The Issue The issue is whether Petitioner has just cause to terminate Respondent’s employment for gross insubordination, deficient performance, and conduct unbecoming a school board employee.
Findings Of Fact Petitioner employed Respondent continuously from December 6, 1993, through her termination on January 12, 2000. During her entire term of employment, Respondent was employed as a Secretary II. Respondent has a bachelor of science degree in marketing and business from Liberty University in Virginia. Prior to her employment with Petitioner, Respondent had worked as a secretary, including at Florida National Bank and, while living out-of- state, First Pennsylvania Bank. Respondent described her work with Petitioner as enjoyable. She testified that it involved word processing, answering the telephones, and filing. Respondent’s initial assignment was to provide clerical support for exceptional student education. This work required, among other things, considerable speaking on the telephone to coordinate the work of district-office workers with the various schools that they served and typing of school psychological reports concerning students. Repeatedly, Respondent demonstrated problems with accurate and timely typing of school psychological reports, declined to take school-related telephone calls from the switchboard, and reported to work late. When her supervisor conducted an informal conference, Respondent explained that she was often late to work due to a conflicting school schedule of her child, so the supervisor agreed to start Respondent’s workday one-half hour later. When Respondent’s tardiness did not improve, the supervisor had a formal conference for the record (CFR). At the CFR, which took place on February 27, 1995, the supervisor warned Respondent that she must report to work on time and do her job while at work. During this period, Respondent would be late 10-15 times within a 20-day pay period. These occasions of tardiness were substantial, not a couple of minutes, but 30-40 minutes. Even after the supervisor postponed Respondent’s starting time, Respondent continued to report to work late. During this period, Respondent resisted answering the phone and typing. The supervisor had one primary typist, whose typing speed was considerably better than the typing speed of the other secretaries, so the supervisor directed her to do nothing but type school psychological reports. The supervisor directed the other three or four secretaries, of whom Respondent was one, to type school psychological reports when time permitted and to answer the telephone to assist district-office field workers, school personnel, and parents. Respondent resisted this dual assignment. The supervisor could not recall having another CFR for any other employees during the period that she supervised Respondent. Shortly after the February 27 CFR, Respondent’s supervisor transferred to a different area and did not have further contact with Respondent. Respondent’s new supervisor also had problems with Respondent’s job performance. On June 23, 1998, the supervisor completed a written evaluation of Respondent’s job performance and rated her unsatisfactory in knowledge (specifically, ability to communicate effectively) and interpersonal skills (specifically, positive relationship with the public and harmonious relationship with the staff). The overall performance rating was unsatisfactory with the following note: “Additional opportunities will be provided to Annet to improve her interpersonal skills that interfere with the day-to-day operations of the office. If not successful, stronger measures will be taken.” Protesting the inaccuracy of the evaluation, Respondent refused to sign the form. The new supervisor had observed Respondent’s communications with parents on the telephone and staff in the office. Respondent was often rude with parents, so the supervisor talked to her about how to answer the telephone, giving her suggestions for improvement. Respondent’s relationship with her coworkers suffered from her disruptive behaviors, such as loud singing and talking. At one point, Respondent’s relationship with one coworker had so deteriorated that it became necessary for her supervisor, in September 1998, to direct Respondent to change desks. However, when directed to change desks, Respondent refused, forcing her supervisor to reduce the directive to writing. About four months later, to give Respondent a fresh start elsewhere, her supervisor facilitated Respondent’s transfer to a school that served as a center for exceptional student education. The supervisor did not fill the vacancy in the district office created by the transfer, nor did she fill an existing vacancy at the school; essentially, the supervisor merely transferred the physical location of Respondent’s job position. By memorandum dated January 12, 1999, Respondent’s supervisor advised Respondent of the transfer and her new duties, which again included typing school psychological reports. The memorandum also informed Respondent that her workday hours would remain 8:00 a.m. to 4:30 p.m. with lunch from 12:30 p.m. to 1:30 p.m. and breaks starting at 10:15 a.m. and 3:00 p.m. About one week after Respondent reported to the school for her new assignment, the principal gave her a written schedule showing Respondent’s hours as 8:00 a.m. to 4:30 p.m. with one hour for lunch and 15-minute breaks starting at 10:00 a.m. and 2:30 p.m. The schedule also assigned tasks to be performed during different times of the day. These tasks included typing, filing, telephone work, and assisting parents, staff, and students. These tasks included one block of two hours and fifteen minutes devoted to performing district-office tasks, but while remaining at the school to which Respondent had just been reassigned. Respondent was dissatisfied with her new assignment, preferring to work at the district office where she had been assigned. Respondent’s new supervisor, the school principal, noticed immediately that Respondent had trouble interacting appropriately with staff and parents, typing school psychological reports accurately, and answering the telephone when it rang. The principal corrected Respondent’s style of answering the telephone, informing her that she was to identify the school and herself, offer assistance, and offer to take a message if the person being called is not available. Instead, the principal heard Respondent repeatedly deal with callers brusquely, such as by stating, “They’re not in the office. Call back later.” While at the switchboard, Respondent repeatedly sent callers to the wrong extension. On April 15, 1999, the principal had a CFR with Respondent. The next day, the principal gave Respondent a written memorandum reflecting their discussions. The memorandum identifies nine specific areas of Respondent’s job performance, to which the principal expressed serious concerns. For each of these areas, the memorandum supplies a detailed list of behaviors and actions to do and not to do. For example, the form directs Respondent to speak with others pleasantly, politely, and professionally--not argumentatively, sarcastically, or caustically. Another item directs Respondent to spell check and proof read all typed materials--not submit uncorrected typed materials. Another item directs Respondent to remain engaged in work while at work--not doodle, read magazines, or make personal telephone calls while at work. The memorandum documents informal conversations on February 4 and March 17 between the principal and Respondent in which the principal had already counseled Respondent about her rudeness and idleness, including one conversation in which the principal noted, “You had to be told in excruciating detail how to perform the most mundane of tasks.” The memorandum notes that Respondent had characterized the principal’s assessment of her work as unfair, and the principal had warned her that a failure to improve her job performance and her relationships with staff and parents would jeopardize her future employment with Petitioner. The memorandum notes that the CFR of the preceding day had ended with the comment from Respondent: “If you need to let off steam you need to find another way to do it. This is ridiculous.” During this period of time, Respondent had informed the principal that it was not Respondent’s job to proofread the material that she typed and, thus, she would not spell check these documents. On at least one occasion, Respondent mistyped a form, confusing the specific learning disability and severely emotionally disturbed classifications of exceptional students. During one month, every single item that Respondent typed had to be returned to her for corrections--at least once and sometimes more than once. Respondent resisted the principal’s criticisms by telling the principal to "get a life" and that the principal did not know what she was doing. In front of one parent, Respondent said that the mother should be doing a better job with the child. Many of Respondent’s statements of these types to supervisors, coworkers, and parents were made in the presence of students. The principal found Respondent repeatedly not working or reading a magazine when she had work to do. In response, Respondent would assert that she had not been told to do anything, and the principal each time reminded her that there was always filing to be done. At least four times over two months, the principal found Respondent on a personal call while parents or students were waiting for her to take care of their needs. One time, when the principal asked her if she could break off the call and take care of the people waiting, Respondent merely shrugged her shoulders and rolled her eyes, not responding whether the call was an emergency and leaving the principal to deal with the waiting parent. One morning, the principal walked into the office and observed the registrar working with the parent and the telephone start to ring. The registrar asked Respondent to answer the phone, but she did not. After the third ring, the principal answered the phone. Another time, the registrar was busy at the counter with a parent when she was summoned to the telephone. After a few moments, the registrar put the caller on hold and asked Respondent to remove an item from the mail because the mail room attendant was approaching. Refusing to comply with the request, Respondent told the registrar, “I didn’t put it in there. I’m not taking it out.” A distinct act of insubordination took place after the April 15 CFR and April 16 memorandum. On this morning, the principal entered the office and found the staff extremely busy, such as obtaining materials for teachers. Respondent was issuing admission slips for tardy arrivals. The telephone was ringing, and staff was juggling their other activities as best they could while still answering the phone. However, Respondent, although seated next to the switchboard, was not answering the phone at all. When the principal asked her to answer it, Respondent loudly replied, “Do you think I can do two things at once?” The whole office became quiet, as a teacher answered the telephone. The principal directed Respondent to start answering the phone, but four more calls came in, and Respondent refused to answer them. More memoranda followed. On May 25, 1999, the principal provided Respondent a detailed memorandum with an evaluation. The memorandum covers the same items already discussed. The evaluation is unsatisfactory in every major category. A memorandum dated May 27, 1999, accompanying a CFR of the same date, discusses, among other things, the telephone incident described in the preceding paragraph and reemphasizes that Respondent is the first person responsible for answering the telephone. Another CFR took place on June 9 with another memorandum dated the next day at which the same issues are discussed. The principal provided Respondent with a detailed list of recorded deficiencies, prescriptive means by which to correct them, recommended resources, and deadlines. The principal extended the deadlines for performing fairly undemanding tasks, but Respondent declined to perform them. At the start of the 1999-2000 school year, Respondent routinely came to work late. She was late every day in September, rarely arriving less than 30 minutes late and once over one hour late. On Monday, October 4, 1999, the principal provided Respondent with a memorandum documenting the days and extent of her tardy arrivals. The memorandum documents a discussion between the principal and Respondent on the preceding Friday, October 1. The memorandum notes that Respondent claimed to have changed her schedule, on her own authority, and the principal had informed her that the principal, not Respondent, had the sole authority to set her schedule. The memorandum documents that the principal had suggested that Respondent follow established procedure to change her starting time, but, until and unless the principal changed the time, Respondent was to report to work at 8:00 a.m., as she was always required to have done, on the following Monday, October 4. The memorandum notes that Respondent responded that she had to take her daughter to school and would not be reporting to work at 8:00 a.m. The memorandum documents that, on the morning of Monday, October 4, Respondent called in at 8:40 a.m. saying she had had car trouble and would be late; she arrived at 9:15 a.m. On October 5, the principal conducted another CFR and issued another memorandum, dated October 5. Respondent did not report to the CFR when directed, and the principal had to have her assistant principal get Respondent. After initially declining to attend, Respondent appeared at the CFR, 15 minutes late. When the principal asked Respondent to take a seat, she replied that she would prefer to stand, and did so. Disputing the date set for the CFR, Respondent stated that she would not remain. At the conference, the principal read Respondent the following definition of gross insubordination or willful neglect of duties: “a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.” Respondent unsuccessfully attempted to change her schedule to postpone her starting time to 8:30 a.m. Respondent was late to work every day from September to January. Each day, she would leave work at 3:40 p.m. to pick up her daughter and return to work late, usually at 4:05 or 4:10 p.m. However, when the principal offered to shorten her day by one-half hour, so as to allow her to leave work one-half hour earlier, Respondent refused to shorten her lunch. On October 6, 1999, the principal issued Respondent a reprimand for failing to finish her prescriptive activities within the extended deadlines. Giving her until October 26 to complete them, the reprimand warns: “Failure to comply with this directive will constitute gross insubordination and may lead to further disciplinary action.” On October 7, the principal sent her assistant principal to summon Respondent to the principal’s office to provide Respondent with the above-described documents. Respondent refused to come. The principal approached Respondent and asked her to come to the principal’s office, but Respondent replied that she had no intention of reporting to the principal’s office ever again and the principal was harassing her. The next day, Respondent did not report to work. When Respondent failed to meet the October 26 deadline, the principal issued a memorandum, dated October 28, citing her for gross insubordination. This memorandum effectively marked the end of the principal’s involvement with Respondent. Overall, Respondent’s repeated insubordination and carelessness had undermined the morale among staff at the school. The principal found it hard to assign work to other secretaries, who rightly felt that they were carrying Respondent’s load. The atmosphere in the office became strained. The principal could not possibly have done anything more to help Respondent do her work. It was not an issue of ability, but of a lack of effort and refusal to make the effort. At one point, Respondent told the principal that she found it demeaning to be told to file and answer the telephone given her high-level skills. Attempts by the district office to conduct CFRs were met by Respondent’s defiance: she did not attend any of the three scheduled meetings. By letter dated January 13, 2000, Petitioner suspended Respondent, effective January 12, 2000, and initiated this proceeding to terminate Respondent’s employment. Respondent is subject to the Contract between Petitioner and the United Teachers of Dade (Contract). Contract Section 3.D provides that Petitioner may terminate a covered, noninstructional employee, such as Respondent, for “just cause.” Section 3.D defines “just cause” as including: “misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009.” Petitioner has proved that Respondent is guilty of gross insubordination.
Recommendation It is RECOMMENDED that The School Board of Miami-Dade County, Florida enter a final order terminating Respondent’s employment. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of December, 2000. COPIES FURNISHED: Roger C. Cuevas, Superintendent The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue Room 912 Miami, Florida 33132-1308 Timothy A. Pease The School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez 250 Bird Road, Suite 302 Coral Gables, Florida 33146
Findings Of Fact At all times material hereto Respondent, Edgar Lopez, was a fifteen year old student who was assigned to Henry Filer Middle School during the school year of 1987-88 and to Jose Marti Middle School during the school year 1988-89. When a teacher in the Dade County School System wishes to report or refer a discipline problem in the classroom, the teacher completes and submits to the assistant principal a Student Case Management form, commonly referred to as a SCAM. During the 1987-88 school year, at least nine SCAMs were filed concerning Respondent and addressed disruptive behavior problems of tardiness, disobedience, and failure to cooperate. Respondent, Respondent's parent or both were consulted concerning the nine reports; however the behavior did not improve. Then, in school year 1988-89, Respondent continued to have excessive absences, and the visiting teacher consulted Respondent's mother about Respondent's attendance. On January 31, 1989, Respondent was found with two harmful knives at school and during school hours. Possession of knives is a Group 5 offense of the student code of conduct of the Dade County School Board which is punishable by expulsion. Respondent exhibited disruptive behavior and was consulted about his problems but failed to improve. Further, Respondent committed an offense which warrants expulsion. Accordingly, Respondent's assignment to the opportunity school is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 5th day of July, 1989 in Tallahassee, Florida. JANE C. HAYMAN 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 5th day of July, 1989. COPIES FURNISHED: George dePozsgay, Esquire 2950 S.W. 27th Avenue Suite 210 Miami, Florida 33133 Ramonita Gonzalez Lopez, 10,000 Northwest 80th Court Apartment 2127 Hialeah Gardens, Florida 33016 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues in this case are whether Petitioner should discharge Respondent from her employment because of misconduct, gross insubordination, and willful neglect of duty that impaired Respondent's effectiveness as Petitioner's employee.
Findings Of Fact Petitioner is the School Board of St. Johns County, Florida. Until September 12, 1996, Petitioner employed Respondent as a non-instructional employee. Respondent was a janitorial custodian. Petitioner requested numerous employees, including Respondent and eight other custodians, to work on Saturday, August 24, 1996, at Nease High School. The purpose was to prepare the campus for the upcoming school year. Mr. Jody Hunter, the coordinator of school-based maintenance and custodial services, asked all nine custodians, including Respondent, to stop what they were doing and to immediately remove all of the empty boxes from the classrooms. The boxes needed to be outside the buildings so that they could be collected for disposal and so that furniture could be set up in each classroom. The crews in charge of collecting and disposing of the boxes and those in charge of furniture set-up were on precise schedules. The other maintenance tasks that needed to be performed by the custodians, including Respondent, could be performed at other times. All of the custodians except Respondent complied with the instructions of Mr. Hunter. Mr. Hunter repeated the instructions to Respondent several times. Respondent insisted on working in accordance with her own schedule and priorities. After a reasonable time, Mr. Hunter inspected the area for which Respondent was responsible. He found boxes in the area and saw Respondent walking down the hallway with a bag and supplies in her hand. Mr. Hunter asked Respondent why she had not complied with his instructions. She stated that she did not like to start another job before she finished the first job. Mr. Hunter repeated the need and the urgency of getting the boxes out of the area so that the other crews could stay on schedule. Respondent stated that she did not have to listen to Mr. Hunter because it was a Saturday and because he was not her supervisor. Respondent never removed the boxes in her area. Mr. Hunter had several conversations with Respondent regarding her refusal to follow his instructions. Respondent became very loud and obstreperous during at least one of those conversations. Other employees heard Respondent from different areas of the campus. Mr. Hunter conducted himself professionally during each of these conversations. During one of the conversations, Mr. Hunter requested Ms. Alice Powell, a teacher, to witness a portion of the conversation. Respondent left work before completing her assigned duties. She refused to answer questions from Mr. Hunter as to where she was going or if she would return. Respondent returned to the campus later in the day with her daughter. Respondent's daughter acted as an interpreter. Through her daughter, Respondent asked Mr. Hunter to write down everything he had said to Respondent during the day. When Mr. Hunter refused, Respondent threatened to sue Mr. Hunter for "violating her rights." Mr. Hunter asked Respondent to leave the premises. Respondent refused. Respondent stated that Mr. Hunter had never dealt with Puerto Ricans before and that they take care of their own problems. Mr. Hunter asked Respondent if she was threatening him, and Respondent said, "yes." Mr. Hunter telephoned Mr. Bill Mignon, the principal of the school. Mr. Mignon spoke to Respondent by telephone. Mr. Mignon asked Respondent to leave the campus and to discuss the matter in his office on Monday. Respondent left the campus but did not keep her appointment on Monday. Petitioner suspended Respondent with pay pending an investigation of the matter. Mr. Mignon and Mr. Clayton Wilcox, Petitioner's director of personnel, conducted an investigation into the matter. They interviewed witnesses, including Respondent, and reviewed written statements. On September 12, 1996, the Board voted to suspend Respondent without pay. Respondent now has a full-time position with another employer. Respondent was previously disciplined by Petitioner. In April, 1995, Petitioner verbally reprimanded Respondent for misusing time cards by leaving work and having another employee punch Respondent's time card at a later time. In May, 1996, Petitioner gave Respondent a written reprimand for taking excessive lunch breaks. In May, 1996, Petitioner issued a memorandum to Respondent for failing to comply with requirements for excused absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of gross insubordination and willful neglect of duty and terminating Respondent's employment. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997. COPIES FURNISHED: Dr. Hugh Balboni, Superintendent St. Johns County School Board 40 Orange Street St. Augustine, Florida 32084 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dennis K. Bayer, Esquire Attorney at Law 306 South Oceanshore Boulevard (A1A) Post Office Box 1505 Flagler Beach, Florida 32136 Anna I. Oquendo, pro se 21 Madeore Street St. Augustine, Florida 32084
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s educator?s certificate, and if so, the nature of the sanctions.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is charged with the duty to investigate and take disciplinary action against individuals who hold a Florida educator's certificate and are alleged to have violated section 1012.795, Florida Statutes, and the Department?s rules establishing standards of teacher conduct. Respondent holds an educator?s certificate, No. 726067, covering the areas of biology and general science, issued by the Florida Department of Education. At all times material to this proceeding, Respondent was employed as a science teacher at Callahan Middle School in Nassau County, Florida. Respondent was first employed by the Nassau County School Board in 1995. He taught special education courses for his first two years, and “at-risk” classes for the following two years. Since then he has taught middle school science. In addition to his normal teaching duties, Respondent has coached the middle school football team and the boys and girls track teams for 11 years. Respondent is a capable and competent teacher, and has a good reputation. Respondent has not previously been the subject of a disciplinary proceeding. On October 7, 2010, at the end of the school day, Respondent went to the Fred?s discount department store located at 22 South 8th Street, Fernandina Beach, Florida. The purpose of the visit was to purchase reading glasses to replace a pair that was broken that day at the school. Respondent testified that he entered Fred?s and went immediately to the glasses display. Since the glasses were inexpensive -- $4.95 a pair -- he decided to buy 2 pairs. After selecting the glasses, Respondent noticed a display of candy. As a reward for students scoring 90 or above on an assignment, Respondent places them in the “smarty party” and allows them to take a piece of candy from a supply he keeps. He was low on candy, and decided to buy some to replenish his stock. He picked up three large bags of candy, and given that he was running out of space in his hands, placed the glasses in his left pants pocket. On his way to the checkout line, Respondent noticed that Fred?s had a sale on dog food. He picked up a bag of dog food, slung it on his shoulder, and proceeded to the checkout line. When he reached the checkout line, Respondent testified that he forgot about the glasses in his pocket, and proceeded to pay for the candy and dog food with a credit card. The candy was placed in a plastic “T-sack.” He exited the store with his plastic bag and dog food, whereupon an alarm sounded. Not thinking the alarm was a result of his action, Respondent continued towards his car. As he was about halfway to his car, the cashier came to the door and said “Hey honey, that might be you. That sometimes happens with dog food.” Respondent testified that he turned to walk back in and at that time noticed Mr. Esckelson, who was returning from assisting a customer in the parking lot, walking about four steps in front of Respondent. As he was about halfway back to the store, Respondent testified that he remembered the glasses in his pocket, and that he had forgotten to pay for them. He knew that Fred?s had a reputation for implementing an aggressive, “hard-core” policy against shoplifters, and in a split-second and ill-conceived decision, decided to toss the glasses into a nearby display of mums. In his haste, he thought that he had grabbed both pairs of glasses from his pocket and tossed them into the flowers. However, he managed to grab only one pair, while the second pair remained in his pocket without his knowledge. Respondent testified that his action was observed by Mr. Esckelson, despite his being a few steps in front of Respondent, who then said “OK, get in here.” Mr. Esckelson asked what Respondent threw, and he replied that he threw glasses. Respondent was asked to stand by the register, and Mr. Esckelson advised the cashier to call the police. Respondent testified that he spoke with Mr. Esckelson, and asked, “is there any way to make this right?” He told Mr. Esckelson that he had taken the glasses out of the store by accident, and wanted to pay for them. Respondent?s intent in making that statement was to offer payment, and was not an attempt to bribe Mr. Esckelson. The offer was, in any event, declined. Although Respondent had his Nassau County School District employee badge attached to his belt on the right side of his pants, Respondent testified that there was no discussion regarding his employment as a teacher. When the police arrived, Respondent was taken into custody almost immediately. The two officers at the scene arrived in separate cars. Officer Kopinski, who was first on the scene, had separate conversations with Respondent and Mr. Esckelson. Officer Kozak arrived sometime after and took control of the situation since Fred?s was in his zone. Officer Kopinski, who testified at the hearing, had little independent recollection of the events, his testimony being based almost exclusively on Office Kozak?s arrest report to which he referred frequently during the hearing to refresh his recollection. The arrest report was not entered in evidence by either party. Officer Kopinski could not recall whether Mr. Esckelson provided him with the pair of glasses at the time of his placing Respondent in custody. Respondent testified that when he was being placed in handcuffs, the officer, having noticed his school district identification badge, asked if Respondent was a school district employee. Respondent replied that he was a school teacher, and that the arrest would be a bad situation for him. Respondent testified that as he was being escorted from the store to the police car, Mr. Esckelson was searching in the display of flowers for the glasses he had thrown. Respondent told Mr. Esckelson where he had thrown the glasses, at which time he was able to locate and retrieve them. Prior to his being placed in the police car for transport, Respondent was searched. At that time, Officer Kopinski discovered the second pair of glasses in Respondent?s pants pocket, and returned them to Mr. Esckelson. Officer Kopinski testified, based on the police report, that Respondent also had $12.20 and several credit cards in his possession. Although Officer Kopinski had no independent recollection of the money and cards, and the police report is not in evidence, Respondent did not dispute that he had that amount in his possession. Mr. Esckelson?s testimony differed in several respects from that of Respondent. Mr. Esckelson testified that at the time of the incident, he was in the parking lot returning a train of shopping carts to the store. As Respondent was exiting the store, Mr. Esckelson was approximately 15 feet from the door heading in. When the alarm went off, Mr. Esckelson testified that Respondent was pushing the door open with his left hand, and as soon as he opened the door, he removed an object from his right pants pocket, later found to be a pair of glasses, and tossed it into the display of mums. Mr. Esckelson asked Respondent to return to the store, and immediately retrieved the glasses from the display. He asked Respondent to stand by register 2, which was subject to video surveillance, and signaled the clerk to call the police. Although Mr. Esckelson indicated that he said nothing to Respondent, he testified that Respondent asked if there was “anything we can do to take care of this now?” and later stated that “you can?t arrest me, I?m a teacher.” Mr. Esckelson testified that he advised the police officers of Respondent?s statements. Officer Kopinski could not corroborate either of those statements. Mr. Esckelson could not recall whether Respondent was carrying a large bag of dog food. He recalled asking the clerk what Respondent had purchased, but could not remember what the clerk told him. However, there are no sensor tags on dog food that would have caused the alarm to trigger. Mr. Esckelson confirmed that Fred?s has a policy of discouraging shoplifting, and will always prosecute when shoplifters are caught. Over the years that he worked for Fred?s, Mr. Esckelson?s involvement with shoplifters, though not routine, was still relatively frequent. Despite the differences in their descriptions of the events, differences which for the most part were as to peripheral matters, both Respondent and Mr. Esckelson appeared to be forthright and credible. As to the material elements of the event, their testimony was generally consistent. However, Mr. Esckelson had no involvement in Respondent?s matter from the time of the incident until he received a subpoena on August 11, 2011. As was the case with Officer Kopinski, who had almost no independent recollection of the incident, it stands to reason that Mr. Esckelson?s memory of the incident would blur over time, particularly since he was involved with recurring incidents of a similar nature in the intervening period. Respondent on the other hand would be expected to retain a more vivid memory of the incident given its singular affect on him. The differences in Respondent?s and Mr. Esckelson?s testimony do little to affect the outcome of this case. For example, whether Mr. Esckelson was returning carts to the store or returning to the store from assisting a customer, whether the glasses were found before or after the police arrived, and whether the glasses were removed from Respondent?s left or right pocket have little to do with the salient facts of the case. Those and other similarly insignificant differences in the testimony were more likely due to the passage of time than to an attempt to obfuscate the facts of the incident. However, the testimony of Respondent is found to be a more accurate statement of the facts of the incident. At the time of the incident, there were customers and employees in Fred?s. Respondent was acquainted with several of the store clerks from previous times at which he shopped at Fred?s. There was no evidence offered to indicate that Respondent knew any one clerk from another other than from a purely employee/customer standpoint, nor was there any evidence offered that any customer or employee who witnessed the events knew Respondent, or was aware that he was a school teacher. Within a short period after his arrest, Respondent called John Ruis, the Superintendant of Schools for Nassau County, to advise him of the situation. His first calls were over the weekend, at which time he left messages. By the time Respondent spoke with Mr. Ruis, Mr. Ruis had been notified of the arrest, having received a computer notification. Respondent asked to meet with Mr. Ruis to provide his side of the story. When they met, Respondent appeared to be humiliated, humbled, and embarrassed. Respondent advised Mr. Ruis of all pertinent facts of the incident, including the fact that he tossed the glasses into the flower display. He asserted that his failure to pay for the glasses was inadvertent. Mr. Ruis informed the principal of Callahan Middle School and the school district?s personnel director of the situation involving Respondent. Mr. Ruis did not know if any other employee of the Nassau County School District knew of the incident. It is not the practice of Mr. Ruis, as Superintendant, to remove a teacher from the classroom in an alleged disciplinary matter unless the teacher presents a threat of harm to the students. When there is no perceived harm to students, the district allows the legal system to take its course. Mr. Ruis determined that Respondent presented no threat to any student, and he was therefore not removed. Respondent has taught continuously since the incident with no subsequent indication of any problem. As the judicial resolution of the incident, Respondent entered into a deferred prosecution agreement, the precise terms of which were not disclosed. The Petit Theft charge was subsequently nolle prossed, and the record of Respondent?s arrest has since been expunged. The conduct alleged was not known to anyone outside of the arresting officers, the Superintendant, the principal of Callahan Middle School, and the personnel director. Although there were customers and employees of Fred?s in the store at the time of Respondent?s arrest, there was no evidence that any of them knew Respondent, or knew that he was a Nassau County School District employee. There was no evidence that any student, parent, or other teacher had any knowledge of Respondent?s arrest. There was no media coverage of the incident, and no complaints filed with the school district regarding Respondent. Respondent?s conduct was not, in any sense of the term, “notorious.” Respondent denied any intent to steal the glasses. The testimony as to how the glasses came to be in his pocket upon buying the candy and dog food is plausible. Other than his split-second decision to toss the glasses into the flower display -- a decision that Respondent stated was based upon his knowledge of Fred?s aggressive stance on shoplifting -- there is no direct evidence of intent to steal the glasses. While there is evidence from which one could infer consciousness of guilt from the circumstances of this case, Respondent?s act of tossing the glasses when he realized he had exited the store without paying, under the particular facts and circumstances of this case, does not rise to the level of clear and convincing evidence of Respondent?s intent to shoplift the glasses.
Recommendation Upon consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2011. COPIES FURNISHED: J. David Holder, Esquire J. David Holder, P.A. 40 Grand Flora Way Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 131 North Gadsden Street Tallahassee, Florida 32302 Charles M. Beal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed misconduct in office and violated Miami-Dade School Board Rules, and, if so, whether such conduct constitutes just cause to dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed as an exceptional student education ("ESE") teacher at Olinda Elementary School ("Olinda"), a public school located in Miami-Dade County, Florida, and part of the Miami-Dade Public Schools. At all times pertinent to this proceeding, Respondent's employment was governed by the collective bargaining agreement ("UTD Contract") between Petitioner and the United Teachers of Dade, Petitioner's rules, and Florida law. Applicable Requirements of IDEA and Florida Law The Individuals with Disabilities Education Act ("IDEA") requires, as a condition of receiving federal funding assistance for educating disabled students, that local education agencies (in this case, Petitioner and Olinda) establish and maintain procedures in accordance with the IDEA and state policies and procedures implementing the IDEA, to ensure that students with disabilities are guaranteed certain safeguards regarding the provision of a free appropriate public education ("FAPE"). See 20 U.S.C. § 1415(a); see also 34 C.F.R. § 300.201. Therefore, it is imperative that Petitioner comply with the procedural and substantive requirements of the IDEA and implementing federal regulations, and with Florida Statutes and administrative rules implementing the IDEA in Florida. To this end, Petitioner requires personnel employed by Miami-Dade County Public Schools (the "District") to strictly follow the standards and processes it and the individual schools within the District have established to provide ESE services to disabled students consistent with the IDEA and Florida law. The IEP is a critical component in providing FAPE to disabled students under the IDEA. See 20 U.S.C. § 1402. The IEP is a written statement for a disabled student that, among other things, describes the student's present level of academic achievement and functional performance; sets forth measurable annual goals designed to enable the student to be involved and make progress in the general curriculum; identifies special education, related services, and supplementary aids and services that will be provided to assist the student in obtaining the annual goals; and establishes the means by which the student's progress will be measured. See Fla. Admin. Code R. 6A-6.03028(3)(h); 34 C.F.R. § 300.320. The IEP for each student must be developed, reviewed, and revised in accordance with Florida Administrative Code rules1/ that establish the composition of the IEP team, the respective roles of its members, the procedures for conducting IEP team meetings, and the substantive requirements for the IEP. Creation and Maintenance of IEPs at Olinda Respondent began teaching at Olinda in September 2010. Respondent was assigned the responsibility for creating and maintaining IEPs for the third, fourth, and fifth grade ESE students2/ at Olinda for the 2010-2011 school year. IEPs are created at Olinda pursuant to a process established by the school's administration and the local education agency ("LEA") representative,3/ consistent with the IDEA, state law, and District policy. Specifically, ESE teachers are responsible for creating, developing, and maintaining the IEPs for the school's disabled students. As part of this process, the teacher responsible for a particular disabled student notifies the parents and IEP team members4/ regarding the IEP team meeting and schedules the meeting. The meeting is held with as many team members as possible in attendance. The teacher then creates the IEP using the District's Special Education-Electronic Management System ("EMS"). To create the IEP, the teacher logs onto EMS using his or her unique employee identification ("ID") number and unique password. The employee ID number and password are confidential and may only be used to log into EMS by the teacher to which they belong. The teacher creates a draft IEP, which is circulated to each IEP team member who attended the meeting for comment and input. The teacher then revises the draft as appropriate, finalizes the IEP, and obtains the signatures of the team members who attended the meeting. The finalized IEP is to be signed only by the persons who actually participated in the IEP team meeting.5/ Once the IEP is signed by all team members, the teacher faxes it into EMS and it becomes designated as "Final."6/ The teacher responsible for creating the IEP is the only person authorized to fax it into EMS. Once the IEP is Final, a hard copy is to be printed and included in the student's cumulative folder. Once the IEP is "Final," it cannot be changed without going through the established procedures to modify the IEP, including notifying all IEP team members and conducting an IEP meeting. Audit of IEPs at Olinda On or about February 25, 2011, Adrian Montes, the Principal at Olinda, was informed that the parent of an Olinda ESE student had complained to the Florida Department of Education regarding the placement of her child. Montes contacted the parent regarding her concerns. The parent denied having made such a complaint. The student's IEP was soon scheduled for annual review, so Montes decided to attend the IEP meeting. The meeting was conducted on February 28, 2011. At the meeting, Montes noticed Respondent making numerous mistakes regarding creation of the IEP. Concerned about the integrity of the IEP creation process at Olinda, he requested Leticia Fernandez, the school's LEA representative and head of its ESE program, to conduct an audit of Olinda's IEPs. On or about March 1, 2011, Fernandez reported to Montes that three IEPs for students for which Respondent was responsible were missing from the students' cumulative folders, where pursuant to school protocol, they are required to be kept.7/ Montes asked Respondent about the missing IEPs. Respondent provided him with hard copies of the documents the following day. According to Respondent, these copies had been stored in her classroom. Montes compared the hard copies with the electronic versions of the same students' Final IEPs stored in EMS, and noted several discrepancies between the hard copies and the electronic version of the Final IEPs in EMS. Fernandez' audit revealed that school-wide, five IEPs contained discrepancies between the hard copies and the Final electronic versions stored in EMS, and that in some cases the IEPs were missing signatures or appeared to have falsified signatures. All five IEPs belonged to students for which Respondent was responsible. IEPs for which Respondent was Responsible Respondent was responsible for creating and maintaining the IEPs for J.A.B., J.D.H., L.L.E., S.M.M., and C.A.M. The Final IEPs for some of these students contained signatures that did not belong to the person purported to have signed the IEP, and some were not prepared or finalized in accordance with the District's established protocol for creating IEPs. Specifically, with respect to J.A.B., the signature for general education teacher Gabriella Delgadillo appearing on the Final IEP was not hers. With respect to J.D.H., the parent's signature appearing on the Final IEP was not hers. She credibly testified that she did not attend any IEP meetings for her child, would have attended had she been notified, and did not sign the Final IEP. Additionally, Respondent obtained the signatures of general education teacher Charrise Mosley and exceptional education teacher Vickie Dunnom on the IEP even though neither attended an IEP meeting for J.D.H. With respect to L.L.E., the signature on the Final IEP for Gabriella Delgadillo was not hers and she did not attend any IEP meetings for L.L.E. With respect to S.M.M., the signature for Charrise Mosley that appears on the Final IEP was not hers.8/ Respondent also requested and obtained Mosley's signature on the IEP even though Mosley did not attend the IEP meeting for S.M.M. With respect to C.A.M., Gabriella Delgadillo, Vickie Dunnom, guidance counselor Adriana Sanabria, and school psychologist Azadeh Trinidad-Oroujalipour all credibly testified that they had not attended an IEP meeting for C.A.M., and each credibly testified that the signature appearing on the Final IEP was not hers. C.A.M.'s parent also testified that she had never been notified of, and had not attended, any IEP meetings for C.A.M. Charges in Notice of Specific Charges Proven Petitioner's Notice of Specific Charges alleges that Respondent corrupted the IEP creation process in violation of the IDEA, Florida law, and Petitioner's rules, by forging the signatures of certain school personnel on IEPs of students for which she was responsible; asking IEP team members to sign IEPs for students without having attended the IEP meetings for those students; and designating IEPs as "Final" in EMS without having conducted IEP meetings for those students. Respondent testified that she did not forge any signatures on the IEPs and she further claimed that on some of the IEPs, her signature was forged. No witnesses testified that they saw Respondent or anyone else forge signatures on the IEPs. However, Respondent, through her unique confidential employee ID number and password, was the only person who had access to EMS to fax in the finalized IEPs on which the falsified or forged signatures appeared. The circumstantial evidence in this case gives rise to the inference, unless rebutted, that Respondent falsified or forged signatures of IEP team members IEPs in violation of Florida and federal law, as charged in the Notice of Specific Charges.9/ Respondent failed to present credible evidence to rebut this inference. Specifically, Respondent claimed that because the student cumulative files were stored in a cabinet that was not always locked and therefore accessible at times to other school personnel, others had opportunity to forge the IEPs and, in fact, did so. However, her testimony on this point was vague and speculative; she did not present any specific, credible evidence regarding who may have forged the IEPs, or when, why, or how they did so, and her testimony was not corroborated by any other witnesses. Furthermore, whether the cumulative folders were accessible to others, or even whether hard copies of the IEPs in the folders were forged, does not explain or otherwise negate that falsified signatures appeared on the Final IEPs that were faxed into EMS. Accordingly, the undersigned finds that Respondent falsified or forged signatures of IEP team members IEPs in violation of Florida and federal law, as charged in the Notice of Specific Charges. Additionally, the credible evidence establishes that Respondent sought and obtained the signatures of IEP team members who had not attended meetings for the students whose IEPs they were asked to sign. Respondent's actions in doing so were contrary to Olinda's established protocol that only persons attending an IEP meeting for a particular student are to sign that student's IEP. Respondent claimed that she was forced to seek signatures of IEP team members who had not attended the meetings because Montes would not excuse them from class, so they were unable to attend. However, her testimony was not corroborated by any other witnesses, several of whom were IEP team members whose signatures she obtained even though they had not attended IEP team meetings. The undersigned finds Respondent's testimony on this point unpersuasive. The evidence also establishes that Respondent did not conduct IEP meetings for certain students before finalizing those students' IEPs. Specifically, the teachers (other than Respondent) whose names appear on the Final IEPs of L.L.E. and C.A.M. credibly testified that they did not attend any IEP meetings for these students. The parents of these students also credibly testified that they were not notified of, and did not attend, any IEP meetings for their children. Without the teachers and parents comprising the IEP teams for these students in attendance, the IEP team meetings for these students could not have taken place. Respondent did not present any credible evidence that she did, in fact, conduct the IEP meetings for these students. Accordingly, it is determined that Respondent finalized certain students' IEPs without having conducted IEP team meetings for those students, as charged in the Notice of Specific Charges. Findings of Ultimate Fact Petitioner seeks to terminate Respondent's employment as a teacher with Miami-Dade County Public Schools. Pursuant to section 1012.33(1)(a),10/ Petitioner can terminate Respondent only for "just cause." "Just cause" is defined to include, among other things, "misconduct in office." Florida Administrative Code Rule 6A-5.056(3)11/ defines "misconduct in office" as a violation of the Code of Ethics of the Education Profession as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in rule 6B-1.006, which is so serious as to impair the individual's effectiveness in the school system. Petitioner's rules 6Gx-4A-1.21 and 6Gx-4A-1.21 incorporate these standards and make them applicable to District personnel, including instructional personnel. The persuasive evidence establishes that Respondent violated the Code of Ethics of the Education Profession codified in rule 6B-1.001. Her actions in failing to hold or conduct IEP meetings for disabled students in her charge and in falsifying or forging signatures on Final IEPs for these students did not adhere to Florida or federal law regarding the creation and maintenance of IEPs, a key component in the delivery of a free appropriate public education pursuant to disabled students pursuant to the IDEA and Florida law. By her actions, Respondent demonstrated that she did not value the worth and dignity of the students for which she falsified IEPs or failed to hold IEP meetings. She did not pursue the truth and failed to demonstrate devotion to excellence or dedication to the acquisition of knowledge by her students. Further, her actions demonstrate that her primary professional concern was not for her students or the development of their potential. She did not exercise acceptable professional judgment or integrity, and her actions in falsifying the IEPs and failing to hold IEP meetings were unethical. The persuasive evidence also establishes that Respondent violated the Principles of Professional Conduct for the Education Profession, rule 6B-1.006. Specifically, Respondent did not protect her disabled students from conditions harmful to learning, and, in fact, affirmatively engaged in conduct harmful to their learning. She also intentionally suppressed subject matter relevant to her students' academic progress. By failing to follow the procedures and requirements of the IDEA and Florida law, she denied her disabled students' rights regarding the opportunity to obtain a free appropriate public education. She did not maintain honesty in her professional dealings and submitted fraudulent information on documents in connection with her professional activities. The persuasive evidence demonstrates that Respondent's actions also violated Petitioner's rule 6Gx-13-4A-1.21, "Responsibilities and Duties." Specifically, she engaged in conduct that did not reflect credit on herself or on the school system. She did not prepare, maintain, and submit accurate reports regarding her disabled students pursuant to Florida law, Department of Education Rules, Petitioner's rules, and the established IEP creation process at Olinda. By falsifying IEPs and failing to conduct IEP meetings, she failed to efficiently and faithfully teach her disabled students in accordance with Florida law. The persuasive evidence also establishes that Respondent violated Petitioner's rule 6Gx-4A-1.213, the "Code of Ethics." Petitioner's rule incorporates the standards established in rules 6B-1.001, the Code of Ethics of the Education Profession in Florida, and 6B-1.006, the Principles of Professional Conduct for the Education Profession in Florida. As previously discussed, the evidence establishes that Respondent violated the standards established in these rules. Further, Respondent violated rule 6Gx-4A-1.213 by failing to make the well-being of her disabled students and the honest performance of her professional duties her core guiding principles, failing to treat her students with respect and fairness, and failing to deliver her job duties in an efficient and effective manner. Based on the foregoing, it is determined that Respondent's conduct constitutes misconduct in office, and that her misconduct is so serious as to impair her effectiveness in the school system. Accordingly, it is determined that just cause exists for Petitioner to terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order terminating the employment of Respondent, Walita McBride, as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2012.
The Issue Does just or proper cause exist to terminate Respondent- custodian, an educational support (non-instructional) employee for gross insubordination, misconduct in office, violation of the Code of Ethics by attempting to use students for personal gain, and overall unsatisfactory job performance?
Findings Of Fact Respondent was first employed as a custodian at Gainesville High School by the Alachua County School Board on August 16, 1993. As such, he qualified as "non-instructional personnel" and as an "educational support employee." He remained continually employed until the termination letter giving rise to the instant case. At all times material to this cause, Respondent was employed under a Collective Bargaining Agreement between his union and the School Board. On May 20, 1994, Respondent completed training for and was certified as a "Certified Custodian." He received a "step-up" in pay as a result. Certification attests to competency, not performance or attitude. Samuel D. ("Sam") Haywood, Assistant Principal, supervised and evaluated Respondent through a chain of command during the school years of 1993-1994, 1994-1995, and 1995-1996. Despite an interim evaluation identifying problem areas on March 16, 1995, Respondent was rated overall "satisfactory" annually during those years. Petitioner had a history of being uncooperative and verbally abusive with the Head Custodian and Lead Worker, but these problems were resolved by the subsequent annual evaluations and prior to the present charges, so they have not been considered. At the conclusion of the 1995-1996 school year, Sam Haywood was replaced as Assistant Principal by John C. Williams, who continued to supervise Respondent through a chain of command that descended through Albert Williams, Head Custodian, and Alexander Bradley, Lead Worker. As of the 1996-1997 school year, Respondent was the on- site union representative for the Gainesville High School custodians. Assistant Principal John C. Williams holds a master's degree in school psychology and is a certified school psychologist. He had held the position of school psychologist in Sarasota County for ten years prior to his appointment at Gainesville High School. His supervisory experience consists of two years as assistant manager at Eckerd Drugs before becoming a school psychologist. At all times material he was responsible for the maintenance needs of Gainesville High School, making sure maintenance needs were responded to by the central office or the maintenance person on staff. That responsibility covered the upkeep of the grounds and the buildings. He was responsible for the cafeteria as far as being the immediate supervisor of the cafeteria manager and was responsible for the discipline of approximately 1,950 students. He also was responsible for the security of the buildings, responding to fire emergencies and evaluating one-fourth of the instructional staff. In addition, he was the site supervisor of the custodial staff with twelve custodians, plus the Head Custodian. Virginia S. Childs is the Principal of Gainesville High School. James Williams, Mark Lee, and Willie Townsend are custodians at Gainesville High School. On September 4, 1996, the Assistant Principal tried to locate Respondent because he wanted part of Respondent's assigned area raked and mowed for a sports activity that was taking place that evening. After searching from approximately 4:30 to 5:15 p.m., the Assistant Principal located Respondent exiting a restroom outside of his assigned area. The Assistant Principal directed Respondent to rake and mow the designated area "for company." By both the Assistant Principal's and Respondent's accounts, the Respondent told the Assistant Principal twice that, since he could not complete the job by 6:00 p.m. quitting time, he would mow or he would rake, but he would not do both. The Assistant Principal repeatedly told Respondent to do both jobs. In the course of arguing with the Assistant Principal, Respondent also appealed to a teacher/coach standing nearby that he should not have to do both jobs. The Respondent did not complete the job as requested. The Assistant Principal did not cite Respondent for not completing the September 4, 1996, assignment as requested, but, upon proper notice, he held a conference on September 6, 1996, to discuss the incident. Present were the Assistant Principal, the Principal, the Respondent, and the Respondent's union representative. In the conference the Assistant Principal stated that on September 4, he had simply requested the Respondent to do a job, and he did not expect to have to explain or justify the request to the Respondent. The Principal explained to the Respondent that the Assistant Principal was the Respondent's supervisor and that Respondent must comply with his work assignments unless they were harmful or unlawful even if Respondent disagreed with them. She explained that Respondent should first comply with the Assistant Principal's request and he could then pursue a grievance, if he felt a grievance were warranted. It was explained that the Respondent needed to be a member of a team and contribute positively and without wasting time instead of being confrontational and argumentative with his supervisor. The Respondent stated that he was a man and that he had the right to disagree with his supervisor about how his job should be done. No progressive discipline form was provided to Respondent. At formal hearing, Respondent maintained he had injured his back in 1994 and later injured his neck and left shoulder in January 1995, but the medical documentation shows an injury on March 3, 1995, to his neck and a September 27, 1996, strain to his trapezius muscle (shoulder). A School Board document references an October 2, 1996, injury. Respondent explained the new date of injury of September 27, 1996, was assigned by his doctor so that workers' compensation would cover an aggravation of the old injury. According to Respondent, the School Board initially denied the claim(s), but a ruling in his favor became final on November 26, 1996.2 In any case, after September 27, 1996, the Assistant Principal put considerable effort into adjusting Respondent's work hours and assigning him duties which complied with the evolving physical restrictions placed on him by his doctors. In order to improve general efficiency, the Assistant Principal and Head Custodian Albert Williams revised the work schedules of all the custodians, changing hours of work, lunch times, and even shifts. Albert Williams passed out the revised schedules and told the custodians that there would be a meeting in the conference room on October 3, 1996, to discuss the changes in their schedules and that they could ask questions about their schedules then. At the October 3, 1996, meeting, Willie Townsend raised questions about his own revised schedule. The Assistant Principal told him that they were there to discuss schedule changes and his priorities generally but not individual situations. He invited all the custodians to discuss individual schedules privately one-on-one in his office immediately after the general meeting. Respondent raised his hand, taking it upon himself as the on-site union representative, to speak on behalf of Mr. Townsend. The Assistant Principal recognized Respondent, but again said he would not go over each individual schedule in the meeting. Respondent continued to interrupt, and the Assistant Principal stated his position again. Over continued comments by Respondent, the Assistant Principal asked Respondent to be quiet. Respondent persisted in speaking, making rude comments, while the Assistant Principal tried to quiet him and move on with the meeting. The Assistant Principal finally rose from his seat and told Respondent to, "shut up." Respondent then stood up, too. Both men's voices were raised. As a result of this exchange, the meeting broke up without accomplishing anything. No credible evidence supports a finding that Respondent used profanity in the October 3, 1996, meeting.3 When the meeting broke up, the Assistant Principal led the way to his office. Behind closed doors, the Assistant Principal met with Respondent and Albert Williams. The Assistant Principal positioned himself behind his desk and told Respondent that his actions in the meeting had been inappropriate and uncooperative. The Respondent stated that he had a right to speak and that the Assistant Principal "could not tell me to do a damn thing." There is no evidence of profanity beyond this remark, which Respondent admits he made.4 The Assistant Principal asked Respondent to leave his office. Respondent did not leave. Instead, he asked to use the telephone to call a union representative. The Assistant Principal told him he would have to use the public telephone in the outer office. Respondent replied that the telephone on the Assistant Principal's desk was a public telephone and he had a right to use it. He reached for the telephone. The Assistant Principal moved the telephone out of Respondent's reach and stood up, asking Respondent to leave his office. Respondent then "bowed up," clenching his hands into fists at his sides. The Assistant Principal's perception was that Respondent was positioning himself to strike him. By that time, the voices of the two men were loud enough to be heard in an adjacent front office by Dr. Arnold of the school administrative staff, the school receptionist, two students, and a parent volunteer. Their movements were also observed through the office's glass door. Albert Williams felt it necessary to calm Respondent, caution him against any further talk or actions, and cajole him into leaving the Assistant Principal's office. No force was necessary to remove Respondent. The Assistant Principal snapped that Respondent, "was suspended." Respondent left the Assistant Principal's office and began talking to other custodians who had waited outside. Respondent then attempted to involve Dr. Arnold. She told him she would not speak to him at that time. Only then did Respondent and the other custodians disperse. After Respondent left the area where he had been talking with other custodians, Business Manager Judy Warren authorized him to sell tickets at the junior varsity football game. Principal Childs was apprised of the situation, and when she looked for Respondent, Ms. Warren told Ms. Childs where to locate him. The Principal went to Citizens' Field where the varsity game was being played. She told Respondent he was relieved of his duties and on paid administrative leave for October 4, 1996. Respondent had pre-scheduled vacation leave for the next two weeks. Upon appropriate notice, a disciplinary conference was held when the Respondent returned from his vacation on October 21, 1996. Present were the Respondent; Ms. Birdsong, Personnel Supervisor; a union representative; the Assistant Principal; and Dr. Jim Scaggs, Assistant Superintendent for Human Resources. At the conference, Dr. Scaggs reviewed the incident of October 3, 1996, with the Respondent, including written accounts by Dr. Arnold and the Assistant Principal. Dr. Scaggs informed the Respondent that it was not appropriate to challenge his supervisor during a staff meeting. He told Respondent that the Assistant Principal was the Respondent's supervisor and directed Respondent to recognize him as his supervisor. He further directed the Respondent to follow his supervisor's directions, work cooperatively with him in the future, and refrain from challenging him. Dr. Scaggs confirmed his oral instructions in writing, issued a notice of suspension of the Respondent without pay for three days, October 23-25, 1996, for raising his voice in the October 3, 1996, general meeting and afterwards, using mild profanity, attempting to use intimidating body language, insubordination, and a flagrant disrespect for his superior's authority, and Ms. Childs' failure to find Respondent on duty in his assigned workplace.5 Progressive discipline is only mentioned when Dr. Scaggs' letter comments on the removal of a progressive discipline form from the Respondent's personnel file because Respondent was not given a copy of it at the September 6, 1996, conference. Therefore, the October 23-25, 1996, suspension was Respondent's first discipline other than counseling. On November 18, 1996, Respondent was assigned to light duty (such as dusting) in B wing and scheduled from 2:30 p.m. to 11:00 p.m. The accounts of Respondent, the Assistant Principal, and James Williams concur that when Respondent came on duty he spent about ten minutes talking to James Williams who was supposed to be raking outside B wing. Respondent had no raking duties at that time, due to his medical restrictions. The Assistant Principal asked Respondent what he was doing out of his assigned work area on November 18, 1996, and asked him to go to his assigned indoor work area. At that time, Respondent did not tell the Assistant Principal that he was asking James Williams' advice about cleaning up chemicals in his area, which was the reason Respondent offered at formal hearing for being out of his assigned work area on November 18, 1996. By Respondent's, the Assistant Principal's, and James Williams' accounts, Respondent also did not immediately obey the Assistant Principal's directive. Instead, he continued talking to James Williams another 2-3 minutes and briefly spoke with Dean Byrd before following the Assistant Principal's instructions to go back to work on B wing. On November 25 or 26, 1996, Respondent was working the evening shift behind Mark Lee who did the heaviest duties while Respondent was doing light duty. Respondent went to the restroom and to get lightbulbs. That night, the Assistant Principal returned to campus shortly after 7:00 p.m. due to his daughter's volleyball game. He also walked through the school to see what was going on. He saw other custodians but not Respondent. He saw Respondent across courts and corridors twice, but they did not meet. When he finally located Respondent, Respondent did not at first give a clear answer where he had been. Then Respondent said he had been helping Mark Lee. The Assistant Principal went to speak to Mark Lee and closed the door behind him. There are three versions of what happened next, related by the Assistant Principal, Respondent, and Mark Lee, respectively. The best reconciliation of the three versions is that Respondent opened the door. Thereafter, a sort of tug of war ensued with the Assistant Principal repeatedly closing the door, insisting that he had a right to a private conversation with another employee, and Respondent repeatedly opening the door, insisting he had a right to hear any conversation about himself. This altercation ceased only when the Assistant Principal gave Respondent a direct order to leave the door closed. Respondent obeyed the oral order. When the Assistant Principal exited the room, Respondent asked him why he was harassing Respondent. Respondent then followed the Assistant Principal down the hallway, accusing him of harassing him. The Assistant Principal wrote up his version of the entire incident on November 26, 1996.6 Within a short time, Respondent announced to Mark Lee and Alexander Bradley that his neck hurt and his old injury had been aggravated by the Assistant Principal snatching the door away from him.7 Respondent next went to the Assistant Principal's office. The Assistant Principal searched for workers' compensation Notice of Accident forms but did not find any. He refused to authorize emergency treatment under the Workers' Compensation Act as a result of the incident with the door, because he viewed Respondent's behavior as insubordination and as not job related. He told Respondent to use his own insurance if he felt he needed emergency treatment. Respondent sought treatment. Respondent was put on three days' bed rest which coincided with the Thanksgiving holiday weekend. Respondent returned to work the Monday following the holiday weekend. On December 19, 1996, the Assistant Principal attempted to deliver to Respondent the mandatory notice of conference form letter, for a scheduled conference the next day. The Respondent walked away, thereby signaling his refusal to sign to acknowledge receipt of the notice. The Assistant Principal asked Respondent to wait there while he went to A wing, about 20 yards away, to get Alexander Bradley to be a witness to the delivery of the form. The Respondent did not wait but continued downstairs and crossed into the administration building. The Assistant Principal followed, requesting that Respondent sign the form. Principal Childs, coming out of her office, was in front of Respondent. The Assistant Principal, following behind, called out to Ms. Childs to ask the Respondent to stop to sign the notice. Only when Principal Childs asked Respondent to sign the form did he do so. She explained he must sign the form and the meeting would be rescheduled to accommodate his union representative. Respondent's defense to the foregoing incident was that he wanted to telephone his union representative to be sure she would be available the next day for a conference since that would be the day before a holiday. This explanation is not credible in light of Respondent being the on-site union representative and having been through conferences for the record before. With his familiarity with the procedures, he must have known when he walked away from the Assistant Principal that his signature would only acknowledge receipt of the notice and that the progressive discipline conference would have to be rescheduled to accommodate his union representative. Moreover, prior to this date, Respondent's union representative had explained to Respondent, in Ms. Child's presence, that Respondent's assertion that he had to call his union representative even before he signed accepting a notice was insufficient and that he must contact his union representative on his own time. The conference scheduled for December 20, 1996, did not take place because Respondent's union representative was, in fact, not available. It was rescheduled after the winter holidays, on January 7, 1997. The conference on January 7, 1997, was a progressive discipline meeting. Present were the Respondent, his union representative, the Principal, and the Assistant Principal. The incidents of November 18 and 26 and December 19, 1996, were discussed with the Respondent. The conclusion of the Principal and Assistant Principal was that the behaviors of the Respondent were unacceptable because he continued to show disrespect to the supervisor's authority. He was cited for being out of his assigned work area on November 18, 1996; for insubordination on November 26, 1996; and for refusing to obey a supervisor's direct order on December 19, 1996. As discipline the Principal imposed a two-day suspension of the Respondent without pay for January 15-16, 1997. On January 17, 1997, Bruce A. Mueller, OTR/L.CRT. of Rehab Solutions in Gainesville wrote to Gary Newcomer, M.D., that based on his evaluation, the Respondent was then able to work at the "light-medium" physical demand level for an 8-hour day. Mr. Mueller stated that the Respondent should avoid shoulder height and above activities, but he could do shoulder and overhead work on an occasional basis. On January 23, 1997, after required notice, the Assistant Principal gave Respondent an interim evaluation of his job performance. The Respondent was rated "Satisfactory" in the areas of Quality of Work and Appearance and Grooming; "Needs Improvement" in the areas of Productivity, Attendance and Punctuality, and Use of Time; "Not Satisfactory" in the areas of Responsibility and Dependability, Cooperation, Initiative, Personal Relationships, and Acceptance of Constructive Criticism. Overall Performance was rated "Not Satisfactory". The Respondent indicated in the meeting and by correspondence on February 5, 1997, that he did not agree with the evaluation. The plan for improving performance was set out in the following memo from the Assistant Principal: In order to improve overall performance David Mosley will receive directions from Albert Williams [Head Custodian] concerning his productivity, use of time and initiative. His performance as it relates to cooperation, personal relationships, i.e. as it relates to his supervisor, and acceptance of constructive criticism of his supervisor or head custodian can be improved by learning to work cooperatively with John Williams [Assistant Principal]. Efforts will be made to inform him when his behavior is not reflective of the appropriate employee-supervisor relationship. The custodial schedule changes that Respondent received before the interim evaluation directed him to follow the directions of the Head Custodian, Albert Williams. When Respondent asked Albert Williams whether the duty was appropriate under Respondent's medical restrictions, he referred Respondent to the Assistant Principal for clarification. The plan for improvement did not indicate any change in that procedure. On January 29, 1997, the Respondent visited Gary Newcomer, M.D., at Alliance Occupational Medicine in Gainesville. Dr. Newcomer issued a duty status report on that date, indicating that the Respondent had reached maximum medical improvement, and that the "light-medium" restriction was in place, and included a checklist of the activities and weights which the Respondent could operate. The Respondent had been assigned to "light duty" and his hours had been 2:30 to 11:00 p.m. On January 24, 1997, the Assistant Principal had issued a ten-day notice of schedule change to Respondent, requiring him to switch to 4:30 p.m. to 1:00 a.m., effective February 7, 1997, and that Respondent was to assume new duties of locking gates and checking the gym area after students returned from various late events. Respondent communicated with Synester Jones, Assistant Superintendent of Human Resources, and an old family friend, John Dukes, Jr., Assistant Superintendent of Student Support Services, asking them to intervene in what he believed to be harassment by the Assistant Principal. On January 30, 1997, Respondent went to Gainesville High School's main office and sought an interview with Principal Childs. When her secretary told him she was in conference, he asked to wait. While the Respondent was in the main office, the Assistant Principal requested that he return to his work area, the top of B Wing. The Respondent left the office and went around the corner. The Assistant Principal then went into a meeting with administrators Dr. Arnold and Mr. Bishop. The Respondent returned and stood at the reception counter. The Assistant Principal went out and again requested that he go to his work area. The Respondent said that he wanted to speak to the Principal. The Assistant Principal told the Respondent the Principal was busy and that he could make an appointment with her later. The Respondent then asked to speak to Dr. Arnold. Dr. Arnold told him she was busy at the time. The Respondent then asked to speak to Mr. Bishop. Mr. Bishop asked the Respondent if he could go to work. The Respondent replied he could. Mr. Bishop said, "You need to go to it." Only at that point did the Respondent leave to go to his work area. Respondent inquired aloud why no one would speak to him. Respondent's behavior at this time clearly evidenced that he would accept direction from other superiors but not his direct supervisor, the Assistant Principal. The custodians had been instructed that if they intended to leave work during their shift, they must first check with either Albert Williams, the Head Custodian, or the Assistant Principal. On January 30, 1997, Alexander Bradley, the Lead Worker, informed the Assistant Principal that the Respondent had left work, saying he was ill. The Respondent had clocked out at 3:27 p.m. but had not first checked with either the Head Custodian or the Assistant Principal. Upon proper notice, on January 31, 1997, a disciplinary conference was held to discuss the behavior of the Respondent on January 30. Present were the Respondent; his union representative; Dr. Arnold; the Assistant Principal; and the Principal. The concern was the unwillingness of the Respondent to respond to a request by the Assistant Principal in a cooperative and timely manner. The Principal and Assistant Principal imposed a two-day suspension of the Respondent without pay, February 5-6, 1997, for insubordination, referencing Respondent's willingness to take directions from Dr. Arnold and Mr. Bishop, but not his own supervisor. Nothing was said about security problems.8 In February 1997, the school received an updated report from the Respondent's doctor indicating his work capacities. A few days prior to February 19, 1997, the Assistant Principal revised the Respondent's written work schedule to reflect the doctor's latest report. On February 18 or 19, 1997, Respondent went to see Principal Childs to complain because his schedule was being changed so frequently. He complained that the new schedule called for him to sweep or mop and that sweeping and mopping aggravated his shoulder. Consequently, he was not required to mop or sweep that day. The Principal agreed to have the Assistant Principal review Respondent's restrictions. After consulting medical records and risk management, the Assistant Principal did not further alter the duties assigned Respondent. The Principal, the Assistant Principal, and Alexander Bradley went through the schedule with the Respondent to be sure he understood it. The next day, the Respondent again stated to the Lead Worker, Alexander Bradley, that he did not understand the custodial duties to which he was then assigned. Mr. Bradley informed the Assistant Principal, who then went to the Respondent's work area to explain the schedule to the Respondent. The Assistant Principal asked what Respondent did not understand. Respondent's reply was that he did not understand any of it. Clearly, Respondent was not being entirely accurate but was once more objecting to mopping and sweeping each day. However, his words, tone, and the context of his reply was flippant and disrespectful to his supervisor. The Assistant Principal chose to take the Respondent's reply literally and asked what specific duties Respondent did not understand. Respondent stated he did not want to discuss it with the Assistant Principal, and the Assistant Principal persisted in taking Respondent on a walk-through of his area and describing in minutiae each duty Respondent was expected to perform. This was not just mopping but dusting desks, chalkboards, and computers, and scrubbing sinks. The Respondent asked to have a neutral person present. The Assistant Principal stated the walk-through was not discipline requiring a union representative and that he wanted to proceed. The Respondent asked to go to the restroom. The Assistant Principal asked Mr. Bradley to go with Respondent so that Respondent would not leave the building. Respondent returned and, as the three men walked along the hall, Respondent stopped a student friend of his who was still on campus and asked him to telephone Respondent's wife and ask her to call Assistant Superintendent Dukes for him. The Assistant Principal told the student to move along and asked Respondent not to involve the students. Respondent repeated this situation with another student who was both Respondent's nephew and godson, and the Assistant Principal threatened Respondent with an insubordination charge. Respondent threatened to go to others about what he perceived as harassment. The Assistant Principal asked, "Are you threatening me?" Respondent responded, "You can take it as you want to, but it's not over yet." The Assistant Principal was called away and, as a result, Respondent and Mr. Bradley were briefly left alone. They got into a verbal dispute when Respondent accused Mr. Bradley of siding with the Assistant Principal. However, Mr. Bradley's testimony regarding Respondent's use of profanity to him is utterly incredible.9 When the Assistant Principal returned, he tried to continue walking the Respondent through his duties. The Respondent tried to walk ahead or even leave on occasion and had to be ordered by the Assistant Principal to wait or stay. Then, as the others would proceed along, the Respondent would not move and had to be ordered by the Assistant Principal to come with them. A verbal dispute arose over this and escalated into career threats on both sides. Finally, the Assistant Principal stated there was no sense in going through the rest of the school rooms, but he reiterated he wanted the work done that night. Respondent said he was not feeling too good. The Assistant Principal told him that if Respondent were going home, to come by his office first. When Respondent got to the office, the Assistant Principal handed him a notice to attend a disciplinary conference the next morning. Respondent signed the paper and left. He checked out at the time clock. On February 21, 1997, the Assistant Principal wrote up the last incident and recommended five days' suspension without pay as a disciplinary action against Respondent. On February 28, 1997, Assistant Superintendent Synester P. Jones met with the Respondent, his union representative, and the staff attorney to discuss the events of February 19-20. The Respondent brought up some issues that needed further exploration, including schedule changes and whether the schedule was outside the Respondent's work restrictions. The Respondent was also given an opportunity to put into writing his version of what had occurred. Following the meeting on February 28, 1997, Ms. Jones investigated the Respondent's work schedule and his assigned duties, and determined that the proposed work schedule was not outside his current medical restrictions. For example, the Respondent was not to do constant mopping, so his schedule had been arranged for mopping only the restrooms on one floor of B wing each day. By all professional health care accounts, Respondent's minimum physical functioning would permit him to mop 33 percent of his work day; lift 35 pounds occasionally; lift 15 pounds frequently; lift 7 pounds constantly; reach up to 33 percent of his work day; push with a force of 65 pounds occasionally; push with a force of 46 pounds frequently; and push with a force of 21 pounds constantly. On March 11, 1997, a follow-up conference was held with the Respondent. Based on the information she had obtained since February 28, and on the written statement and comments from the Respondent, Ms. Jones recommended to the Superintendent that the Respondent be suspended with pay until the March 18, 1997, meeting of the School Board, when he would be recommended for suspension without pay and termination. The Respondent was so informed on March 11, 1997, and the written termination letter was prepared following the meeting and delivered on March 13, 1997. Principal Childs concurred with Assistant Superintendent Jones' recommendation for termination because in each of her conferences with Respondent she had perceived that he had a great deal of difficulty accepting directions and/or following directions given by a legitimate supervisor, the Assistant Principal. She also believed his argumentative, uncooperative, and verbally abusive behavior was inappropriate, disruptive, and dangerous in the workplace, created a hostile work environment, and constituted an ineffective and inefficient use of everyone's time. Respondent presented several witnesses to the effect that he was a good and cooperative worker and two to the effect that the Assistant Principal was more vigilant about checking up on Respondent's work activities than those of any other custodian. However, none of these witnesses had any clear knowledge of changes made in Respondent's schedule and work assignments to accommodate his injury and restrictions, and none of them ever had to direct him as a supervisor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board terminate Respondent effective upon the dates contained in its termination letter, but only for gross insubordination, misconduct, and overall unsatisfactory job performance. RECOMMENDED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998.
The Issue The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
Findings Of Fact Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below. For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day. One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6, 2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile." The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom. While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks." The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child. The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located. As she was walking the child into the building, Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could identify the child. As directed, the other teacher entered Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals. In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized. As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape. Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel from the front door of the classroom to the exterior doors leading to the courtyard. Respondent's scheduled lunch was 11:00 a.m. to 11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established. The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/ At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected. As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and nothing in the record suggests that she did not take her lunch as scheduled. As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped. The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door. Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/ The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4. The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low. Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident. The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident. There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence: Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses. Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself. Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child. Based on the evidence cited in the preceding paragraph, D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman. The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted. Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone. As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/ Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing. Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing. Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 1st day of December, 2014.
The Issue The issue in this cause is whether the Petitioner Duval County School Board should dismiss the Respondent for professional incompetence pursuant to the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941) as amended.
Findings Of Fact The Petitioner is the Duval County School Board. The Respondent, Bobby Palmore, has been an employee of the Petitioner since the 1992-93 school year. The Respondent is a tenured teacher assigned as a guidance counselor. During the 1997-98 school year, the Respondent was a guidance counselor at North Shore Elementary School. The Principal at the school in 1997-98 was Larry Davis. Concerns regarding the Respondent’s work performance at North Shore were raised early in the school year regarding his participation with Intervention Teams. An Intervention Team is formed to assist a guidance counselor with a particular student. The team meets when requested by the guidance counselor. Notwithstanding that the Intervention Team convened at the Respondent’s request, he missed the meeting scheduled for September 29, 1997. His erratic attendance at other Intervention Team meetings was of concern to the Assistant Principal, Martha Johnson, and the Principal. Ms. Johnson spoke with the Respondent about this, and Mr. Davis wrote the Respondent about his attendance at these meetings. Respondent’s attendance did not improve. The Respondent’s erratic attendance at Intervention Team Meetings was unsatisfactory performance of his duties and showed a lack of understanding of the subject matter. The Respondent repeatedly interrupted classroom teachers with unannounced and unscheduled calls and visits to their classrooms. This disrupted their classes, and they complained to administrators about Respondent’s conduct. These interruptions were frequently to obtain information regarding students who were being staffed for one reason or another, an activity coordinated by the guidance counselor. The Respondent was officially counseled about these interruptions by Ms. Johnson, but continued to interrupt classes and cause disruptions. This was unsatisfactory job performance and showed the Respondent’s failure to follow directions, plan his activities effectively, and manage his time well. These are considerations in Competency 2 of the Evaluation criteria. The Respondent was asked by Ms. Johnson to make a sign to direct parents and others to a December 12, 1997, Child Study Team (CST) meeting. He did not do so. This also showed the Respondent’s inability to follow direction. On January 13, 1998, the Respondent told Deborah Nurse, an employee of the school, in a rude and loud voice, that she was not to use the copying machine that was outside his office. Mr. Davis counseled the Respondent in writing regarding his behavior on January 16, 1998. On January 14, 1998, at a CST meeting, Ms. Slaughter asked the Respondent for a cumulative folder on a student. The Respondent had been asked to the meeting because of his lack of cooperation regarding the folder. The Respondent accused Ms. Slaughter of not respecting him in the meeting, and insisted that she ask him again for the folder. The Respondent’s actions were embarrassing to the professionals present at the meeting and showed a lack of professionalism on the part of the Respondent. He was counseled in writing by Ms. Johnson about his conduct. On January 15, 1998, a meeting was held to discuss a student between Ms. Johnson, Mrs. Shabazz, and the Respondent. Mrs. Shabazz indicated that a pertinent document was missing from the student’s folder that could effect his educational program and result in a loss of funding for the school. It was Respondent’s responsibility to maintain the student’s records in the guidance office. Ms. Johnson counseled the Respondent about his responsibilities in maintaining records and their importance to the school. She offered to assist the Respondent in reviewing the cumulative folders prior to their processing. The Respondent was responsible for preparation of materials for and participation in CST meetings on students. The Respondent placed students on the CST agenda without completing the data in their folder. This failure interfered with the proper and timely placement of students, and evidenced an unsatisfactory performance of a basic part of the Respondent’s job. As a result of the complaints about the Respondent’s work and conduct, a Success Plan was developed. This plan outlined areas in which the Respondent was not performing satisfactorily, identified objectives for improving his performance, and strategies to meet the objectives. A team was created to assist the Respondent including Mr. Davis, Ms. Johnson, the Respondent’s supervisor in guidance services, and the professional development facilitator. The Intervention Team had decided that team members should receive a response from the Respondent within three days. This time limit was incorporated in the Respondent’s Success Plan; however, the Respondent did not submit the CST packets within the time limits. In addition, the Respondent’s tone in speaking with the teachers was such that they complained to Ms. Johnson about the Respondent. Ms. Johnson counseled the Respondent about the lateness of his submittals and his interactions which the teachers. The Respondent did not improve his conduct that directly resulted in student’s needs not being met. The Respondent continued to be late to or to miss meetings and scheduled classroom visits. On February 4, 1998, he was late to a classroom visit. He cancelled a classroom visit he had scheduled. He did not follow the weekly calendar of guidance activities as required in his Success Plan. On February 4, 1998, Mr. Davis met with the Respondent to discuss the proper procedures for conducting a CST meeting as a means of assisting the Respondent. On February 6, 1998, Mr. Davis counseled the Respondent about his continued interruption of classes, and the Respondent forgot about a scheduled guidance session and did not attend, until reminded by Ms. Dennis. On February 6, 1998, Ms. Anderson met with the Respondent to discuss the guidance program and to offer assistance to him. She suggested that he use a weekly, hour-by- hour calendar to plan his time and activities. She also counseled with him about using a lesson plan for a small group session to provide a clearly defined objective for the session. Ms. Anderson directed the Respondent to follow-up with her in a week. The Respondent did not follow-up with Ms. Anderson or follow any of her advice. On February 9, 1998, Mr. Davis observed the Respondent conduct a meeting with staff regarding the Florida Writes Test. The Respondent’s conduct of the meeting was unsatisfactory. Issues were left unresolved and staff members were confused about the presentation. Some of the material presented was inconsistent with the information in the manual. Mr. Davis wrote the Respondent about these matters, and referred the Respondent to his Success Plan. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to make to two-scheduled classroom visitations. On February 10, 1998, the Respondent missed a scheduled classroom visitation. The Respondent was not following a weekly calendar of activities, and his performance was unsatisfactory and contrary to the Success Plan. On February 10, 1998, the Respondent attempted to counsel the wrong child about the death of the child’s mother, and was prevented from doing so by the teacher. This reflected poorly on the Respondent’s attention to his duties, and his professionalism. On February 10, 1998, the Respondent was provided a list of counselors at other schools who had agreed to let the Respondent attend classroom guidance or CST meetings at their schools. The Respondent was late and showed a lack of interest while attending a classroom guidance session at Lake Forrest. On February 11, 1998, Mr. Davis observed a CST meeting at North Shore. It was evident that the parents had not received the required seven days' notice of the meeting. The Respondent had not conducted the pre-conferences, and had not coordinated the scheduling with the teachers. The Respondent did not have the proper forms in the cumulative folders, and had not conducted any classroom observations in preparation for the CST meeting. In sum, the Respondent’s performance showed a complete lack of competence and knowledge of his duties as a guidance counselor. On February 11, 1998, the Respondent missed his scheduled classroom guidance visit. On February 12, 1998, the Respondent missed his scheduled classroom guidance visit because he was late in arriving. On February 12, 1998, The Respondent discovered a coding error on the Florida Writes Test. He reported the error to Mr. Davis and accused the teacher of coding the test incorrectly. Davis directed the Respondent to correct the mistake and notify the testing department regarding the possible problem. The Respondent did not correct the test as directed, but placed a note on the box and resealed it to be mailed. The Respondent’s actions violated the testing procedures, and he did not do as he had been directed. On February 17, 1998, Ms. Johnson counseled with the Respondent concerning his failure to respond to student and staff needs. She advised him he was not meeting his Success Plan goals, and students were not receiving services they needed. The Respondent refused to counsel with a developmentally disabled student who had been sent to guidance by his teacher. The proper paper work had been completed for the student to participate in the group counseling session; however, the Respondent refused to allow the student to participate, chasing the student around the room telling him to "get out." The student was confused and embarrassed. Ms. Johnson, who was observing the session, and took charge of the student by having him sit with her, resolved the situation. The Respondent's actions demonstrated a complete lack of understanding of the role of a guidance counselor, sensitivity for students, and ability to conduct a class or counseling session. On March 9, 1998, Mr. Davis completed the Respondent’s Annual Performance Evaluation. The evaluation consisted of eight competency areas. The Respondent received an unsatisfactory rating in three of the competency areas, which constituted an overall unsatisfactory evaluation. The facts as presented at hearing confirm the evaluation, and show that the Respondent was clearly incapable of performing his job duties. He lacked knowledge of his duties or how to perform them. He was insensitive to the students' needs and did not meet them. He did not follow the direction of his Principal and did not maintain a professional relationship with his coworkers and superiors. After receiving this evaluation, the Respondent continued in the same pattern of behaviors. He did not prepare and use a calendar of activities. He continued to provide materials late. He refused to assist a parent obtain the proper papers to enable the parent’s child to enroll in another school. He continued to disturb classes. He failed to notify staff of CST meetings at which they needed to attend. He took seven months to complete the paper work to have one child tested. In fact, there were several students who were awaiting CST processing at the end of the year. The Respondent was treated fairly and provided assistance by the school’s administration. Based upon his unsatisfactory evaluation in 1997-98, the Respondent was administratively transferred to J.E.B. Stuart Middle School the following year for an additional year of observation of in-service training. Carol Daniels is the Principal of Stuart Middle School. She met with the Respondent and advised him that he was starting with a clean slate at her school. School Board Policy required that Ms. Daniels confer privately with the Respondent and develop a Success Plan. She met with the Respondent on August 24, 1998. The Success Plan outlined goals and objectives to improve the Respondent’s performance as a guidance counselor. A support team was created to assist him. Soon after the school year began, Ms. Daniels counseled the Respondent about the proper method to request student records. She arranged for him to attend New Counselor Training on or about August 31, 1998. The Respondent was negative and adversarial about being requested to attend the training. He officially complained about the request, but upon review the Regional Superintendent determined that Ms. Daniels’ request was not arbitrary and was appropriate. The Respondent was counseled by Mr. Gilmore, the Vice Principal, on the need to process gifted students under the ESE program. He had failed to process several of these students, and he was given a deadline for processing these students. On September 8, 1998, the Respondent did not exit the building during a fire drill. Ms. Daniels counseled him in writing about the need for everyone to evacuate the building during drills. Mr. Gilmore counseled in writing the Respondent about the lack of lead-time in requesting information about students, and his abruptness and tone in making requests. On October 26, 1998, Linda Bailey requested an ESE/CST Agenda from the Respondent. The Respondent replied he was too busy to provide the information. On October 28, 1998, Ms. Bailey again asked for the information in writing. The Respondent did not provide the information. On October 26, 1998, Ms. Bailey also requested progress reports for the ESE students who would be reevaluated on November 9, 1998. These reports had been used at Stuart Middle School for many years as a best practice strategy. The Respondent advised that he had no intent of providing the progress reports and refused to do so. On October 26, 1998, the Respondent accused the District ESN Admissions Representative of taking ESE forms from his office. His tone and manner were threatening and confrontational. On October 27, 1998, Ms. Daniels notified the Respondent that he would have an evaluation and conference on October 30, 1998, pursuant to district guidelines. On October 28, 1998, Charlotte Robbins, ESE Interventionist, met with the Respondent to discuss three students. It was the Respondent’s responsibility to provide information to Ms. Robbins in a timely manner. The Respondent did not provide Ms. Robbins the necessary information prior to the meeting. The Respondent also invited parents to the meeting without advising Ms. Robbins. On November 2, 1998, Norma Peters, a speech therapist, advised Ms. Daniels that she had requested the Respondent to provide her a list of students to be evaluated two to three weeks before CST meetings. The Respondent told Ms. Peters he would not be able to provide the information as requested, although previous guidance counselors had provided Ms. Peters the names three to four weeks in advance of meetings. Although Ms. Daniels spoke with the Respondent about Ms. Peter’s concern, the Respondent did not provide the information as requested. On November 5, 1998, the two eighth grade counselors met with the Respondent to discuss the need for him to be a team member. They raised the fact that he did not answer the phone, assist parents, or help the guidance clerk when necessary. They also advised him to improve his communication with the ESE teachers, CST members, speech pathologist, and interventionist. A CST meeting was held on November 9, 1998, and only half the parents had been noticed and invited to come to the meeting. The Respondent had been responsible for contacting the parents in compliance with district policies. This failure prevented the CST team from addressing the needs of students. Not only did it potentially deny students services, it frustrated teachers, staff, and parents. On November 24, 1998, the Respondent interrupted class instruction by bringing a parent into the class who had missed an earlier appointment with the teacher. On November 25, 1998, Kathee Cook telephoned the Respondent regarding contacting children for the December 9, 1998, CST meeting. The Respondent refused to contact the parents of the students because ESE procedures required that Ms. Cook contact him seven days prior to the designated date. Ms. Cook reported this to Ms. Daniels, who discussed it with the Respondent, explaining that the requirement was for at least seven days notice. Ms. Daniels advised him that he was responsible for notifying parents for CST meetings, and his position potentially jeopardized notice to the parents as required by district policy. Ms. Daniels directed the Respondent to give the Vice Principal all of the parental notices by December 2, 1998. On December 2, 1998, the Respondent gave Mr. Gilmore ten notice letters; however, he did not provide notices to eleven other parents. The Respondent excused his failure by asserting his interpretation of the seven-day rule. On November 25, 1998, Ms. Daniels advised the Respondent that he had made little improvement in his performance. She discussed with him performance of his duties; and being courteous and respectful to faculty, staff, and parents. The Respondent did not accept the evaluation and was confrontational and adversarial with Ms. Daniels. He refused Ms. Daniels' offer of assistance. On or about January 5, 1999, the Respondent placed seven notice letters to parents in Mr. Gilmore’s box for the January 11, 1999, CST meeting. Not only were the letters late, if intended for the January 11th meeting, but they were addressed to the parents of children being staffed in the January 22, 1999, meeting. The Respondent failed to discontinue ESE services to a student contrary to the parent’s request on three separate occasions, to include at least one request in writing. The Respondent’s failure resulted in the matter being re-assigned to the chair of the guidance department to discontinue the services in accordance with the parent’s wishes. The Respondent left the campus without following the procedures for leaving early. These requirements had been explained during orientation and were in the teachers’ handbook. Ms. Daniels had to notify the Respondent in writing of his oversight. On January 25, 1999, Ms. Daniels notified the Respondent pursuant to the collective bargaining that his work performance was unsatisfactory. He was advised that his performance in Competencies 1, 2, 4, 8 and 9 needed improvement by March 15, 1999. On February 2, 1999, the Respondent was notified that this memorandum would be placed in his personnel file. The Respondent met with parents who were not enrolled in Stuart Middle School during the middle of the school day. Ms. Daniels advised him in writing on February 11, 1999, that this was inappropriate, and he should limit meeting to parents or students enrolled or engaged in enrolling at Stuart. On March 10, 1999, the Respondent made a presentation to an ESE class. His Success Plan required him to schedule presentations during Advisor/Advisee time period. The Respondent’s presentation was arbitrary and he did not seek assistance from his support team. On March 11, 1999, Ms. Daniels completed the Respondent’s annual evaluation. The evaluation addressed nine competency areas. Th Respondent received an unsatisfactory in five of the nine areas, which constituted an overall unsatisfactory evaluation. The Respondent’s performance in Competency 1 (ability to plan and deliver instruction), Competency 2 (demonstrates knowledge of subject matter), Competency 4 (shows sensitivity to student needs by maintaining a positive school climate), Competency 8 (demonstrates a commitment to professional growth), and Competency 9 (shows evidence of professional characteristics) was unsatisfactory. Not only was his performance unsatisfactory, he continued to be unwilling to accept support and assistance. He failed to comply with many areas of his Success Plan and failed to perform his duties. On March 17, 1999, the Respondent interrupted Mrs. Bascombe’s class. Ms. Daniels counseled the Respondent in writing about class interruptions, and how to handle situations by checking the master schedule and placing notices in teacher mailboxes. On March 23, 1999, Ms. Daniels relieved the Respondent of his responsibilities for ESE students because of his poor performance and its impact on the students' welfare. He had failed to timely notify parents. He had failed to communicate with parents, the staff, faculty and the district. His failures had adversely affected the operations of the ESE program. The Respondent was assigned to handle seventh grade non-exceptional education students. Ms. Daniels had to direct the Respondent in writing to relinquish the ESE forms to his successor. On April 20, 1999, after being relieved of his ESE duties, he met with the mother of an ESE student who was then receiving services from his successor. The Respondent was treated fairly at Stuart Middle School. All of the personnel were ready and willing to provide him assistance. He was negative, and refused to co-operate or perform his duties as directed. On May 19, 1999, the Respondent was notified by the Superintendent that he was charged with professional incompetence. He was advised that he would be discharged from the Duval County School System if the charge was sustained by the School Board. He was advised of his right to request a hearing within two days of receipt of the letter dated May 19, 1999. On June 15, 1999, Ms. Daniels provided John Heavner, Director of Professional Standards, written notice that the Respondent had not completed the requirements of his Success Plan. The Respondent requested a formal hearing by letter on July 10, 1999. Notwithstanding that this was late, he was afforded a hearing. On August 5, 1999, the Respondent was notified that he would be suspended without pay effective August 12, 1999. The Respondent was advised that the suspension would be considered at the September 7, 1999, regular meeting of the School Board. The Respondent is charged with incompetence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that: A final order be entered denying the Respondent’s disciplinary appeal and demands set forth in his pleadings, and dismissing the Respondent for incompetence. DONE AND ENTERED this 27th day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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, 2000. COPIES FURNISHED: Lashanda R. Johnson, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Bobby G. Palmore 863 Poydras Lane, West Jacksonville, Florida 32218 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 321399-0400
Findings Of Fact Respondent holds Florida teaching certificate number 600100 which certifies Respondent in the area of elementary education. This certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed as a teacher at North County Elementary School (NCES), one of the schools in the Dade County School District. At the time of the formal hearing, respondent was employed as a classroom teacher at Liberty City Elementary, another of the schools in the Dade County School District. Respondent is an experienced school teacher who was, at the times pertinent to this proceeding, assigned to teach a sixth grade alternative education class at NCES. Wanda McMillon is a Paraprofessional I and was assigned to assist in Respondent's classroom on a full-time basis during the 1990-91 school year. There were approximately 15 students assigned to Respondent's class at NCES. Alternate education deals with children who are behavior problems, have attendance problems, or who are recommended by their counselors to attend alternate education for other reasons. Many of these students come from broken families. Students in Respondent's class frequently engaged in inappropriate and unruly behavior. Examples of this misbehavior included students throwing objects, hitting the Respondent, taking the Respondent's property, and running out of the classroom. As the teacher, Respondent is responsible for maintaining discipline in the classroom. The record is clear that discipline was a serious problem in Respondent's classroom. On November 2, 1990, an incident occurred in Respondent's classroom at NCES involving Respondent and Arthur Brown, a student who had been assigned to Respondent's alternative education class because he was a behavioral problem. Arthur was out of his seat without permission. Arthur did not obey the Respondent's instructions to sit down. Respondent thereafter touched Arthur Brown's shoulder in an attempt to get him to take his seat. Arthur pulled away from Respondent and picked up a plastic chair with metal legs. Arthur held this chair above his head and attempted to hit Respondent with the chair. Respondent grabbed the legs of the chair and a brief struggle for the chair ensued. Respondent took the chair away from Arthur Brown. During the struggle for the chair, Arthur was struck in the forehead by the plastic portion of the chair, but he suffered no meaningful injury. Respondent did not use excessive force in dealing with Arthur. Respondent's defensive reaction to this situation was reasonable and necessary to protect himself and possibly others from this student. 1/ On a date during the 1990-91 school year prior to November 2, 1990 2/, an incident occurred in Respondent's classroom involving Respondent and Vincent Bennett, a disruptive student who had been assigned to Respondent's alternative education class. Vincent was playing near the classroom door when Respondent told him to sit down. When Vincent failed to sit down, Respondent seized Vincent's arm and tried to redirect the student. Vincent began to struggle with Respondent and broke free of his grasp. Vincent began to run around Respondent flailing his arms and hitting Respondent. Respondent reacted by striking Vincent in the upper chest with the back of his hand. Vincent fell to the ground and began to cry. Although Vincent became mad as a result of that incident, there was no evidence that Vincent was injured by Respondent. It is concluded that Respondent's reaction to the attack by Vincent was reasonable and that Respondent did not use excessive force in responding to that situation. 3/ There was testimony that Respondent grabbed Vincent and Arthur by the arm on other occasions. There was, however, no showing that Respondent used excessive force in dealing with Vincent or Arthur on these other occasions or that he engaged in unacceptable conduct. There was testimony that Respondent grabbed or pushed other students in the class, including Lasavo Darkins, Marcus Hollis, Elijah Wadley, and Latraveus Dardy. The evidence established that Respondent's contact with these students occurred while the students were misbehaving and was an attempt to redirect the students. The testimony pertaining to these incidents otherwise lacks factual detail and does not establish that excessive force was used by Respondent. This vague testimony is insufficient to base a finding of wrongdoing on the part of Respondent. There was no evidence that Respondent's method of dealing with these students constituted professional misconduct. There was conflicting testimony as to whether Respondent improperly used profanity in front of the students in his classroom. Based on the greater weight of the evidence, it is found that Respondent did not address his students in profane terms and that he did not otherwise improperly use profanity in front of the students in his classroom. On February 20, 1991, Respondent received a written reprimand from Ruthann Marleaux, the principal of NCES, which provided, in part, as follows: You are hereby officially reprimanded for the following violations of your professional contract responsibilities: Failure to: "Maintain a safe and orderly learning environment...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. Respondent received an annual evaluation of "unacceptable" from his principal for the 1990-91 school year. Respondent testified that this evaluation was subsequently changed to acceptable. Although the subsequent evaluation was not introduced into evidence, the testimony of Respondent is accepted since his testimony is consistent with his continued employment as a teacher in the public schools of Dade County, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint. RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of February, 1992.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
