Pet. Exh. 2.; Tr. I, p. 153, lines 13-25. Her investigation and report involved Lockridge sitting on V.S.I.'s hands to restrain her in the classroom at Northport K-8 School. Tr. I, p. 154, lines 21-25. She went to the school, talked with administration, talked to witnesses, and talked to children involved on the report. Tr. I, p. 154, lines 3-9. Ms. Snyder made verified findings for "threatened harm of physical injury." Tr. I, p. 154, lines 11-16. Ms. Snyder concluded that Lockridge had in fact sat on the child's hand. Tr. I, p. 155, lines 2-4. She also made a finding that the school district's policies and practices were appropriate. Tr. I, p. 155, lines 15-17. "Threatened harm" means the possibility that the person's actions can cause an injury to the child. Tr. I, p. 155, line 23–p. 156, line 1. Ms. Snyder testified that the Department of Children and Families felt that a pattern was appearing due to a prior investigation that was closed without a substantiated finding. When the Department of Children and Families conducted an institutional staffing, the Department of Children and Families was concerned that there was a pattern starting. Tr. I, p. 157, lines 4-8. Specifically, Ms. Snyder "looked at how Lockridge restrained the child, was it appropriate or was it inappropriate . . . . And that is where we established that there was a type of behavior, a pattern starting." Tr. I, p. 157, line 20–p. 158, line 2. "We (DCF) don't make the recommendation. We make the report so that those involved can have a copy of an official report from the Department of Children and Families. We put the findings in there so that whoever administrative-wise is taking a look at it can make a decision, like the School Board, as to what penalty that staff member may face." Tr. I, p. 159, lines 17-24. Based on Department of Children and Families legislation, she felt that the two incidents are "a pattern" and are not reflective of just isolated events. Tr. I, p. 162, lines 1-5, 16-17. Testimony of William Tomlinson Bill Tomlinson is the executive director for Student Services and Exceptional Student Education. Tr. I, p.112, lines 4-5. He has worked for the School Board a total of 29 years. Tr. I, p. 112, lines 13-14. Tomlinson testified regarding whether behavior technicians are trained in any sort of restraint or CPI. He testified that the school district has two separate models that are used in the district. The first is non-violent crisis prevention intervention, better known as CPI. The second model the district uses, for more severe children that may be in a special day school, is professional crisis management. Non- violent CPI is a nationally recognized model that deals primarily with strategies to verbally de-escalate behavior. It employs different levels of strategies with students before getting into physical management of any type of behavior. The physical management piece is a part or a component of the training, but it is really the last resort. In his opinion, "that (i.e., physical management) should be last." Tr. I, p. 114, lines 4-21. It is meant to be a process in which the teacher tries to curtail the behavior of the student by working with them to help them self-regulate so that the student can take ownership of his/her behavior and get themselves under control without the teacher having to do any type of physical management. Tr. I, p. 115, lines 8-16. "Many teachers, many principals have all been trained in this method so that they understand how to de-escalate behavior verbally, how to work with students to offer choices that you can do, versus doing this." Tr. I, p. 115, line 24. Tomlinson noted that "restraint" is a term used "whenever we physically manage a person . . . the way we define it is if you have to immobilize someone's limbs and they're not free, they no longer have freedom of movement, that would be considered a restraint." Tr. I, p. 116, lines 5-10. In his opinion, restraint of anyone is the last resort. Tr. I, p. 117, line 7. He added that "if you see that the behavior is something that you can verbally begin to de-escalate, have conversation with the child, the child is able to understand rationally what it is that you're asking of them, then you're going to employ all of these strategies before you ever get to that last resort." Tr. I, p. 118, lines 4-9. Any time an employee in the district has involvement with a child and there is a report of suspected institutional abuse, Tomlinson is notified. Mr. Bonner (Human Resources) is notified, and he, law enforcement, and the Department of Children and Families all work through the process together. Tr. I, p. 122, lines 16-23. Lockridge was removed and placed in the ESE department, working in the reception area where there was no access to children while the investigation was ongoing. Tr. I, p. 123, lines 6-11. Freedom of movement is good (the child likes the freedom of running off and playing on a playground or during PE) as long as they are safe. Tr. I, p. 126, lines 19-23. "If we end up bruising the child in anything that means to us that we have applied the wrong process or the wrong procedure." Tr. I, p. 127, lines 4-8.2/ "If the child starts fighting back in the process where there is restraint used, they're trying to get out of that, you need to let them go. You may have to resume the restraint once it is safe to do so." Tr. I, p. 127, lines 9-11. "If the child isn't hurting anybody . . . from crawling under (the desk) or crawling out of their desk . . . then it would be appropriate to not bring attention or get attention from someone. Instead, praise another child for acting appropriately or remaining in their chair. This is an effective approach to use." Tr. I, p. 128, lines 3-25. It is "absolutely not appropriate," in terms of restraint, to sit on a child's hand. Tr. I, p. 129, lines 1-3. It is not appropriate to take a disabled child by the wrist to try to get them to go where you want them to. The first appropriate response is "take my hand and let's walk." Tr. I, p. 131, lines 17–p. 132, line 3. Tomlinson testified, "I may take a person simply by the elbow and follow me. . . . That . . . is after you have exhausted the verbal demand for this. Because it's unnatural to have to do that, to lead people or to pull them where you want them to go." Tr. I, p. 132, lines 14-24. The January 13, 2012, mid-year review for Lockridge shows improvement needed in job knowledge and skills and quality of work. Resp. Exh. 5; Tr. I, p. 143 line 25–p. 144, line 2. Listed on Lockridge's mid-year evaluation at the time was that he needed improvement in job knowledge and skills and the quality of work. The narrative indicated that he was required to work with the behavior analyst at Sam Gaines School to review the appropriate protocols to follow to gain compliance from the students with whom he is working. Lockridge was required to attend training offered behavior technicians on early release and professional development days. Tr. I, p. 149, lines 6-14; Pet. Exh. 19. Lockridge was directed to increase his knowledge of behavioral tools to verbally de-escalate a situation, as well as to remain objective instead of entering into a verbal disagreement with students. It means not getting into a verbal power struggle with the child. "Be calm, relaxed in the tone and tenor of your voice and, whenever you work with the individual, don't let that person bring you into the type of behavior that they're exhibiting." Tr. I, p. 149, line 4–p. 150, line 4; Pet. Exh. 19. Finally, Tomlinson testified that it would not be appropriate for a behavior technician to drive their fingernail into the palm of any child. Tr. I, p. 150 lines 5-9.
Recommendation Based on the foregoing proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board terminating Respondent from his position as an ESE behavior technician. DONE AND ENTERED this 4th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2016.
