The Issue Whether Respondent violated the Florida Statutes and Florida Administrative Code rules, as charged in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator's Certificate No. 803275, valid through June 30, 2021, covering the areas of elementary education, exceptional student education, middle grades integrated curriculum, and social science. At the time of the final hearing in this proceeding, Respondent had taught for approximately 17 years. The Complaint The Complaint alleges that Respondent spoke ill of student E.J.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, E.J. was embarrassed. Additionally, the Complaint alleges that Respondent spoke ill of student A.S.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, A.S. was embarrassed. The Complaint also alleges that Respondent criticized student J.P.'s work on an assignment, including, but not limited to, saying he had not put any work into it. As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(j), and rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5. Evidence Adduced at the Final Hearing Respondent began teaching in the St. Lucie County School District ("District") on August 1, 2016. At the time of Respondent's conduct that is alleged to violate section 1012.795 and rule 6A-10.081, Respondent was employed as an eighth grade social studies teacher at West Gate K-8 School ("West Gate"), in the District. The 2018-2019 school year for the District began on August 13, 2018. September 14, 2018, was Respondent's last day of employment with the District. The alleged conduct giving rise to this proceeding occurred at some point between August 13, 2018, and September 14, 2018. On or about September 14, 2018, the District initiated an investigation into Respondent's conduct while she had been employed at West Gate. E.J. was a student in Respondent's eighth grade history class. Respondent assigned the students to complete a history project. After E.J. turned in his project, Respondent called him up to her desk and told him, in the front of the class, that his work on the project was "lazy" and "pathetic." Other students in the class saw Respondent's conduct and heard her comments to E.J. E.J. testified, credibly and persuasively, that he was embarrassed and hurt by Respondent's comments, and that he went back to his desk in tears. The credible evidence establishes that after seeing E.J.'s reaction to her comments, Respondent called E.J. outside of the classroom and apologized. Respondent testified, credibly, that she felt "terrible" about making E.J. cry, and that she had made the comments because she was frustrated with the quality of the students' work on the project. E.J.'s father, Jermaine Jones, who had picked him up from school on the day of the incident, confirmed that E.J. was upset by Respondent's comments on his project. Jones immediately set up a meeting with Assistant Principal Guzman and Respondent for the following day. At that meeting, Respondent apologized to E.J.'s parents and said she was having a stressful day when she made the comments to E.J. According to Jones, the incident made E.J.—who normally is quiet— further withdrawn, and he became, in Jones's words, "a little depressed." According to Jones, following the incident, E.J. did not want to go to Respondent's class. Other student witnesses testified at the final hearing, credibly and consistently, that they saw and heard Respondent's comments directed at E.J., and that E.J. was upset by her comments and started to cry. Another student, J.P., testified that he had been unable to complete the project for Respondent's class because his grandfather was ill and had been hospitalized, and that he and his family had been spending time at the hospital. J.P. took a note from his mother, to Respondent, on the day the project was due, explaining the reason why J.P. had been unable to complete his project. J.P. testified, credibly, that Respondent told him, in front of the class, that she really did not care about the note, and if he did not turn in the completed project by the following day, he would receive a grade of "zero." J.P. credibly testified that other students in the class heard Respondent's comments to him, and that he was "very shocked" and felt "very embarrassed." J.P. did not turn in a project. Student A.S. testified, credibly, that Respondent told him that his work on the project was unacceptable and "pathetic." Respondent made these comments in front of the entire class. A.S. testified, credibly, that he felt "very embarrassed and upset." He testified, credibly, that Respondent did not apologize to him. Respondent testified on her own behalf. She acknowledged calling E.J.'s work "lazy" and "pathetic," but testified that she had not intended to hurt his feelings, and when she realized that she had, she "felt terrible about it." She acknowledged that she has "a deep voice, and I come off harsher than I mean to." She called E.J. outside to explain that she had not intended to hurt his feelings, and there would be other opportunities to make up the bad grade he received on the project. She testified that as a result of their talk, E.J. calmed down, and that she did not have any further issues with him in class. She confirmed that on the day following the incident with E.J., she met with E.J.'s parents to discuss the incident. She testified that the meeting was "civil," and that she left the meeting feeling like "it was taken care of." Regarding the incident with J.P., Respondent testified that the students had two weeks in which to complete the project, and that when J.P. approached her with the note regarding his grandfather's illness, she told him to turn in, the following day, what he had completed to that point. She confirmed that J.P. did not turn in a project. She also testified that she did not hear from J.P.'s mother regarding the project. Regarding student A.S., Respondent testified that she did not call his work "pathetic," and that, given E.J.'s reaction, she would not have used that word again.4 Respondent also presented the testimony of K.K., who also had been a 4 Respondent acknowledged that the alleged incidents with E.J., J.P., and A.S. involved the same project, and that E.J. and A.S. had turned the project in on the same day. Thus, the undersigned questions whether Respondent would have had sufficient time to reflect on the effect that the word "pathetic" had on E.J., such that she would not have used that word in speaking with A.S. on the same day. student in Respondent's eighth grade history class in the 2018-2019 school year. K.K. testified that Respondent discussed E.J.'s paper with the class because it was a good paper, and that she did not see anyone cry in Respondent's class. She also testified that Respondent did not speak in negative terms about anyone's project in front of the class. However, K.K.'s testimony and written statement are directly contradicted by the testimony of four other students, as well as by E.J.'s father and Respondent herself, who admitted having called E.J.'s work on the project "lazy" and "pathetic" in front of the class. Accordingly, K.K.'s testimony and statement are not deemed credible. Respondent has been a teacher for 17 years. She testified that her educator's certificate has never been subjected to discipline, and no evidence was presented showing that disciplinary action has ever been taken against her educator's certificate. Findings of Ultimate Fact Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint. Whether particular conduct constitutes a violation of the applicable statutes and rules is a factual question to be decided in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Whether specific conduct constitutes a deviation from the required standard is an ultimate finding of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Rule 6A-10.081(2)(a)1., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to make reasonable effort to protect a student from conditions harmful to learning and to the student's mental health. It is determined that by disparaging E.J.'s work in front of the entire class—which caused him to suffer distress, withdraw, and avoid going to Respondent's class—Respondent violated this rule. Rule 6A-10.081(2)(a)5., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to avoid intentionally exposing a student to unnecessary embarrassment or disparagement. As found above, Respondent intentionally engaged in conduct that resulted in unnecessary embarrassment to students E.J., J.P., and A.S. Accordingly, it is determined that Respondent violated this rule. By violating the Principles of Professional Conduct for the Education Profession in Florida, Respondent violated section 1012.795(1)(j).
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Way, Suite 200 Wellington, Florida 33414-8594 1 All references to chapter 120 are to the 2020 version.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order placing Respondent's educator's certificate on probation for a period of one year from the date of the Final Order. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Diane Tirado 3502 Southwest Vollmer Street Port St. Lucie, Florida 34953 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent holds Florida teaching certificate 190841, covering the areas of elementary education and reading, which is valid through June 30, 1993. The Respondent has applied for renewal of her teaching certificate, and her renewal application is being held pending a resolution of this matter. At all times pertinent hereto, the Respondent was employed as a teacher at Seminole Middle School in the Pinellas County School District. On or about August 19, 1979, the Respondent was arrested in Sylva, North Carolina, and charged with driving while intoxicated. On or about December 20, 1979, the Respondent was convicted and her driver license was revoked for 12 months. The Respondent submitted an Application for Teacher's Certificate to the Department of Education, signed and notarized on September 7, 1982. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on March 2, 1983. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979. The Respondent submitted an Application for Extension of Certificate to the Department of Education, signed and notarized on March 1, 1984. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had convicted of driving while intoxicated in 1979. On or about February 26, 1985, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests and refused to submit to a breathalyzer test. The Respondent was arrested and charged with driving while intoxicated. On or about April 29, 1985, the Respondent entered a plea of nolo contendere in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 12 months probation. The court further ordered the Respondent to pay a $500.00 fine, enroll in a DUI school, and revoked the Respondent's driver license for six months. On or about October 30, 1986, a Madeira Beach Police officer observed the Respondent driving her vehicle in an erratic manner. The Respondent failed several roadside sobriety tests. The Respondent's blood alcohol level was found to be in excess of the legal limit. The Respondent was arrested and charged with driving under the influence. On or about March 6, 1987, the Respondent entered a plea of guilty in the Pinellas County Court to the charge of driving under the influence. The court adjudicated the Respondent guilty and sentenced her to serve 10 days in the jail, to be served in the "Weekend/Daywatch Program", to be followed by one year of probation. The court further ordered the Respondent to enroll in DUI school, attend Alcoholics Anonymous meetings, and revoked the Respondent's driver license for 10 years. The Respondent submitted an Application for Extension of Certificate and Application for Addition and/or Upgrade to the Department of Education, signed and notarized on June 23, 1987. The applications each included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations? In her sworn response to each question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Educator's Certificate to the Department of Education, signed and notarized on June 13, 1988. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent answered "No." The Respondent's answer was false, in that the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. The Respondent submitted an Application for Name Change and/or Duplicate Certificate to the Department of Education, signed and notarized on February 24, 1989. The application included the question, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges pending against you other than minor traffic violations?" In her sworn response to the question, the Respondent failed to acknowledge that she had been convicted of driving while intoxicated in 1979, and driving under the influence in 1985 and 1987. On or about January 5, 1993, the Respondent was observed driving a vehicle in Pinellas County, Florida while her driver license was revoked. The Respondent was arrested and charged with driving with a revoked license. On or about February 24, 1993, the Respondent entered a plead of guilty to the charge of driving with a revoked license in Pinellas County Court. The court adjudicated her guilty and ordered her to pay $500.00 in fines and court costs. The Respondent has been an effective classroom teacher for 36 years, mostly teaching sixth grade. The Respondent's evidence was that she resorted to alcohol in response to three successive traumatic events in her life: (1) the death of her husband in 1976, which required her to become independent and the sole parent of her son and four daughters and to return to graduate school to enable her to become the sole support for her family; (2) the murder of her son in 1982; and (3) the cancer death of her mother in 1986. Despite her alcohol problem, the Respondent was able to be an effective school teacher through the years and did not allow her personal problems to seriously adversely affect her work. Her last alcohol-related incident was in October, 1986. The Respondent's principal from approximately 1987 through 1992, a man named Bill Mock, had a well-deserved reputation for administering the Respondent's school through intimidation and threat of punishment. Since applications for teacher certificates routinely were processed through the school administration offices, the Respondent was afraid that the principal would learn of her DUI arrests and convictions from reading the Respondent's teacher certificate applications and that he would fire her or impose conditions on her continued employment at the school that would be intolerable for her. In order to protect her job and livelihood, and ultimately her family, the Respondent rationalized to herself that it was not necessary to disclose those arrests and convictions on her teacher certificate applications. When Mock retired at the end of the 1992/1993 school year, the Respondent reported her violations to her new school principal, and on or about March 31, 1993, received a written reprimand, but no suspension or dismissal, for her failure to acknowledge her arrests to the Department of Education. The Respondent has continued to be an effective middle school teacher. The Respondent's arrest and conviction for driving with a revoked driver license may have been "set up." Her ride to school cancelled at the last minute, leaving the Respondent without enough time to walk. She drove herself straight to school, and there was a policeman waiting for her in the school parking lot at the end of the school day. Otherwise, she did not drive with a revoked driver license. The Respondent's driver license is revoked until March, 1997, but she is eligible for a work permit upon completion of a driver education class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent guilty as charged and suspending her teacher certificate for one year, to be served beginning at the end of the current school year. RECOMMENDED this 17th day of August, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of August, 1994. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 (Copies furnished, continued) Karen B. Wilde Executive Director The Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
