The Issue The issue in this proceeding is whether Petitioner, St. Lucie County School Board, has just cause to terminate Respondent's employment.
Findings Of Fact Based on the evidence presented at the hearing, the undersigned credits and makes the following findings of material and relevant facts: Lockridge has been employed by the School Board and last worked as an ESE behavior technician at Northport K-8 School. Pet. Exh. 1. Lockridge is a continuing status employee covered under the Collective Bargaining Agreement ("CBA") between the School Board and the Classroom Teachers' Association Classified Unit ("CTA/CU"). Resp. Exh. 6. The CTA/CU consists of behavior technicians, paraprofessionals, bus paraprofessionals, and clerical staff. Tr. II, p. 180, lines 10-14. During the 2014-2015 school year, Lockridge was assigned to Teacher Amber McDonald's self-contained classroom for intellectually disabled students at Floresta Elementary. The intellectually disabled classroom is for students with emotional disorders and students with an intelligence quotient ("IQ") under 69. Tr. I, p. 51, line 25-p. 52, line 2. For the 2014-2015 school year, there were five adults working in Ms. McDoanld's classroom: Randolph Lockridge, behavior technician; Sharon Koen, paraprofessional; Stephanie Ludwig, paraprofessional; Ms. McDonald, classroom teacher; and Deborah Ramsingh, student teacher. Tr. I, p. 52, line 24-p. 53, line 7. There were approximately 12 students in the classroom. Tr. I, p. 53, lines 8-10. Student D.S. was an eight-year-old ESE student whose primary disability is intellectual. D.S. is non-verbal and has Down's syndrome. Pet. Exh. 7. Because of his disability, D.S. is limited to two-word utterances "here and there." He has an IQ below 60 and intellectually he is on about a one and one-half- year-old level. Tr. I, p. 54, lines 10-17. September 8 and 9, 2014, Incidents with D.S. On September 8, 2014, Ms. Ramsingh was engaged in a lesson with the students on using crayons, teaching them how to hold the crayons and how to draw on the paper. D.S. kept taking his crayons and throwing them on the floor. She observed Lockridge take the student's hand and press his fingernail into the palm of D.S.'s hand. The student screamed "ow" and pulled his hand back. Tr. I, p. 34, lines 9-18. Lockridge looked at him and asked, "Why are you crying, what's wrong?" Tr. I, p. 35, lines 14-15. Ms. Ramsingh reported what she saw the following day to Ms. McDonald, the supervising teacher in the classroom. Tr. I, p. 35, line 25-p. 36, line 12. On September 9, 2014, when Lockridge and D.S. returned to the classroom from physical education ("PE"), Ms. Ramsingh observed another interaction between them. D.S. had his crayons, and he threw them on the floor again. Lockridge took his hand and pushed his fingernail into the palm of the student's hand again. He said "ow" again, but continued to throw his crayons on the floor. Lockridge pressed his finger into the student's hand a second time. The student said "ow" again. When Lockridge realized Ms. Ramsingh was looking at him, he commented, "I shouldn't do that, they don't like when I do that, some people think it is abuse." Tr. I, p. 36 line 22-p. 37 line 9. Ms. Ramsingh went to Ms. McDonald and told her that Lockridge put his fingernail in the student's hand two more times, and she told Ms. McDonald the statement that Lockridge made. Tr. I, p. 38, lines 12-18. Ms. McDonald left the classroom to report it. Tr. I, p. 38, lines 17- 20. Ms. Ludwig took D.S. into the restroom and yelled for Ms. Koen to come into the restroom. Tr. I, p. 39, lines 14-18. Ms. Koen told Lockridge to get Ms. McDonald. Tr. I, p. 40, lines 9-14. The staff had ice packs on D.S. Tr. I, p. 40, lines 21-23. Ms. Ramsingh observed the fingernail marks in D.S.'s hand and the ice that the staff was putting on D.S.'s wrist. Tr. I, p. 47, lines 5-9. Ms. Ramsingh gave a statement to law enforcement the following day. Tr. I, p. 41, lines 3-7; Pet. Exh. 4. She also provided a statement for the School Board's investigation. Pet. Exh. 7. Ms. McDonald testified about what she observed on D.S.'s body (after the student had returned from P.E.). She described it as a fresh bruise about three to four inches on both of D.S.'s wrists; it looked like he had a hand mark on both his wrists, and it was purplish already. Tr. I, p. 55, lines 5-11. D.S. did not have any bruises on his body before he went to PE. Ms. McDonald asked Lockridge what happened. Lockridge said he did not know, "maybe he fell." Tr. I, p. 56, lines 1-2. Lockridge said he had to help D.S. walk. Tr. I, p. 56, lines 5-6. D.S. did not have any bruising on his body when he left the classroom for PE. But, he returned with bruises on his wrist, and Lockridge was responsible for supervising D.S. while he was at PE. Tr. I, p. 73, lines 17-25. Ms. McDonald testified that her observation of Lockridge was that there were a lot of times he was loud and instead of de-escalating a situation, he would often escalate it. Tr. I, p. 59, lines 1-3. There were parents of children that Lockridge had worked with who had concerns about Lockridge. As a result, Ms. McDonald restricted him from working with specific students in the classroom. Tr. I, p. 58, lines 4-5 and lines 15-18. As a behavior technician, Lockridge was trained in Crisis Prevention Intervention (CPI). Pet. Exh. 20 and Exh. 23. The purpose of CPI is to de-escalate a situation before it ever comes to the point of having to restrain a child. Tr. I, p. 59, lines 4-8, and p. 59, lines 12-14. Ms. McDonald testified that de-escalation means to approach the student and get them to calm down, to breathe. Tr. I, p. 60, lines 1-6. Ms. McDonald also testified that it is not appropriate to restrain a child by the wrist where bruising would be caused. Tr. I, p. 62, lines 21-24. If the child begins to resist, "the teacher should not move, but should stand there until the child is ready to move." Tr. I, p. 64, lines 2-4. Lockridge provided a statement to the principal regarding the September 9, 2014, incident with D.S. Pet. Exh. 9. Law enforcement was contacted. Tr. I, p. 56, lines 14- 15; Pet. Exh. 4. On September 10, 2014, the school security officer, Frank Sisto, notified Maurice Bonner, executive director of Human Resources, of Ms. Ramsingh's report. Pet. Exh. 11. On September 10, 2014, Mr. Bonner hand-delivered a Formal Notice of Investigation and Temporary Duty Assignment to Lockridge and also verbally notified Lockridge of the allegations. Pet. Exh. 6; Tr. II, p. 171, lines 23–p. 172, line 11. Lockridge was temporarily assigned to the ESE office pending an investigation. On March 19, 2015, the School Board's internal investigation concluded. Pet. Exh. 7. On May 1, 2015, Mr. Lockridge received a Letter of Reprimand from Mr. Bonner and was reassigned to Northport K-8 School as a behavior technician. Pet. Exh. 15. Involvement by Mr. Maurice Bonner Mr. Bonner testified that he discussed Lockridge's conduct and his expectations concerning future conduct with Lockridge. Specifically, Mr. Bonner explained to Lockridge that inappropriate discipline of students was not acceptable behavior and that he was to cease and desist from any type of such discipline in the future. Tr. II, p. 174, line 15-21. As executive director of Human Resources for St. Lucie County Public Schools, Mr. Bonner is in charge of the hiring process for applicants, in charge of records for the school district employees, supports administrators in the discipline process, works with employees on leave, interprets School Board policy, and provides support to the superintendent and the School Board members. Tr. II, p. 168, lines 12-17. Mr. Bonner is responsible for applying and enforcing School Board Policy Chapter 6.00, Human Resources. Tr. II, p. 169, line 24–p. 170, line 4. When an allegation of inappropriate conduct or violation of School Board policy is made for an individual who interacts with students, and if it rises to the level of institutional abuse, the school district's protocol is for the School Board administrators to contact the Department of Children and Families, law enforcement, the human resources administrator, and then the parent. Tr. II, p. 171, lines 5-15. After Lockridge was assigned to Northport K-8 School on May 1, 2015, there was another incident involving Lockridge and a disabled student, V.S.I. Tr. II, p. 175, lines 14-18. On January 20, 2015, when Lockridge said he did not want to give any further statement, he and Victoria Rodriguez, his union representative, asked for a copy of the incident report from the law enforcement officer. Tr. II, p. 179, lines 21– p. 180, line 3. The School Board provided the incident report to Lockridge and Ms. Rodriguez, and Lockridge wrote a statement. Pet. Exh. 10. Lockridge said he was too nervous (about the meeting) and he did not want to sit down and answer questions. But, he eventually wrote his statement after reviewing law enforcement's incident report while his union representative was present. Pet. Exh. 10; Tr. II, p. 182, line 6. By letter dated June 29, 2015, Superintendent Genelle Yost informed Lockridge that she intended to recommend to the School Board that he be terminated. Pet. Exh. 22. Mr. Bonner, in his conversation with Lockridge regarding the first incident (with Student D.S.), warned and instructed Lockridge to not use inappropriate discipline on students. Despite this warning, a few weeks later at Northport K-8 School, Lockridge used inappropriate discipline on a student again. Mr. Bonner, as an administrator, had given Lockridge a previous directive that was not followed. In Mr. Bonner's professional opinion, that constituted insubordination. Tr. II, p. 185, lines 17–p. 186, line 1; Pet. Exh. 24. Mr. Bonner testified that sitting on a student's hands is not appropriate discipline. It is not an appropriate method of restraint of a student. Tr. II, p. 186, lines 5-9. In addition, it constitutes a violation of the code of ethics of the standards for employees in the education profession, putting students in danger of harm. Mr. Bonner stated that "We're in charge of their health, welfare and safety and that's not meeting that standard." Pet. Exh. 24; Tr. II, p. 186, lines 10-14. Commenting on the incident involved, Mr. Bonner felt that "sticking a thumb down in a student's palm" was indecent conduct and can be considered abusive to a student. Tr. II, p. 186, lines 21–p. 187, line 1; Pet. Exh. 24. In his opinion, Lockridge's conduct constituted unsatisfactory work performance since he had harmed a student. He also felt it constituted neglect of duty and violation of any rule, policy, or regulation. Tr. II, p. 187, lines 5-18; Pet. Exh. 24. Mr. Bonner explained how progressive discipline works: We have several steps that we can use as far as disciplining employees based on their conduct and based on the severity . . . if we believe that the incident or the behavior is severe enough, we can skip steps . . . we can start immediately with termination if it's severe enough. If we don't believe it is severe enough to go that way, then we go down that continuum--a letter of concern, letter of reprimand, suspension or termination. Tr. II, p. 191, lines 7-23. When you look at progressive discipline, you have to look at what the previous action is. If you're going to look at multiple offenses of the same nature, you can't discredit that. T. II, p. 193, line 23–p. 194, line 2. In Mr. Bonner's opinion, Lockridge's second incident of sitting on a child's hand is "also abusive and discourteous conduct, it's immoral and indecent, it's negligent because he was told not to use inappropriate discipline, it's unsatisfactory work performance, and it's a neglect of his duty because it's not proper protocol or training for restraint of a student. His conduct is also a violation of the rules, policies, and regulations." Tr. II, p. 194, lines 3-10; Pet. Exh. 24. Lockridge had a duty and responsibility, and he failed to discharge that duty knowingly, and that was negligence, in Mr. Bonner's opinion. Tr. II, p. 194, lines 23-25; Pet. Exh. 24. Lockridge knew that sitting on a child's hands was not a proper restraint technique under the CPI training that he has received as a behavior technician for the St. Lucie County Public School System. He was told, based on a previous instruction, that sticking his thumb down in the student's hand was not appropriate discipline or restraint of a student. He knew that what he was doing was not appropriate and that it did not meet the standards of the St. Lucie County Public School System nor the training he received. Tr. II, p. 195, lines 11-23. Mr. Bonner told Lockridge when he gave him the Letter of Reprimand that if Lockridge violated any of the School Board policies again, more severe disciplinary action could be taken. Tr. II, p. 197, lines 13-22. The standard for skipping steps in progressive discipline is based on the employee's behavior. Tr. II, p. 198, lines 12-15. "It is on a case by case basis . . . if you did something very egregious, we don't have to start at the beginning of that continuum. Based on the behavior of the employee then [sic] dictates where we go on to that continuum." Tr. II, p. 198, lines 17-23. May 19, 2015, Incident with V.S.I. Jennifer Staab was a behavior technician at Northport K-8 School. Tr. I, p. 80, lines 1-6. Ms. Staab was certified in CPI. Tr. I, p. 81, lines 5-9. She worked with students in an emotionally behaviorally disturbed ("EBD") classroom on May 19, 2015. It is a self- contained classroom. Tr. I, p. 82, lines 1-7. On May 19, 2015, there were eight or nine students in the EDB self-contained classroom. Tr. I, p. 82, lines 11-14. There was only one way into the desk; the desk was pushed up against the computers. Tr. I, p. 83, lines 11-15. Ms. Staab heard a slap and that drew her attention to that direction. Tr. I, p. 84, lines 5-8. Lockridge was sitting on the desk; his back was towards V.S.I. Tr. I, p. 84, lines 11-12. V.S.I. was sitting in the desk. Tr. I, p. 84, lines 14-18. When Lockridge got off of the desk, Ms. Staab noticed deep indentations, at least two or three of them, on the student's one arm. Tr. I, p. 85, lines 22–p. 86, line 5. Ms. Staab concluded that Lockridge had to have been sitting on V.S.I.'s hands. Tr. I, p. 86, lines 16-18. From the way behavior technicians are trained, Ms. Staab considered Lockridge being seated on the desk and trying to prevent the student from getting out of the desk, to be an inappropriate restraint. Tr. I, p. 87, lines 14-22. If the student is not a threat to themselves or others, then physical restraint is not appropriate. Tr. I, p. 89, lines 15-18. While doing a single-hold restraint, the adult is behind the child. Tr. I, p. 93, lines 1-4. Ms. Staab never observed Lockridge behind the child. Tr. I, p. 93, lines 5-7. Ms. Staab noticed two indentations on V.S.I.'s arm, about three inches long. Tr. I, p. 93, lines 8-19. Testimony of Randolph Lockridge Ms. Staab did not witness V.S.I. trying to elope or run from the classroom. Tr. I, p. 98, lines 22-24. Lockridge admitted that he took hold of V.S.I.'s wrists, causing bruising to her wrists. Pet. Exh. 16; Tr. II, p. 213, lines 6-9. From Lockridge's perspective, "it was crisis because she was not being safe . . . she was 'not complying' with his verbal direction." (emphasis added). Tr. II, p. 213, lines 19-23. Lockridge argued that V.S.I. exhibited behavior, i.e. her elopement, that might harm other students. Tr. II, p. 213, line 24–p. 214, line 5.1/ Lockridge testified, without specific detail, that V.S.I. "could have hit, kicked, maybe spit on somebody or something." Tr. II, p. 214, lines 7-10. Lockridge testified that he was holding V.S.I.'s wrists when he was sitting on them. Tr. II, p. 215, lines 4-6. Despite his training, Lockridge testified that he did not understand that it was an inappropriate method of discipline for him to be sitting on V.S.I.'s hands. Tr. II, p. 215, lines 11-13. Lockridge testified that he did not intentionally violate any School Board policies or intend to violate any directives that he was given. Tr. II, p. 220, line 24–p. 221, line 3. This appeared, in part, to be the crux of his defense to the charges brought. Lockridge testified that when the incident was happening at Northport K-8 School with V.S.I., he reverted to and used his "military restraint training," instead of his School Board restraint training. Tr. II, p. 222, lines 15-17. Lockridge testified that he did not bring up this issue of his military training "kicking in," as he put it, concerning the incident involving V.S.I. However, he discussed it before with a behavior analyst concerning another student. Tr. II, p. 230, lines 19-21, and p. 231, lines 18-20. Lockridge related an incident that had occurred in May 2015. Apparently, a student tried to assault him while he was walking back to the ESE office. His old military restraint training came into play, and he ended up having to put the student on the ground. He physically put the student on the ground. Tr. II, p. 232, lines 12-16, and p. 233, lines 4-11. In a candid admission, Lockridge testified that he does not believe that "at this moment" he could work with disabled students at the school district as a behavior technician. Pet. Exh. 12; Tr. II, p. 236, lines 21-24. Describing his military restraint training (that he sometimes reverts to), Lockridge testified that because he was going to be working with prison detainees, "They taught us various techniques to keep yourself safe and try not to do harm to the prisoners either." Tr. II, p. 237, lines 17-22. Lockridge testified that, unlike CPI training, military restraint training is not non-violent training. It could be violent. Because, as he put it, you are working with prison detainees. So, Lockridge could not say it was non-violent. Tr. II, p. 237, line 23–p. 238, line 3. When asked if it is foreseeable that he could become violent with a student, Lockridge answered, "I don't know. . . . I understand what I did was wrong. I don't know how I could have done some things differently. I don't know." Tr. II, p. 238, lines 4-8. When asked if he can say with any degree of certainty that he may not pose a danger to students, Lockridge testified that, "if I'm put in a stressful situation with a very aggressive student or that I perceive to be aggressive, I do what I think is best for my safety at the time. Or the student's safety too." Tr. II, p. 238, lines 14-24. Lockridge testified, frankly, that for him, it is sometimes more of an automatic response and that he cannot really control this military restraint training that kicks in. Tr. II, p. 238. line 25–p. 239, line 3. Testimony of Virginia Snyder Virginia Snyder works for the Department of Children and Families as a child protective investigator. Tr. I, p. 153, lines 6-8. She prepared a report of institutional abuse, an investigative summary. Pet. Exh. 2.; Tr. I, p. 153, lines 13-25. Her investigation and report involved Lockridge sitting on V.S.I.'s hands to restrain her in the classroom at Northport K-8 School. Tr. I, p. 154, lines 21-25. She went to the school, talked with administration, talked to witnesses, and talked to children involved on the report. Tr. I, p. 154, lines 3-9. Ms. Snyder made verified findings for "threatened harm of physical injury." Tr. I, p. 154, lines 11-16. Ms. Snyder concluded that Lockridge had in fact sat on the child's hand. Tr. I, p. 155, lines 2-4. She also made a finding that the school district's policies and practices were appropriate. Tr. I, p. 155, lines 15-17. "Threatened harm" means the possibility that the person's actions can cause an injury to the child. Tr. I, p. 155, line 23–p. 156, line 1. Ms. Snyder testified that the Department of Children and Families felt that a pattern was appearing due to a prior investigation that was closed without a substantiated finding. When the Department of Children and Families conducted an institutional staffing, the Department of Children and Families was concerned that there was a pattern starting. Tr. I, p. 157, lines 4-8. Specifically, Ms. Snyder "looked at how Lockridge restrained the child, was it appropriate or was it inappropriate . . . . And that is where we established that there was a type of behavior, a pattern starting." Tr. I, p. 157, line 20–p. 158, line 2. "We (DCF) don't make the recommendation. We make the report so that those involved can have a copy of an official report from the Department of Children and Families. We put the findings in there so that whoever administrative-wise is taking a look at it can make a decision, like the School Board, as to what penalty that staff member may face." Tr. I, p. 159, lines 17-24. Based on Department of Children and Families legislation, she felt that the two incidents are "a pattern" and are not reflective of just isolated events. Tr. I, p. 162, lines 1-5, 16-17. Testimony of William Tomlinson Bill Tomlinson is the executive director for Student Services and Exceptional Student Education. Tr. I, p.112, lines 4-5. He has worked for the School Board a total of 29 years. Tr. I, p. 112, lines 13-14. Tomlinson testified regarding whether behavior technicians are trained in any sort of restraint or CPI. He testified that the school district has two separate models that are used in the district. The first is non-violent crisis prevention intervention, better known as CPI. The second model the district uses, for more severe children that may be in a special day school, is professional crisis management. Non- violent CPI is a nationally recognized model that deals primarily with strategies to verbally de-escalate behavior. It employs different levels of strategies with students before getting into physical management of any type of behavior. The physical management piece is a part or a component of the training, but it is really the last resort. In his opinion, "that (i.e., physical management) should be last." Tr. I, p. 114, lines 4-21. It is meant to be a process in which the teacher tries to curtail the behavior of the student by working with them to help them self-regulate so that the student can take ownership of his/her behavior and get themselves under control without the teacher having to do any type of physical management. Tr. I, p. 115, lines 8-16. "Many teachers, many principals have all been trained in this method so that they understand how to de-escalate behavior verbally, how to work with students to offer choices that you can do, versus doing this." Tr. I, p. 115, line 24. Tomlinson noted that "restraint" is a term used "whenever we physically manage a person . . . the way we define it is if you have to immobilize someone's limbs and they're not free, they no longer have freedom of movement, that would be considered a restraint." Tr. I, p. 116, lines 5-10. In his opinion, restraint of anyone is the last resort. Tr. I, p. 117, line 7. He added that "if you see that the behavior is something that you can verbally begin to de-escalate, have conversation with the child, the child is able to understand rationally what it is that you're asking of them, then you're going to employ all of these strategies before you ever get to that last resort." Tr. I, p. 118, lines 4-9. Any time an employee in the district has involvement with a child and there is a report of suspected institutional abuse, Tomlinson is notified. Mr. Bonner (Human Resources) is notified, and he, law enforcement, and the Department of Children and Families all work through the process together. Tr. I, p. 122, lines 16-23. Lockridge was removed and placed in the ESE department, working in the reception area where there was no access to children while the investigation was ongoing. Tr. I, p. 123, lines 6-11. Freedom of movement is good (the child likes the freedom of running off and playing on a playground or during PE) as long as they are safe. Tr. I, p. 126, lines 19-23. "If we end up bruising the child in anything that means to us that we have applied the wrong process or the wrong procedure." Tr. I, p. 127, lines 4-8.2/ "If the child starts fighting back in the process where there is restraint used, they're trying to get out of that, you need to let them go. You may have to resume the restraint once it is safe to do so." Tr. I, p. 127, lines 9-11. "If the child isn't hurting anybody . . . from crawling under (the desk) or crawling out of their desk . . . then it would be appropriate to not bring attention or get attention from someone. Instead, praise another child for acting appropriately or remaining in their chair. This is an effective approach to use." Tr. I, p. 128, lines 3-25. It is "absolutely not appropriate," in terms of restraint, to sit on a child's hand. Tr. I, p. 129, lines 1-3. It is not appropriate to take a disabled child by the wrist to try to get them to go where you want them to. The first appropriate response is "take my hand and let's walk." Tr. I, p. 131, lines 17–p. 132, line 3. Tomlinson testified, "I may take a person simply by the elbow and follow me. . . . That . . . is after you have exhausted the verbal demand for this. Because it's unnatural to have to do that, to lead people or to pull them where you want them to go." Tr. I, p. 132, lines 14-24. The January 13, 2012, mid-year review for Lockridge shows improvement needed in job knowledge and skills and quality of work. Resp. Exh. 5; Tr. I, p. 143 line 25–p. 144, line 2. Listed on Lockridge's mid-year evaluation at the time was that he needed improvement in job knowledge and skills and the quality of work. The narrative indicated that he was required to work with the behavior analyst at Sam Gaines School to review the appropriate protocols to follow to gain compliance from the students with whom he is working. Lockridge was required to attend training offered behavior technicians on early release and professional development days. Tr. I, p. 149, lines 6-14; Pet. Exh. 19. Lockridge was directed to increase his knowledge of behavioral tools to verbally de-escalate a situation, as well as to remain objective instead of entering into a verbal disagreement with students. It means not getting into a verbal power struggle with the child. "Be calm, relaxed in the tone and tenor of your voice and, whenever you work with the individual, don't let that person bring you into the type of behavior that they're exhibiting." Tr. I, p. 149, line 4–p. 150, line 4; Pet. Exh. 19. Finally, Tomlinson testified that it would not be appropriate for a behavior technician to drive their fingernail into the palm of any child. Tr. I, p. 150 lines 5-9.
Recommendation Based on the foregoing proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the St. Lucie County School Board terminating Respondent from his position as an ESE behavior technician. DONE AND ENTERED this 4th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2016.
The Issue The issue presented is whether Respondent's employment by the School Board should be terminated.
Findings Of Fact At all times material hereto, Respondent Robert F. Ward was employed by the School Board as a teacher and was assigned to Richmond Heights Middle School, pursuant to a professional service contract. Willie Harris was the principal of Richmond Heights from 1988 to 1995. During those years, Harris gave Respondent verbal directives to follow School Board rules concerning the discipline of students. As punishment, Respondent inappropriately used excessive writing and standing and inappropriately placed students outside the classroom. Each time Respondent was warned that he was violating School Board rules in his methods of disciplining students, he would stop using those methods for a while but would then return to those methods and be warned again. Harris found it necessary to counsel Respondent every year. Principal Harris learned that Respondent responded better to male authority figures than to female authority figures. He, therefore, gave Respondent directives himself or through male administrators. Mona Bethel Jackson became the principal of Richmond Heights in July 1997. On October 2, 1998, Denise Franze, a parent, submitted a written complaint to Principal Jackson concerning Respondent's behavior at the school's Open House because Respondent appeared to be a very angry person. He spent the entire time that he met with her and other parents complaining about the school. She requested that her child be transferred out of Respondent's class. Respondent wrote her a very insulting, unprofessional response letter. His letter did not reflect credit upon himself or the school system. On November 17, 1998, Respondent left his class unsupervised, and two students became involved in a fight. Respondent was directed to properly supervise his class and was directed not to place any students outside his class unsupervised. At a faculty meeting on January 13, 1999, Principal Jackson reviewed School Board policies prohibiting inappropriate language/teacher conduct. At a faculty meeting on February 16, 1999, Jackson reviewed School Board procedures regarding the supervision of students. On March 26, 1999, student D. L. was being disruptive. Respondent told her to go outside the classroom. Because it was raining, D. L. refused to leave. Respondent again ordered her to go outside and called her "dumb." He then left his class unsupervised to deliver a memorandum regarding D. L.'s behavior to the school administrators. An assistant principal directed Respondent not to leave his class unsupervised. On March 30, 1999, Respondent was inside his newly- assigned portable classroom, by himself, writing on the board. An assistant principal asked Respondent where his students were, and Respondent answered that he did not know. Some of Respondent's students were found outside the portable classroom unsupervised, and others were found in the auditorium also unsupervised. Also on March 30, Respondent used the words "hell" and "damn" while aggressively reprimanding D. L., shouting at her, and shaking his fingers in her face. Respondent was reminded that School Board rules prohibit unseemly conduct and the use of abusive and/or profane language in the presence of students. On April 1, 1999, a conference-for-the-record was conducted with Respondent to address his failure to supervise his class, his inappropriate reprimand of a student, his lack of emergency lesson plans, and related matters. As a result of the conference, Respondent was rated unsatisfactory in professional responsibilities and was provided with a prescription to address his deficiencies. The prescription was to be completed by June 16, 1999. If done properly, the prescription should have taken no more than three weeks to complete. At the conference, Respondent was also directed to follow school procedures for the removal of disruptive students from class, to not leave students unsupervised at any time, to not expose students to unnecessary embarrassment or disparagement, to prepare lesson plans each day, to replenish emergency lesson plans, and to exercise the best professional judgment and integrity. He was warned that failure to comply with these directives would be considered insubordination and could lead to further disciplinary action. Respondent was given a copy of the School Board's employee conduct rule and the Code of Ethics of the Education Profession in Florida. On April 22, 1999, Respondent failed to report to the media center at the conclusion of a teacher workshop as directed in writing prior to the workshop and, again, at the beginning of the workshop. Respondent's annual evaluation for the 1998/99 school year was unsatisfactory due to Respondent's deficiencies in the area of professional responsibility. On June 16, 1999, Respondent's prescriptive activities were deemed unacceptable because they were careless, sarcastic, and unprofessional. Respondent admits that the prescriptive work he turned in to Principal Jackson was inappropriate. Respondent did not take his prescriptive activities seriously and did not attempt to benefit from them. On June 18, Principal Jackson directed Respondent to re-do his prescriptive activities and turn them in by October 1, 1999. Because Respondent ended the school year in an unacceptable status, his salary was frozen and he was precluded from summer school employment. Respondent assigned two students to detentions to be served before school on September 15 and 16, 1999. The students arrived at approximately 7:15 a.m. both days. At 8:00 a.m., Respondent had not yet arrived to supervise them on either day. When the bell rang at 9:00 a.m. to begin the school day, Respondent was still not there. One child's grandmother, who was concerned about the children not being supervised, complained to the school administrators. September 20, 1999, was a teacher planning day. Respondent was not present during his assigned work hours, 8:00 a.m. to 3:30 p.m. An "all call" for him was made over the public address system at 9:28 a.m., which went throughout the school. Respondent did not respond. An assistant principal checked his classroom, but Respondent was not there. She was unable to locate his car in the parking lot, and he had not signed the attendance roster. When Respondent arrived at approximately 10:00 a.m., he told Principal Jackson that he was not in the building because he had stopped at Publix. At the final hearing, Respondent testified that he was probably in the wood shop working on a personal project during his work hours when the "all call" announcement was made for him. Respondent failed to complete his prescription by the October 1, 1999, deadline. A conference-for-the-record was held on that date to address parental complaints about Respondent. The complaints involved the unsupervised detentions, Respondent's requiring students to stand for almost two hours as punishment, and Respondent's requiring students to write essays as punishment. Parents also complained that Respondent punished the entire class when only one student misbehaved. Respondent admitted that he administered those punishments. Respondent was directed to refrain from having students write essays for punishment, to refrain from having students stand for punishment, to refrain from assigning detentions when students would not be supervised by Respondent, to not expose students to unnecessary embarrassment or disparagement, and to follow all directives previously given to him. Since Respondent was already on prescription and had failed to complete the prescriptive activities by the October 1 deadline, Principal Jackson directed Respondent to complete his prescription by January 26, 2000. Respondent was warned that failure to comply with the directives would be considered insubordination and could lead to further disciplinary action. He was again provided with a copy of the School Board's employee conduct rule. On October 13, 1999, a conference was held with Respondent to discuss complaints from three parents. The complaints were that Respondent did not give clear directions to the students, that he had humiliated a student, that he required students to write essays as punishment, and that he was assigning math as punishment to his social studies students. The parents complained that Respondent was using academics as punishment. Principal Jackson directed him to stop humiliating students, to stop intimidating students, and to provide in-class assistance. She also directed Respondent to stop assigning math and requiring students to write repetitive "lines" as punishment. She directed Respondent to correct his grading practices and to not retaliate against any students. Respondent was given copies of the letters from the parents. The math that was assigned by Respondent was not an appropriate assignment for a sixth-grade geography class. The interim progress reports Respondent gave to his students corroborate that Respondent was using essays as punishment. After the conference, Respondent informed secretarial staff that he would be absent the next day, which was the day of the school's open house. Teachers have a contractual requirement to attend the school's open house. Respondent was not absent as a result of an illness or an emergency; rather, he simply decided to take a personal holiday on that day. On October 19, 1999, Respondent responded to a parental complaint with a letter that was unprofessional, demeaning, and insulting. His letter did not reflect credit upon himself or the school system. On October 29, 1999, Respondent was directed to report for a conference-for-the-record in the School Board's Office of Professional Standards on November 4, 1999. On November 2, 1999, Respondent attended a round-table discussion with a counselor, the parents of a student, the student, and all of that student's teachers. Respondent was abrasive to the student, loud, and intimidating. The student, who was communicative and comfortable before Respondent arrived at the meeting, was uncomfortable and would not speak while Respondent was present. After Respondent arrived, the student "clammed up," and his eyes "teared up." The next day, the student's father brought a letter to school reciting what had happened at the meeting and requesting that the student be transferred out of Respondent's class. The father and Respondent encountered each other in the school office, and Respondent invited the father to his classroom. While there, Respondent asked the father which grade the father wanted him to change. The father was surprised at Respondent's offer and explained to Respondent that he only wanted his son to get the grades his son deserved. On November 4, 1999, Respondent requested to leave school for a dental emergency. Since his conference-for-the- record was scheduled for that day, an assistant principal directed Respondent to submit documentation from his dentist to her or to the principal's secretary. Respondent failed to follow this directive in a timely fashion. Respondent was subsequently directed to comply with all directives given by his immediate supervisors. At Respondent's request, the conference-for-the-record was re-scheduled for November 9, and Respondent was directed to attend. Respondent did not attend the November 9 conference, which was scheduled to discuss his non-compliance with site directives, his performance assessment, parental complaints, and student complaints. As a result of the conference-for-the- record, which consisted of a review of Respondent's file, Respondent was directed to comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida, to provide an educational environment free from harassment and intimidation for all students, to not intimidate staff and faculty members, to use sound professional judgment at all times, and to use specific grading practices. He was warned that non-compliance with these directives could lead to further disciplinary measures. Respondent was provided with another copy of the School Board's employee conduct rule, the Code of Ethics, and the School Board's violence in the workplace rule. On December 15, 1999, a conference-for-the-record was held with Respondent to review his performance assessments and future employment status. Respondent was reminded that he was in his second year of unacceptable performance status, which if not remedied, could lead to termination of his employment. He was also directed to comply with the directives previously given to him by the Office of Professional Standards. He was warned that non-compliance with the directives could result in disciplinary measures. Respondent failed to comply with his prescriptive activities by January 26, 2000. On February 7, 2000, at 3:39 p.m., Principal Jackson directed Respondent to submit his prescriptive activities directly to her within 24 hours. This directive was reasonable since the Principal had repeatedly directed Respondent to complete his prescriptive activities since April 1999. Respondent refused to sign that he had received a copy of the memorandum memorializing this directive even after being directed to sign it. On February 8 Respondent did not come to work. Another teacher gave Respondent's prescriptive activities to the principal's secretary after 5:00 p.m. The principal did not accept the activities because neither of her directives had been followed: the prescriptive activities were not given directly to her, and they were turned in late. On February 17, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with prescriptive deadlines and to review his record and his future employment status. Respondent was reminded that if his deficiencies were not remedied, he could lose his job. Respondent was told that his failure to comply with the directives concerning his prescription was considered gross insubordination. Respondent was directed to place his prescriptive activities in the principal's hand by 12:30 p.m. the next day, February 18. He was warned that non-compliance would result in further disciplinary action. Respondent was absent from work on February 18, 2000, and did not attempt to give the documents to his principal until February 24 at 3:30 p.m. His principal refused to accept the package because it was so overdue. On February 28, 2000, Respondent was directed to report to a conference-for-the-record at the Office of Professional Standards at 9:00 a.m. on March 14, 2000. On March 13, 2000, Respondent was accused of battery and administering physically-demanding punishments to students. The investigation revealed that Respondent was still using inappropriate punishment and profanity with his students. The incidents described in paragraphs numbered 40-48 below were discovered. On March 2, 2000, Respondent called A. W. a "dummy," told him to "shut up," and ordered him to pull a heavy cylinder across the physical education field. The cylinder is a piece of equipment that is pulled by a tractor and used to flatten pavement. A. W. tried but could not comply. He was crying when he went to the school office, complaining that his hands hurt. Respondent ordered other students to pull or push the cylinder as punishment. Respondent also ordered students to push volleyball poles, or standards, which have tires filled with cement at the bottom. At the final hearing, Respondent admitted to administering this punishment one time. Respondent also ordered students to walk or run on the physical education field. At the final hearing, Respondent admitted to ordering students to walk to the far fence. Respondent ordered students to do "push-ups." At the final hearing, Respondent admitted he used "push-ups" as punishment at the election of the student in lieu of other discipline. Respondent ordered his students to move rocks located around his portable classroom. Respondent called the students derogatory names, such as "stupid," "dumb, dumber, and dumbest," and "imbecile." He told them to "shut up." In speaking with a security monitor, Respondent referred to one of his students as "a piece of shit." Respondent required his students to write essays and repetitive "lines" as punishment, which he admitted at the final hearing. He made his students stand for lengthy periods of time as punishment. At the final hearing, Respondent asserted that he only made them stand for 30-45 minutes. Respondent claims he was sending his students to "time-out" on the physical education field. Even if true, sending the students to the physical education field is not an appropriate time-out. It is humiliating and demeaning to the students, the students were not properly supervised, the students were not being educated, and the students were at risk of injury. The procedure for disciplining students at Richmond Heights was to counsel the student after the first violation, make contact with the parents after the second violation, and write a referral to the administrators after the third time. The School Board does not permit the physical punishment of students. On March 14, 2000, Respondent was two hours late for the scheduled conference-for-the-record. By the time he arrived, the other participants had left. He was directed to report for a re-scheduled conference at the Office of Professional Standards on March 27, 2000. On March 27, 2000, a conference-for-the-record was held with Respondent to address his non-compliance with site directives regarding prescription deadlines, student discipline, violation of the Code of Ethics and of professional responsibilities, violation of School Board rules, and his future employment status. Respondent was directed to comply with all previously-issued directives, to refrain from retaliating against students and staff, to use sound professional judgment at all times, and to comply with all School Board rules, the Code of Ethics, and the Principles of Professional Conduct for the Education Profession in Florida. On May 15, 2000, Principal Jackson observed Respondent outside of his classroom, with his back to his class, talking on the telephone. The class was noisy. No one was supervising his students. He was again directed not to leave his classes unsupervised. On May 22, 2000, a conference-for-the-record was held with Respondent to address the pending action by the School Board to take dismissal action at its meeting of June 21, 2000. On June 21, the School Board suspended Respondent without pay and initiated this dismissal proceeding against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Notice of Specific Charges, affirming Respondent's suspension without pay, and dismissing Respondent from his employment with the School Board effective June 21, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Stewart Lee Karlin, Esquire 400 Southeast Eighth Street Fort Lauderdale, Florida 33316 Madelyn P. Schere, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Roger C. Cuevas, Superintendent School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2018.
The Issue Whether Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Phillis Wheatley Elementary School (Phillis Wheatley) and Palm Springs Middle School (Palm Springs)), and for otherwise providing public instruction to school-aged children in the county. Respondent is now, and has been since October 1987, employed as a classroom teacher by the School Board. She holds a professional services contract. Respondent first taught for the School Board at Phillis Wheatley. In 1996, she moved to Palm Springs, where she remained until she was "assigned to a paid administrative placement at [the] Region Center I [effective October 4, 2007] pending the resolution of investigative case # N-85085" (referenced in paragraph 14 of the Notice of Specific Charges). Respondent has previously been disciplined by the School Board for using physical means to control student behavior. In 1992, following an investigation during which Respondent "admitted to placing tape on one student's mouth and telling the other to place the tape on his mouth" and "also admitted to hitting a student on the head with a dictionary and tapping another student on the hand with a ruler," she received the following "letter of reprimand" from her principal at Phillis Wheatley: On August 8, 1992, you were charged with conduct unbecoming a School Board employee and battery of students. You violated the Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida, and Dade County School Board Rule 6Gx-13-4A-1.21, "Conduct Unbecoming a School Board Employee." The above infractions were substantiated by the Special Investigative Unit, Case No. 92-00946. You are directed to comply with the procedures outlined in the Chapter 6B- 1.01(3), Code of Ethics of the Education Profess[ion] in Florida, to refrain from demeaning students, punishing them by taping mouths, touching or taping students to discipline them or to demonstrate affection, and to conduct yourself in a professional manner. Any recurrence of the infractions will result in further disciplinary actions. In 1995, Respondent was reprimanded for striking a student with a stack of papers and received the following "Confirmation of Administrative Action" from the Phillis Wheatley principal: Please be advised that after a complete investigation of Case Number 95-12689 done by this administrator the following guidelines must be reviewed with this administrator. Review the faculty handbook pg 18, on Corporal Punishment. Review a copy of School Board Rule 6Gx4A-1.21, Employee Conduct, and Chapter 6B-1.01(3), Code of Ethics of the Education Profession in Florida. You are to refrain from touching or tapping students to discipline them and you must conduct yourself in a professional manner at all times. Any recurrence of this infraction will result in further disciplinary action. In 2004, after determining that Respondent had "acted inappropriately" when, in anger, she had "grabbed" a student by the "hair yanking [the student's] head backwards," the Palm Springs principal issued Respondent the following written reprimand: On December 11, 2003, you inappropriately disciplined (a) student(s) while waiting in front of the cafeteria. You violated the Contract between the Miami- Dade County Public Schools and the United Teachers of Dade, Article VIII, Section 1. [a]s well as School and Miami-Dade County School Board Rules, 6Gx13-5D-1.07, Corporal Punishment, and 6Gx13-5D-1.08, Code of Student Conduct. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline a[re] outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.08, faculty handbook, and Promoting and Maintain[ing] a Safe Learning Environment document, and are referenced in the United Teachers of Dade Contract, Article VII, Section I. You are directed immediately to refrain from using any physical means to affect student behavior. You are directed immediately to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the documents above[]. The above infraction was substantiated by an Administrative Review, Case Number J08655. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are directed to implement immediately, approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. As a School Board employee, Respondent is expected to conduct herself in accordance with School Board rules, including the aforementioned School Board Rules 6Gx13-4A-1.21 and 6Gx13- 5D-1.07. At all times material to the instant case, School Board Rule 6Gx13-4A-1.21I has provided as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 has provided, in pertinent part, as follows: Corporal Punishment - Prohibited The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary action depending upon the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article V of the UTD Contract addresses the subject of "[e]mployer [r]ights." Section 1 of Article V provides, in part, that the School Board has the exclusive right to suspend, dismiss or terminate bargaining unit employees "for just cause." Article VIII of the UTD Contract addresses the subject of "[s]afe learning environment." Section 1.D. of Article VIII provides as follows: The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " In the instant case, the School Board is seeking to dismiss Respondent based on conduct in which she allegedly engaged during the 2007-2008 school year. While assigned to Palm Springs during the 2007-2008 school year, Respondent taught three periods of language arts to sixth and seventh grade Spanish-speaking ESOL students. She also had responsibility for a sixth grade homeroom class. Y. L., J. T., and I. M. were sixth grade students at Palm Springs during the 2007-2008 school year. They each had Respondent for homeroom and language arts for a brief time during the beginning of that school year. At all material times during the 2007-2008 school year, Respondent understood that the School Board had a policy "strictly prohibit[ing]" the use of corporal punishment. Nonetheless, on more than one occasion during this time period, Respondent used physical means to redirect Y. L. She grabbed him by the hair and pulled him by the arm, hurting him in the process. She also "grabbed other students by their arms" to control their behavior. Respondent made threats to throw Y. L. and other students out the window if they did not behave. Although Respondent had no intention of carrying out these threats, Y. L. believed that the threats were real and that Respondent meant what she had said. On one occasion, Respondent opened a window, had Y. L. stand next to it, and told him that if he moved at all, she would toss him out the open window. As a disciplinary measure, Respondent had Y. L. pick up his wheel-equipped book bag (filled with textbooks and notebooks for all his classes) and hold it on top of his head for an extended period of time while he was standing in place. Y. L. felt some discomfort in his shoulder when he did this. Afraid of Respondent, Y. L. often "hid[] in the bathroom" at school instead of going to Respondent's classroom. On numerous occasions, Y. L.'s mother had to pick him up from school before the end of the school day because he had vomited. At home, Y. L. had trouble sleeping and refused to eat. He lost approximately 20 pounds (going from 100 pounds down to 80). Y. L. was not the only student that Respondent directed to stand with a filled book bag on his head. J. T. and I. M. were also issued such a directive by Respondent. It happened the first week of the school year on a day when the students remained in their homeroom classes until dismissal because of a power outage that left the school without lights and air conditioning for much of the day. Towards the end of the day (after power had been restored to the school), J. T. and I. M. were talking to one another when they were not supposed to. In response to their transgression, Respondent instructed them to stand in separate corners of the classroom and hold their book bags (which were similar to Y. L.'s) on top of their heads.2 The book bags remained on their heads for a substantial enough period of time to cause them to experience pain. 3 Y. L., J. T., I. M., and their parents complained to the Palm Springs administration about Respondent's disciplinary tactics. In response to Y. L.'s and his mother's complaints, one of the school's assistant principals, Niki Ruiz, interviewed "randomly selected" classmates of Y. L.'s. These students "corroborated what Y. [L.] was saying." On September 26, 2007, the matter was turned over to the School Board's General Investigative Unit (GIU) for investigation. Respondent was removed from the classroom and placed on alternative assignment pending the outcome of the investigation. Following the GIU investigation, the matter was referred to the School Board's Office of Professional Standards. There was a conference-for-the-record held on February 6, 2008, at which Respondent had the opportunity to tell her side of the story. In her remarks, she expressed a disdain for authority when she said, "I'm very professional but I don't stick to rules." The School Board's Superintendent of Schools recommended that the School Board suspend Respondent and initiate termination proceedings against her. The School Board took such action at its May 21, 2008, meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for the reasons set forth above DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 16th day of December, 2008.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent, a Behavior Management Teacher (BMT), due to Respondent's inappropriate interaction with a student on April 16, 2014, as alleged in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a BMT at Allapattah Middle School (Allapattah), a public school in Miami-Dade County, Florida. Respondent has been employed by the School Board for approximately 14 years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the provisions of the collective bargaining agreement in effect between Miami-Dade Public Schools and United Teachers of Dade (UTD contract). During his employment with the school district, Respondent took a break from teaching to attend divinity school. He became a permanent teacher in 2007 and worked in Miami Senior High School. Respondent transferred to Allapattah in 2011 at the request of its assistant principal. During the 2011-2012 school year, Respondent served as a SPED reading, language arts, and math teacher. During the 2012-2013 school year, Respondent held dual roles as the SPED Chair and a SPED teacher. In November 2013, Respondent was offered and accepted the position of BMT at Allapattah. The BMT is considered the "first in line" to deal with a student who causes a disturbance in the classroom by behavior such as cursing or fighting. If called by a teacher to assist or a BMT observes a student acting out in such a way as to disrupt a classroom, the BMT intervenes to try and get both sides of the story regarding why the student is upset and tries to redirect or modify the student's behavior so that the student can remain in the classroom. If that is unsuccessful, the BMT removes the student to a special education classroom where the BMT uses other techniques, such as discussing respect, to calm the student. The BMT may also recommend an in- school or out-of-school suspension. Respondent was in a graduate program for guidance counseling when offered the BMT position. He accepted the position because he felt the BMT role would help him better understand the student population with emotional/behavioral disorders (EBDs). As the BMT, Respondent was assigned 30 students with severe behavioral issues. Respondent also continued some duties of the SPED Chair position until February 2014. Respondent received uniformly satisfactory performance evaluations throughout his teaching career with Petitioner. He was not previously counseled or disciplined for any reason. On April 16, 2014, Towanda Seabrook, the SPED Chairperson, entered a seventh-grade classroom for observation and saw two students being disruptive. N.H. was cursing the classroom teacher, and D.J. was talking with other students. Ms. Seabrook directed these students to leave the classroom and go with her to the SPED office/classroom. The SPED office/classroom is in Allapattah's classroom 1165. It is a large room with several work stations and a conference table that are used by the EBD counselors, teachers, and the BMT. Attached and opening into the SPED office/classroom are the offices of the SPED Chairperson and EBD counselors. After going with Ms. Seabrook to the SPED classroom, N.H. directed his profanity and ranting at Ms. Seabrook calling her a "motherfucker," "whore," and "bitch" and repeatedly saying "fuck you" to her. Ms. Seabrook attempted to defuse the situation by explaining that she is a mother and asking N.H. how would he like it if someone said these types of graphic things to his mother. Ms. Seabrook chose not to go "toe to toe" with N.H. because she was aware that his exceptionality, EBD, causes him to be unable to control his emotions and temper. N.H. is known to curse and use profanity directed at teachers. Despite N.H.'s continued use of graphic language, Ms. Seabrook felt she had the situation under control and attempted to complete some SPED paperwork. Respondent entered the classroom and heard N.H.'s barrage of profanity and aggression directed at Ms. Seabrook. Respondent was familiar with N.H. due to N.H.'s history of being disrespectful to teachers, running out of class, name calling, defiance, and fighting. Respondent worked with N.H. on an almost daily basis attempting to help N.H. stay in school and modify his behavior to facilitate learning. Respondent described N.H. as one of the most difficult students with whom he was assigned to work. Because the BMT is supposed to be the first line of response to a belligerent and disruptive EBD student, Respondent immediately tried to diffuse the situation by reasoning with N.H. N.H. proceeded to call Respondent (an African-American male) "Nigger," "Ho" (whore), "pussy," "punk," and repeatedly said "fuck you." This tirade by N.H. went on for almost 45 minutes. During this time, N.H. and D.J. sat at the conference table in the classroom. Throughout the 2013-2014 school year, Respondent had tried numerous strategies to assist N.H. in controlling his behavior and temper at school-–all with no success. On April 16, 2014, after listening to N.H. verbally abuse Ms. Seabrook and himself, Respondent decided to use an unorthodox strategy to get N.H. to understand the gravity of his words and to calm down. Respondent asked N.H. if he knew what "fucking" means. N.H. responded "a dick inside a pussy." Respondent replied, "A dick inside a pussy? Maybe if you were fucking you wouldn't behave this way," implying that if N.H. was having sex, perhaps he would be better able to control his emotions at school. Ms. Seabrook overheard this portion of the conversation and it made her uncomfortable so she left the room. She believed this method used by Respondent was inappropriate and not likely to be successful, and she intended to talk to Respondent about it before advising the principal. Notably, Ms. Seabrook did not feel the need to intervene or immediately report the conversation and testified that in response to N.H.'s provocation, she may also have said "fuck you" back to N.H. This graphic discussion was also overheard by Deborah Phillips, an EBD counselor, who was in an adjacent office with the door open. After N.H. called Respondent a "pussy," Respondent asked N.H. if he knew what one was, had ever seen one or knew what to do with one. Ms. Phillips did not intervene or report the conversation. According to Ms. Phillips, this extremely graphic and profane interaction between N.H. and Respondent was only a minute or two. Ms. Phillips testified that she would not go toe to toe with N.H. because she believed it would only elevate the behavior. While Respondent and N.H. were arguing, and Respondent asked N.H. to define the words he was using, D.J. used his cell phone to video and audio record approximately 25 seconds of the conversation. In the recording, Respondent is heard telling N.H. to spell "Ho." N.H. answered "hoe," and Respondent stated, "yea nigga-–that's what I thought." During the brief recording, D.J. is heard laughing in the background. The conversation had the desired effect. N.H. started laughing and immediately calmed down. Respondent was able to escort N.H. to the principal's office where it was decided that N.H. would not be suspended, but rather Respondent would drive N.H. home. During the ride home, N.H. was calm and there were no further incidents or inappropriate discussions. The following school day, D.J.'s mother brought the recording to the attention of the principal who initiated an investigation. Respondent immediately expressed remorse and regret that he used this unconventional method of defusing N.H.'s anger. Respondent admitted participating in the graphic dialogue and acknowledged that it was inappropriate. As a result of the investigation, Respondent was suspended effective June 19, 2014, without pay and recommended for termination from employment. Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent violated School Board Policy 3210, Standards of Ethical Conduct, but failed to demonstrate by a preponderance of the evidence that Respondent committed any of the other charged offenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing punishment consisting of suspension without pay from employment through the end of the first semester of the 2014-2015 school year for violation of School Board Policy 3210 that does not amount to misconduct in office. DONE AND ENTERED this 20th day of November, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2014.
Findings Of Fact Respondent, Anna M. Brewer, holds Teaching Certificate Number 475518, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of elementary education, grades 1-6. From 1968 or 1969 until 1980, Respondent worked for the School Board as a teacher aide. As a teacher aide, she had approximately twelve years to view a wide variety of teaching strategies, methods, and teaching techniques in the approximately six different schools to which she had been assigned. While employed as a teacher's aide, Respondent attended Miami-Dade Junior Community College, North Campus, and studied Initial Elementary Education. She then completed Bachelor's Training at Nova University in 1979 and thereafter became employed as a classroom teacher with the Dade County School Board at the Elementary Level beginning in the 1980-1981 school year. Respondent has been employed as an elementary teacher by Petitioner School Board since the 1980-1981 school year. During all of that period, she has taught at Perrine Elementary School in Dade County, Florida. During all of the years Respondent taught, except for the first year, she had classes approximately half of a regular size class. This was because she has been teaching Title I/Chapter I classes. "Title I", renamed "Chapter I", classes refer to classes funded and mandated as part of the Education Consolidation Improvement Act which targets children who are deficient in certain areas and concentrates on bringing them into the mainstream of the education process by concentrated remediation in small, directed education classes. It is a "given" that many of these children are difficult to teach and to control. 1980-1981 SCHOOL YEAR On October 29, 1980 Respondent was formally observed in the classroom by her principal, Gloria H. Gray. Although rated overall acceptable she was rated unacceptable in preparation and planning and in assessment techniques. Although rated acceptable in techniques of instruction, Respondent was rated unacceptable in one subcategory thereof because the proliferation of students' questions concerning the work indicated to the observer that the Respondent did not give clear assignments and directions to allow ample time for completion of tasks. Respondent was next formally observed by Principal Gray on December 12, 1980. Although Respondent was rated overall acceptable, she was rated unacceptable in classroom management because Mrs. Gray found much off-task behavior on the part of students, and Respondent appeared not to notice it. Through no fault of her own, Respondent had a very difficult first year experience with many interruptions. She was the foreman of the Grand Jury and was absent every Wednesday. In addition, she had legitimate family and medical problems causing frequent absences. To the extent possible, principal Gray initiated and followed through on numerous attempts to remediate Respondent's deficiencies in teaching. Mrs. Gray also provided an aide for Respondent in order to be assured that the education of her students was not being sorely neglected. Respondent was in a large pod with two other teachers. They helped Respondent in putting work on the board clearly. They also helped her in getting and using instructional material. Although Mrs. Gray testified that she was, in the spring of 1981, of the opinion that there was a repeated failure on the part of Respondent to communicate with and relate to the students in her classroom to such an extent that they were deprived of a minimal educational experience, she nonetheless rated Respondent acceptable in all categories and gave Respondent an overall acceptable rating on her Annual Evaluation for the 1980-1981 school year. Mrs. Gray gave Respondent the benefit of the doubt because Respondent had improved her teaching skills during the year, she had a good attitude toward trying to improve, she took Mrs. Gray's recommendations and attempted to implement them, and Mrs. Gray expected further improvement from Respondent the following year. Mrs. Gray further recommended Respondent for re-employment as an annual contract teacher. 1981-1982 SCHOOL YEAR Respondent was next formally observed in the classroom by her new principal Dr. Joan Hanley, on November 23, 1981. While Respondent was very devoted to self-improvement, she was nevertheless rated overall unacceptable and unacceptable in the category of preparation and planning because she did not have complete lesson plans for each of the following subjects she was responsible to teach: social studies, science, art, music, and physical education. Likewise, she did not have plans which could be used by a substitute in the event of her absence. Although she was rated acceptable in classroom management, Dr. Hanley offered suggestions for Respondent's improvement. It was not clear to Dr. Hanley whether Respondent's students were grouped for math. It is a standard instructional strategy to ascertain the ability levels of the students, group them accordingly, and plan separate instruction for the various groups. She also instructed Respondent to stand up and move between her groups of students in order to monitor the random activity that goes on. Respondent was formally observed in her classroom by Assistant Principal Ellen Supran on January 6, 1982. Although rated overall acceptable, Respondent was found unacceptable in one subcategory, techniques of instruction. This subcategory deals with the use of instructional strategies for teaching the subject matter. Her students were not grouped for math instruction and the subject matter was too difficult and too abstract for the students. Respondent was not getting feedback from them. During the remainder of the school year, Mrs. Supran assisted Respondent through informal visitations. On these occasions, Mrs. Supran was concerned about Respondent's lesson plans, her children being off-task, and the appropriateness of the tasks assigned to the students by Respondent. She spent time working with Respondent on lesson plans, materials, instructional strategies, grouping, and monitoring children's progress. Respondent had an accident during the 1981-1982 school year which resulted in extended sick leave. Dr. Hanley was unable to observe Respondent formally in the classroom for the remainder of that school year. Because Respondent was anxious to improve her teaching and because she had made a good start, Dr. Hanley felt that it was only fair to rate Respondent acceptable in all categories for her Annual Evaluation for the 1981-1982 school year. Therefore, for the school year 1981-1982, Respondent's second annual contract year, Respondent was found acceptable in all categories on her Annual Evaluation and was again recommended for employment. 1982-1983 SCHOOL YEAR Respondent's next formal observation was on November 23, 1982. Although rated overall acceptable, Respondent was rated unacceptable in knowledge of subject matter, because the observer, Dr. Hanley, felt Respondent needed improvement in grammar, particularly verb usage. More specifically, Dr. Hanley observed poor grammar was utilized orally by Respondent in the course of teaching other subjects. Hers was a significant error because Respondent was teaching a resource class in compensatory education. This is a remedial class which addressed the reading, language arts, and mathematics needs of low- achieving students. In every type of class, it is necessary that a teacher set a good example in spoken English. Because elementary school children model the speech of their teacher, Respondent's grammatical errors, which were frequent and excessive, would impede the students' acquisition of appropriate language arts skills. In remedial classes, the effect is more pronounced and reinforces poor language arts skills because the children are already deficient in that area. Respondent was next formally observed in the classroom by Dr. Hanley on December 7, 1982. Although rated overall acceptable, Respondent was again found unacceptable in knowledge of subject matter because she continued to make the same kinds of grammatical errors she had been observed making at the November 23, 1982 observation. The December 7, 1982 observation resulted in a prescription for remediation. Dr. Hanley suggested that Respondent record herself on a tape recorder so that she could become sensitized to verb forms. Respondent followed Dr. Hanley's advice and it helped on the subsequent observation, but she did not sustain the improvement as indicated below. Respondent was next formally observed in the classroom by Dr. Hanley on February 10, 1983. She was rated overall acceptable and made only one grammatical error, saying "cent" sometimes instead of "cents." Note was made of excellent behavior modification. On Respondent's Annual Evaluation for the 1982-1983 school year, Dr. Hanley rated Respondent acceptable in all categories and recommended her for employment for the next school year as a continuing contract teacher. Respondent had achieved tenure. 1983-1984 SCHOOL YEAR Respondent was next formally observed in her classroom by Dr. Hanley on May 7, 1984. Although rated overall acceptable, she was rated unacceptable in knowledge of subject matter and in a single subcategory of preparation and planning. She was rated unsatisfactory in the latter subcategory because her room was so cluttered that it was difficult to carry on her instruction. She was rated unacceptable in knowledge of subject matter because she was again making the same grammatical errors she had made the year before. (See Finding of Fact No. 20 that improvement was not sustained). For example, the following statements were written on Respondent's chalk board: "Dorothy want to go back home", " . . . work that I have not finish." Dr. Hanley reminded Respondent that they had worked on the "ed" and "s" endings on verbs before. Nonetheless, Respondent was rated acceptable in all areas on her Annual Evaluation for 1983-1984 and was recommended for continued employment as a continuing contract teacher. 1984-1985 SCHOOL YEAR Through the 1983-1984 school year, the School Board utilized the standard evaluation system which was an undefined system that allowed observers maximum discretion, without any clear or consistent criteria. It was essentially geared toward making any end-of-the year employment decision. With the advent of the 1984-1985 school year, a new method of evaluating teachers was put into effect. Beginning with the 1984-1985 school year, Respondent's performance was assessed under a new form of evaluation which was thoroughly tested by the School Board and which was negotiated and agreed-to between the School Board and Respondent's union. This is the Teacher Assessment and Development System (TADS). TADS is a highly specific research-based clinical supervision system. State-of-the-art research has characterized certain teaching behaviors that are effective in a learning environment. TADS has grouped these into categories of assessment criteria. Required teaching behaviors are very precisely defined and there is very little room for discretionary interpretation by the observer. Ideally, the system is governed by decision rules which eliminate the potential of an arbitrary or capricious application of the criteria. The system is intended to further develop and upgrade teaching skills and assist the individual teacher to perform better. On the down side, TADS was characterized by the School Board's expert, Dr. Patrick Gray, as a clinical form of evaluation which primarily identifies teaching behavior which is simply acceptable, but it would not identify behavior of superior or excellent performance. (TR-II 47) Respondent's first formal classroom observation under TADS was on November 13, 1984. She was rated unacceptable in preparation and planning because she only carried out a very small part of the lesson and because she did not follow the assessment item in her lesson plan. She was rated unacceptable in knowledge of subject matter because she presented the information to the children inadequately. There was no background given to draw out the students' previous understanding; no introduction, reinforcement, and drill; and no form of assessment to ascertain what the children had learned when the lesson was completed. She was rated unacceptable in classroom management, because there was disorder a good part of the time and the class was not conducive to learning. Respondent and students arrived late. There were many delays during the class period. The cardboard coins utilized in the lesson on coin values became a great distraction and Respondent was unable to bring the coins into the lesson. She only got into the very introductory part of the lesson and rambled in her instruction. Respondent was not able to pull the students together into a group of attentive listeners. She was also rated unacceptable in techniques of instruction because she never fully instructed the students about her expectations regarding what they were to do at their desks. The coins became the major focus of the children's attention and they were tossing them and taking them from one another. Respondent was rated unacceptable in assessment techniques because there was no assessment of the teaching objectives. As a result, there would be no way to tie up a lesson or help a teacher plan subsequent lessons. In order to aid Respondent in improving her performance, Dr. Hanley prescribed help. Dr. Hanley recommended that Respondent develop the skill of pacing her lessons so that she could complete the lesson within the allotted time; that Respondent seek help from Cynthia Muller, a PREP specialist, and that she also seek help from Dorothy Sissel, Chapter I Manager. Dr. Hanley also prescribed help in that she recommended that Respondent reorganize her room to make materials accessible for more efficiency. She recommended Mr. Holmberg, Assistant Principal, as a resource person. She also recommended that Respondent seek help from the Chapter I Specialist. Dr. Hanley recommended the Respondent seek help from Chapter I and PREP specialists because she felt that the on-the- spot classroom training by these very qualified people would be very helpful to Respondent. PREP stands for Florida Primary Education Program, a program mandated by the State of Florida pursuant to Section 230.2312, Florida Statutes. PREP mandates a diagnostic- prescriptive approach that enables each child to have an individualized program to permit development of that child's maximum potential and to achieve a level of competence by that child in basis skills. Pursuant to this approach, students are divided into three categories, with those developing at a normal level being taught with developmental teaching strategies, those having been identified as having potential learning problems, being taught with preventive teaching strategies, and those needing more challenging work, being taught with enrichment teaching strategies. The School Board has developed reading and math programs to comply with the statutory mandate. Respondent actually received help from Cynthia Muller, the PREP Specialist, in the areas of preparation and planning, classroom management and techniques of instruction. Mrs. Muller helped Respondent approximately on 9 to 10 occasions for a total of approximately 12 hours of assistance. She provided this assistance on November 7, 9, 26, 29 and December 4, 1984, and on February 7, May 28, June 6, and 11, 1985. In the course of her assistance, Mrs. Muller observed several problems with Respondent's teaching. There was a lot of off- task behavior. The children were jittery and walked around the classroom at will. They exhibited little motivation. Mrs. Muller found that much of the work was inappropriate for the students, above the level for which they were competent. That added to the off-task behavior. On November 26, 1984, Mrs. Muller did a demonstration lesson for Respondent showing her how the children could be motivated to stay in their seats and work quietly. She also demonstrated the use of the teacher manual in planning for the complete class period so that all of the children would receive their reading lessons within the prescribed timeframe. On another occasion, they also discussed the Total Math Program (TMP), Petitioner School Board's diagnostic-prescriptive program for math. TMP provides for pre- and post-testing of students and clustering students into particular groups. They discussed grouping students, assessing them, planning for them, and instructing them using a teacher's manual. Mrs. Muller also suggested a positive re-enforcement type of reward system. She also suggested that Respondent remove books and materials from the instructional area so that the class would have a clean place to work and place their books. Mrs. Muller also noticed misspelled words and improperly used words on the chalkboard e.g., "When he finish the book." Mrs. Muller's assistance, November 7, 1984 to June 11, 1985 overlaps several subsequent formal observations. Respondent was next formally observed in the classroom by Dr. Hanley on December 7, 1984. Despite Mrs. Muller's assessment on November 7 and 11 that there was some improvement, Respondent was rated unacceptable in preparation and planning, classroom management, and techniques of instruction by Dr. Hanley on December 7, 1984. She was rated unacceptable in preparation and planning because she had no assessment item in her lesson plan. Because Respondent told Dr. Hanley that she knew what was expected and she promised to do it in the future, Dr. Hanley did not make a further prescription in that area. Respondent was rated unacceptable in classroom management because her classroom was still very disorderly. Dr. Hanley recommended that Respondent designate areas for specific subjects and tasks within her room. Respondent was rated unsatisfactory in techniques of instruction because her lesson, again, was considered by Dr. Hanley to be a rambling one. Dr. Hanley found the lesson components not to be sequenced; Respondent did not accent the important points; Respondent was unaware of what her students were doing; she did not provide suggestions to her students for improving performance; she did not adjust her lesson when students were not understanding but went right on with what she was teaching rather than re-teach a concept. Dr. Hanley did not feel Respondent provided for closure of the lesson so as to help the children pick up the critical areas of the lesson and so as to be ready for the next lesson. Respondent continued to make grammatical and spelling errors, e.g., "...Santa Clause and other tradition." In order to help Respondent improve her performances Dr. Hanley recommended that Respondent observe two fellow teachers whom Dr. Hanley felt had excellent techniques of instruction. A conference-for-the-record was scheduled for the Respondent in December, 1984, but due to Respondent's illness and impending surgery, it was rescheduled for February 13, 1985. A conference-for-the-record is an official meeting regarding a teacher's teaching performance. It is required so that the teacher is officially notified that her deficient performance has not been remediated. At the conference, administrators went over Respondent's classroom observations. Respondent was notified that if she was still under prescription at the time of her Annual Evaluation, she would not receive her annual teaching increment (pay raise). From February through May, 1985, Perrine Elementary School was visited at least once a week by the Chapter I Educational specialist, Tarja Geis. She helped most of the teachers each time she visited. Chapter I is a federally funded program which addresses reading and math deficiencies in children from low income areas. It uses a language experience approach. Ms. Geis' opportunities to observe Respondent were short and sporadic. Her observations were not "formal" observations. However, when Ms. Geis did observe Respondent in the classroom, she noticed Respondent's inattentiveness to some of the children's behavior. She suggested ways to Respondent to improve that, most of which were "boilerplate" suggestions. Ms. Geis also observed one of Respondent's lessons and did a demonstration lesson for her on May 22, 1985, in order to show Respondent the language experience approach used in the Chapter I program. Ms. Geis discussed and/or demonstrated techniques to improve class management, student behavior, student comprehension and student attitude. On March 15, 1985, Ms. Geis gave a workshop for Chapter I teachers. All teachers who would have been working that day would have been in attendance. It is probable that Respondent attended that workshop. She had missed an earlier one in February because of her absence. Respondent indicated at formal hearing that she was not aware that Tarja Geis was a resource person for her use, but her perception is illogical in that Ms. Geis is a Chapter I Educational Specialist and Respondent teaches in the category of Chapter I students. Respondent also testified that she was not given in-service learning experiences by Dr. Hanley and Mr. Holmberg when she requested them. The workshop given by Ms. Geis would seem to address this request, contrary to Respondent's assertion. Respondent concurs that she attended at least one such workshop. Respondent was next formally observed in her classroom by Dr. Hanley on March 21, 1985. By this time, Respondent had received help from Mrs. Muller and Ms. Geis. She may have also sought help from the two teachers at her school. By her own testimony, she sought assistance from Ms. Jackerson and by a course taught outside of the usual school day. She showed great improvement and was rated acceptable in every category. Respondent was next formally observed in her classroom on May 7, 1985, simultaneously by Dr. Hanley and the area director, Phyllis Cohen. Under TADS, this is an external or dual observation where two observers assess the same classroom performance. Its purpose is to assure objectivity and fairness. Respondent was rated unacceptable in preparation and planning because her lesson plans were not carried out. While Respondent attempted to work with one group, the other groups' lessons were not implemented. The students were not on task. The group at the listening station was not doing its work. The group doing independent reading did not open their books. At least half the students did not receive their directed reading lesson. Respondent was rated unacceptable in knowledge of subject matter because her development of ideas and information was unclear and confusing. She would give insufficient definitions and did not reinforce with enough examples so that the students could understand the homework assignment. The lesson was not sequenced and Respondent was again using inaccurate language. The vocabulary words that the students were working on were not introduced to them and did not have any relationship to the lesson. Respondent was rated unacceptable in classroom management because her classroom was out of control and because of her problems in managing the transition time, getting and keeping students settled, and managing the different reading groups. Class started ten minutes late, and during transitions in the lesson, approximately twenty minutes were wasted. As the hour progressed, the noise crescendoed. Five to eight students were off-task at different times during the class. One student slapped another during the lesson. Respondent was not aware of the off-task behavior and did not redirect the students. Respondent was rated unacceptable in techniques of instruction because she did not introduce the lesson, provide opportunities for the students to practice, get feedback whether the students had obtained information, or provide reinforcement and follow-up. In other words the sequence was not appropriate. There was a lot of jumping around in the lesson. Respondent did not address the various learning styles of the students. Her communication was not precise enough for students to understand what she was trying to teach. She did not give the students feedback on their strengths and weaknesses. Although she used the teacher manual, she did not fill in between the questions with her own information. She asked the questions in a distorted manner. The students were unable to answer the questions and Respondent could not elaborate but went on to the next question. Her directions to the students were very poor, as were her explanations. She failed to rephrase explanations that were not understood. Her instructions to the listening station group were not specific enough. Her questions on the worksheet were not explained in a way that the students were able to proceed independently. They did not do the worksheet at all. Respondent was rated unsatisfactory in assessment techniques because she did not assess what the students were learning at their levels. Material was presented at a low cognitive level. She did not seem to be able to ascertain whether the students were learning what she was teaching them. She did not walk around to determine what each group was doing. In order to help Respondent improve her teaching performance, Dr. Hanley recommended that she work with Mrs. Muller again on the execution of her lesson plans in order to facilitate a directed reading lesson for each of her reading groups. To help Respondent improve her teaching performance, Dr. Hanley recommended that she observe another Chapter I teacher during a reading lesson to hone in on the development of ideas and information in a sequential and meaningful manner. Two teachers were named as resources. To help Respondent with her classroom management, Dr. Hanley recommended that Respondent work with Ms. Geis and the Assistant Principal to develop strategies for effective student management while beginning classes and during transition periods and that she work with an observer to sensitize herself to off-task, nonproductive activities on the part of students. It was also recommended that Respondent revamp her behavior modification plan to enhance student involvement. To help Respondent improve her techniques of instruction, Dr. Hanley recommended the Respondent again work with Ms. Geis and Mrs. Muller since she had improved after working with these two education specialists the prior year. Dr. Hanley recommended that Respondent review the elements in a basal reading lesson, i.e., background, sequence, and closure. She also recommended that Respondent rehearse her reading lesson so that she would think ahead about the main points and key definitions. She recommended that Respondent work with the observers to sensitize herself to situations in which the students are confused, and that she develop strategies to improve clarification. Dr. Hanley was also available to Respondent as a resource. In order to help Respondent improve techniques of instruction, Dr. Hanley recommended that Respondent have a person observe Respondent while she was teachings and help her on the spot when her students were not following the lesson. She suggested the Respondent develop assessment techniques which incorporated multilevel assessment activities. She also recommended that Respondent include development of summative assessment instruments in conjunction with these other activities. She recommended that Ms. Geis and the Assistant Principal be used as resources to help Respondent develop a sensitivity in identifying whether the students were on-track. On May 28, 19 85, Mrs. Muller discussed reading lessons with Respondent. She went over sequencing. She asked Respondent to rehearse her reading instruction. Mrs. Muller also gave Respondent a PREP teacher guide and a sample directed reading lesson. She referred her to a section on classroom organization and management. On June 6, 1985, Mrs. Muller was to visit Respondent's class and to observe a directed reading lesson. Respondent, however, was doing a different lesson. There was very little organization in the lesson. Mrs. Muller saw some improvement in the Respondent's teaching; however, considering the amount of time she had spent with the Respondent, she would have expected to have seen more progress. Although Respondent had demonstrated a willingness to receive suggestions for improvement and a willingness to work toward acceptable ratings, her Annual Evaluation for the 1984-1985 school year was unacceptable. Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Nonetheless, Respondent was recommended for continued employment for the next school year as a continuing contract teacher. It was Dr. Hanley's hope that Respondent would remediate herself during the next school year. Respondent remained on prescription and would not be entitled to her pay increment (raise) for the next school year while she was still on prescription. 1985-1986 SCHOOL YEAR On October 16 and 17, 1985, Respondent received more help from a fellow teacher, Joyce King. Ms. King discussed with Respondent the instructional processes of sequencing, interfacing subjects, and closure. Ms. King also demonstrated a reading lesson for Respondent. On October 22, 1985, Respondent received further help from another teacher, Doretha P. Thomas. Respondent observed Ms. Thomas during a developmental reading lesson in her class. Ms. Thomas also discussed with Respondent the amount of time used with the reading group, scheduling, and possible changes Respondent could make in her own planning. Respondent was next formally observed in her classroom by Dr. Hanley on October 30, 1985. The class was working on the Dade County required diagnostic-prescriptive reading curriculum known as RSVP. This curriculum contemplates that students are to be pretested and their deficiencies listed on individual profiles so that the teacher knows what specific skills to teach them. It is mandatory that the students' skills be profiled before the teacher attempts to work with them. Respondent had not completed the RSVP paperwork as of the date of this observation. I accept Respondent's testimony that she only had from October 18 until October 30, 1985 in which to complete these profiles; that she was under some disadvantage in preparing the profiles because of the administration's peremptory move of all her materials to a smaller classroom on Friday October 18; and that her observation rating was somewhat tainted by the temporary mess that resulted from the move. However, I find that the period involved would have been sufficient to complete at least the profiles if she had performed her tasks diligently in the intervening seven workdays. Respondent was rated unsatisfactory in classroom management because the class was not well managed and the students were not working. After the midpoint of the period, three students did no work. In the last ten minutes of the periods, six students did no work. Many students completed worksheets during the first twenty minutes of the class and then colored pictures. These students of Respondent's were not re- directed by her. Respondent seemed to be unaware of the off-task behavior. In order to help Respondent with her classroom management, Dr. Hanley recommended the Respondent move among the students periodically. She also recommended the Respondent plan sufficient work for the instructional period and that she clarify to students what additional study and enrichment activities were available when work is completed. Respondent was rated unacceptable in techniques of instruction because she was not monitoring pupil performance. Students were doing work incorrectly on their worksheets, and Respondent did not circulate and catch the errors or clarify them. Therefore, incorrect material was being reinforced by the students in their work. Several of the students did not understand the follow- up worksheets. The students' confusion indicated that they were not being taught at their appropriate level. They were being taught on a hit or miss method since their profiles had not been completed. In order to help Respondent improve her techniques of instruction, Dr. Hanley recommended that she fulfill the requirements of RSVP by completing her profiles, grouping her children, and making a class profile chart. Dr. Hanley also recommended that the teacher aide assist Respondent with the pretesting. Dr. Hanley listed the area PREP specialist and herself to review grouping for instruction. Respondent was rated unsatisfactory in assessment techniques because although she, as part of her school faculty, had been instructed every year as to the School Board requirements for maintaining student folders, her student folders were deficient. She had no papers dated after September 19, 1985 in them. In order to help Respondent improve her assessment techniques, Dr. Hanley clarified what was expected as far as classroom folders. Respondent must have at least one graded and dated paper per week in reading, math, and writing in each student's folder. Dr. Hanley listed herself and other classroom teachers as a resource for Respondent. Respondent was next formally observed in the classroom by Assistant Principal, Herbert Holmberg. He rated her unsatisfactory in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because she had grammatically incorrect information and statements on the chalkboard. Knowledge of subject matter was not exhibited as Respondent read verbatim from the teacher manual. She did not address various cognitive levels. In order to help Respondent improve her knowledge of subject matter, Mr. Holmberg recommended that Respondent prepare her material, information, and directions in advance and that her verbal and written usage be grammatically correct. He suggested more flexibility and elaboration during reading. He also suggested that the subject matter be presented at more than one level. As recommended resources, he listed the Principal, the Assistant Principal, and a peer teacher. Respondent was rated unsatisfactory in techniques of instruction because she did not have a sequence in the lesson. The grammar on the board was incorrect. Her spelling was incorrect. There was no variety to her activities. There was no assessment of closure in the lesson. As resources for help, he recommended the Assistant Principal, the PREP specialist, and a peer teacher. Another conference-for-the-record was held with Respondent on December 9, 1985. Respondent's teaching performance was discussed. Dr, Hanley was hopeful the Respondent would be able to remediate her deficiencies; however, Respondent was put on notice that if she was not fully remediated by the close of the school year she would be recommended for termination for cause. Respondent was next formally observed by Charles Sherwood, Directors Basic Skills on December 13, 1985. She was rated unsatisfactory in techniques of instruction and assessment techniques. Respondent testified that Dr. Sherwood orally indicated to her that her rating was satisfactory and created no problems but the business record of the school (P 30) shows that he rated her unsatisfactory in techniques of instruction because all of the pupils received the same spelling lesson, despite the differences in their reading levels; and that he rated her unsatisfactory in assessment techniques because, although the school year was very close to being halfway over, Respondent still had not completed her PREP roster. Respondent was next formally and simultaneously observed in her classroom in another external observation on March 17, 1986, by Dr. Hanley and Mrs. Cohen, and she was rated unsatisfactory in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because there were a substantial number of errors in teaching the concept "1/2". The words "equal" and unequal" were not used, although they were key vocabulary words in the teacher's manual for the lesson. Respondent told the children that a whole with a line in it becomes one-half. She did not indicate that the line had to be in the middle of the whole in order for there to be halves. In order to help Respondent improve her knowledge of her subject matter, Dr. Hanley recommended that Respondent use the teacher's manual for planning and delivering of instruction. It was requested the Respondent master the use of and use the words "equal" and "unequal" appropriately. She also recommended the Respondent use the area specialists, peer teachers, and the Assistant Principal as resources. Respondent was rated unacceptable in techniques of instruction because the explanations of the concept of a whole, half, and fractions were not clear to the reviewer, and the reviewers felt the components necessary to address the key concepts were not effectively presented, thereby confusing she children, and an appropriate vocabulary was not used. They felt Respondent's lesson was again lacking in sequence. Additional resources and suggestions for improvement were prescribed to Respondent. Another conference-for-the-record was held with the Respondent on April 16, 1986. Some of Respondent's concerns regarding the TADS process were addressed. Respondent's improvement was discussed and Respondent was again notified that if she failed to be removed from prescription by the end of this second year of deficiency, recommendation of dismissal for cause would be made. Respondent was next formally and simultaneously observed in the classroom in another external observation by Dr. Hanley and Evelyn Evans, another area director. Respondent was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because she made errors in subtracting. The errors which she made on the board were not corrected. She also made errors in the process itself. These errors were demonstrated on a chalkboard at formal hearing which was erased without being admitted in evidence, but the oral testimony and business records of this observation are sufficient to support this finding. Respondent did not correct student errors, used inappropriate terminology referred to the one's and ten's columns as the right column and left columns and thereby confused the children. Dr. Hanley found the deficiencies in this lesson very similar to the math lesson observed on March 17, 1986. Respondent was still using her own vocabulary. Despite the fact that most of the children in her class and certainly most of our society could understand Respondent's use of "take away" for "subtract" and use of similar colloquialisms, the School Board established the need for more precise and consistent language in teaching early math skills. Respondent did not show evidence of having mastered the subject matter. In order to help Respondent improve her knowledge of subject matter, Dr. Hanley again emphasized mastery of vocabulary and concepts in the teacher's manual and advised adhering closely to the recommended word usage and plan of instruction. Respondent was instructed not to use her own vocabulary and methods until she had total command of the material. Respondent was rated unacceptable in techniques of instruction because of many errors. The lesson was not properly sequenced; the children did not have a basic understanding of subtracting without regrouping before beginning subtracting with regrouping; Respondent's use of her own vocabulary confused the children; Respondent did not clarify by rephrasing with different words, but rather, used the same vocabulary over again that the children had not understood the first time. Respondent blocked the chalkboard while she was demonstrating to the class, was inattentive to the need for a chair by one student, and required a reading level of the children in math for which they were not prepared. Respondent again demonstrated improper subject-verb agreement, e.g., "What is the numbers?" and dropping endings on verbs, e.g., "As time go on", "Three minus two leave one." In order to help Respondent improve her techniques of instruction, Dr. Hanley again recommended the Respondent work with another second grade teacher to understand and become proficient in following the sequence and the delivery of instructions to include introduction, background, and the other steps in sequencing. She was also instructed to master the vocabulary and instructional plans in the teacher's manual and to adhere to them while teaching. She was instructed to develop a method for re-teaching individual students who appeared not to understand the lesson. Another conference-for-the-record was held on June 6, 1986. Respondent's unacceptable teaching performance was reviewed. Respondent was advised that a recommendation for dismissal for cause would be made. Respondent was also given an end of the year prescription, as required by TADS. Although Respondent had improved her classroom management during the year, she was still unacceptable in knowledge of subject matter and techniques of instruction for the 1985-1986 school year. The two unacceptable categories are key categories in teaching. Improvement in these had either been slight or not at all, and Dr. Hanley had exhausted the school system's resources in attempting to assist Respondent. Respondent's testimony at formal hearing corroborates her supervisors' observations as to her failure to exhibit appropriate English grammar and usage with regard to subject-verb tenses. Gloria Jackerson, a retired teacher, testified on behalf of Respondent. Although this retired teacher of 21 years and a candid witness, she is Respondent's best friend. While this relationship may not have colored her favorable testimony, she admits that she has never observed Respondent teach in the classroom nor has she taught Chapter I students in Miami-Dade County under the present program. Therefore, her testimony with regard to Respondent's competency must be rejected. Evidence presented by several satisfied parents is all in Respondent's favors however, most had no training in classroom observation nor were they able to observe Respondent teaching in her classroom over any significant period of time. Their observations, therefore, were of minimal duration and purely subjective. No objective records showing whether their children were promoted or how their children progressed under Respondent's teaching were offered to substantiate their layman's viewpoint. With regard to the testimony of Robert Collins, a Learning Disability teacher in the Dade County School System, who requested that his child be placed in the Respondent's class and who had a brief opportunity to observe Mrs. Brewer in the classroom and who testified that her classes were well managed, his observation opportunities were so brief and so sporadic as to not outweigh the greater weight of the expert testimony of Petitioner's witnesses. The supportive evidence of Geraldine Townsend, another Perrine teachers is not helpful to Respondent in that this witness also had no truly meaningful observations of Respondent. The testimony of Mrs. Collins, a mother and also a teacher's aide, that some of the formal observers made Respondent's classes nervous and jittery is accepted, but this circumstance does not eliminate or seriously mitigate Respondent's responsibilities to teach effectively and to keep her students under control during observations. Respondent Brewer has worked hard to obtain her education and position. She is a deeply religious, compassionate, and caring individual. She has the type of supportive personality the young people of this society dearly need to know and relate to. She has good rapport with the young and communicates with them in loving and supportive ways. However, her personal qualifications and attributes do not outweigh the clear and convincing evidence of her incompetency as demonstrated by the foregoing Findings of Fact. On August 20, 1986, Petitioner School Board suspended Respondent, 55 years old, from employment, 2.20 years short of her attaining full retirement, and further initiated dismissal procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner, School Board of Dade County, Florida, enter a Final Order sustaining the suspension, without pay, as of August 20, 1986, of Respondent, Anna M. Brewer, and dismissing Respondent Anna M. Brewer as a teacher in the Dade County Public Schools. That the Educational Practices Commission enter a Final Order suspending Respondent's Florida teaching certificate for five years or until she demonstrates competency pursuant to statute and ruled whichever occurs first. DONE and ORDERED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 86-3926, 87-0468 The following constitutes specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner School Board's PFOF Covered in FOF 1. Covered in FOF 2 and 3. Covered and corrected to reflect the record in FOF 5. Covered in FOF 6. Covered in FOF 7. 6-8. Rejected as subordinate and unnecessary except as set out in FOF 11. Covered in FOF 8. Except to the extent it is subordinate and unnecessary, it is covered in FOF 9. Rejected as subordinate, unnecessary and cumulative. Partially addressed in FOF 11. Covered in FOF 10. Covered in FOF 11. Covered in FOF 12. Covered in FOF 13. 16-18. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. Covered in FOF 17. 22-23. Covered in FOF 18. Covered in FOF 19. Covered in FOF 20. Covered in FOF 21. Covered in FOF 22. Covered in FOF 23. Covered in FOF 24. Covered in FOF 25. Covered in FOF 26. Except to the extent it required expansion to fully conform to the record and except to the extent its proposals are subordinate and unnecessary, this proposal is covered in FOF 26. 33.-42. Covered in FOF 27-28. 43.-47. Except as contrary to the record for expression or subordinate, covered in FOF 29. Covered in FOF 30. Covered in FOF 31. Covered in FOF 32. Covered in FOF 33. Covered in FOF 34. Covered in FOF 35. Covered in F0F 36. Modified to more accurately reflect the record as a whole, in FOF 37. Modified to more accurately reflect the record as a whole, in FOF 38. Covered in FOF 39. Covered in FOF 41. Covered in FOF 42. , 62., 64., 66. and 68. are covered in FOF 43. , 63., 65., 67. and 69. are covered in FOF 44. 70.-73. Covered in FOF 45. Covered in FOF 46. Covered in FOF 47. Covered in FOF 48. Covered, expanded and modified so as to reflect the competent, substantial evidence of record as a whole in FOF 49. Covered in FOF 50. Covered in FOF 51. Covered in FOF 52. Covered in FOF 50 and 53. Covered in FOF 54. Covered in FOF 55. Covered in FOF 56. Covered in FOF 57. Covered in FOF 58. Covered in FOF 59. Covered in FOF 60. 89-91. Expanded and modified to reflect the competent, substantial evidence of record and to eliminate the subordinate and unnecessary in FOF 61. Covered in FOF 62. Except to the extent it is subordinate and unnecessary, covered in FOF 63 and 65. Covered in FOF 64. 95-96. Covered in FOF 65 except for cumulative and unnecessary material. Covered in FOF 66. Covered in FOF 67. Covered and expanded in FOF 68. Covered in FOF 69. Except to the extent it is subordinate and unnecessary or cumulative, covered in FOF 70. Covered in FOF 71. Covered in FOF 72. Covered in FOF 73. Rejected as cumulative. Covered in FOF 74. Rejected as cumulative. Covered and expanded in FOF 80. Petitioner Betty Castor's (EPC's) PFOF Since this petitioner adopted the PFOF of Petitioner School Board, the rulings are also the same. Respondent's PFOF Covered in FOF 1. Covered in FOF 2-3. Covered in FOF 4. There is no PFOF. Covered in FOF 7-13, most specifically in FOF 13. Covered in FOF 14-17, most specifically in FOF 17. Covered in FOF 18-22, most specifically in FOF 22. Covered in FOF 23-25, most specifically in FOF 25. 9-10. Covered in FOF 26. Rejected as not supported by the evidence. Rejected as not supported by the evidence and for the reasons discussed in FOF 75. Rejected as not supported by the evidence and for the reasons discussed in FOF 77. Rejected as not supported by the evidence and for the reasons discussed in FOF 76. Rejected as not supported by the evidence and for the reasons discussed in FOF 78. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madeline P. Schere, Esquire Board Administration Building Suite 301 1450 Northeast Second Avenue Miami, Florida 33132 J. David Holders Esquire 211 South Gadsden Street Post Office Box 1694 Tallahassee, Florida 32302 William DuFresne, Esquire 2929 Southwest Third Avenue Suite 1 Miami, Florida 33129 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
The Issue The issue to be determined in this case is whether Petitioner, Miami-Dade County School Board (School Board), had just cause to suspend Respondent, Harcourt I. Clark, for ten days without pay.
Findings Of Fact Based on the stipulations of the parties, and an evaluation of the testimony of witnesses and documentary evidence presented, the following facts are found: At all times material to this proceeding, Respondent was employed by the School Board as a school teacher within the School District of Miami-Dade County (School District). Respondent was a teacher in the School District, since approximately August of 1987 at various schools within the county, and also worked as a coach for 15 years of that tenure. At the time of the incident alleged in the Notice of Specific Charges, Respondent was teaching at Shenandoah Middle School. Respondent has a disciplinary history with the School Board. In 1995 (23 years ago), Respondent was the subject of an administrative review at the individual school level, as a result of a complaint that alleged, in part, that Respondent was allowing students to massage his shoulders in class, and for showing movies unrelated to the curriculum. As a result, Respondent received an informal conference and a letter of written directives. The written directives included an admonition that Respondent refrain from “allowing students to massage your shoulders, neck, etc.,” and “any other physical contact with students.” No further action with respect to this complaint was taken at the district level. On October 2013, Respondent showed up to work under the influence of alcohol. He returned to work only after completing a rehabilitation program under the supervision of the District’s Support Agency. In September 23, 2016, Respondent was given a written reprimand for using profanity in the classroom. On November 21, 2016, later that same year, Respondent received a written Absence from Worksite Directive for having six unauthorized absences in November 2016. The incident giving rise to the discipline in this case took place on February 28, 2017, prior to the administration of an FSA examination to a group of sixth-grade students. The Notice of Specific Charges alleged that Respondent “walked around the classroom and slapped several students in the back of the head, grabbed others by the neck, and physically squeezed at least one student’s hands.” Respondent was to administer the FSA test with another instructor, Teresa Gonzalez. Before the start of the examination, Respondent walked around the classroom between the rows of student desks, gathering book bags, making sure that students had pencils for the test, and encouraging students to do their best. As he walked around the classroom, Ms. Gonzalez observed Respondent touch the back of several students’ necks or shoulders in what she described as correcting their posture. She also observed him “squash” a student’s fingers together in what she described as a prayer position. She could not, however, hear what Mr. Clark was saying to students because she was in the front of the room and Mr. Clark was in the back. Ms. Gonzalez could not identify the students who Mr. Clark touched because they were not her students. She also did not recall any comments by students, but stated at hearing that their facial expressions indicated that they did not like being touched by him.1/ Ms. Gonzalez also confirmed her statement to School District investigators that she did not believe Mr. Clark was angry with the students, and that it looked like his actions were a way of communicating and playing with the students. However, she was disturbed by Mr. Clark’s actions and reported them to her assistant principal. Two students testified regarding the February 28, 2017, incident. One of them, R.M., testified that before the exam, Mr. Clark grabbed his hands and squished them, and grabbed at the back of his neck, and stated that Mr. Clark also slapped another student on the back of the head. He testified that he was not hurt in any way by the action, but the other student said “ow” in response to Mr. Clark’s action. R.M. did not believe that Mr. Clark was trying to motivate the students. Student A.F. recalled Mr. Clark tapping the top of a student’s head and that the student just laughed. A.F. believed that Mr. Clark may have patted some kids on the back of the head before the test, but that he believed it was done to encourage the students, much like a coach would. Mr. Clark testified that he merely tapped students on the back of the head while telling them to do well on their test. He viewed the tap as similar to what a principal or school board attendee might do at a graduation or where a student was receiving a certificate. It was encouragement and not malicious, and not meant to hurt anyone. Mr. Clark acknowledged that he had been warned about harmful touching, and would not engage in that type of conduct, saying, “I wouldn’t want anybody hitting my kid. And for no way [sic] I would lose my pension for 31 years hitting a kid like that. That’s not my character.” Mr. Clark did not recall grabbing R.M.’s hand and testified that he generally stayed away from R.M. because R.M. was rude in his classroom, and they did not get along. Whatever the relationship between R.M. and Mr. Clark, it appeared from R.M.’s demeanor at hearing that he did not care for Mr. Clark, and that may have colored his testimony somewhat. It is found that Mr. Clark tapped several students on the back of the head or neck and squeezed at least one student’s hands together before the administration of the test. The gestures were meant to be an encouragement for the students to do well during the examination, and were not any form of punishment. Mr. Clark’s actions, based on the evidence presented, did not constitute corporal punishment, and did not rise to the level of use of force, much less excessive or unreasonable use of force. The Notice of Specific Charges also alleges that Respondent “used profanity towards at least one student, said other inappropriate things and also used the term ‘these/deez nuts’ prior to the start of the exam.” The only evidence presented regarding profanity during hearing was a statement by Ms. Gonzalez that an unidentified student stated that Mr. Clark was “cursing her.” There was no testimony from that student, and no description that is not hearsay describing what was allegedly said. While Petitioner attempted to characterize the hearsay statement of the student as an excited utterance, there was no evidence presented upon which to predicate that characterization. With respect to the use of the term “deez nuts,” Ms. Gonzalez did not hear Mr. Clark use the term. Both students testified that he did so, in response to a question asked by a student. R.M. testified that the term is slang for “I don’t know,” or “whatever,” and may refer loosely to a young man’s genitalia. A.F. also stated that Mr. Clark used the term “deez nuts” as sort of a joke, and said that use of the term used to be popular as sort of a joke. Both students’ description of the term was somewhat tentative. Mr. Clark testified that he had heard the term before from the students, but would not use it. The more persuasive testimony is that Mr. Clark used the term in response to a student in the classroom, but there was no compelling testimony that the term is anything more than rap- influenced slang. No evidence was presented to indicate whether the students found the term offensive or inappropriate, considered it to be profane, or that any student felt embarrassed or humiliated by its use. Further, the evidence was not persuasive that Mr. Clark intended by his use of the term to refer to genitalia. No evidence was presented regarding any other “inappropriate” comment made by Mr. Clark.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board rescind its order suspending Respondent without pay, and reimburse him for the period for which he was not paid. DONE AND ENTERED this 13th day of August, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2018.
The Issue Whether Arthurine Brown (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade School Board (the School Board) on July 3, 2013, and whether the School Board has good cause to terminate Respondent's employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. NMSHS is a public school in Miami-Dade County, Florida. During the 2012-2013 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. The School Board assigned Respondent to a self-contained, special education classroom at NMSHS taught by Dorothy Roberts. Respondent has worked at NMSHS as a paraprofessional since 2004. During the 2012-2013 school year, paraprofessionals Frantzso Brice and Larry Eason were also assigned to Ms. Roberts' classroom. Ms. Roberts' class consisted of 13 special needs children with varying exceptionalities. The vast majority of Ms. Roberts' class was of Haitian descent. Ms. Roberts' students included P.P.C. (the Student), a non-verbal child on the autism spectrum. The Student is a 14-year-old male who functions at the level of a two or three-year-old child. On January 17, 2013, Ms. Roberts, Mr. Brice, and Respondent were in the process of escorting children into the classroom for the beginning of the school day when an incident involving Respondent and the Student occurred. Ms. Roberts, Mr. Brice, and Respondent were in the classroom when the incident occurred. Mr. Eason was not in the classroom when the incident occurred. After the Student entered the classroom at approximately 7:15 a.m., he picked up Respondent's purse from a table and went towards a window. What happened next is in dispute. The greater weight of the credible evidence established that Respondent cornered the Student, grabbed him by the throat with her left hand, and slapped him in the face using the palm of her right hand. Ms. Roberts heard the sound of the slap. Ms. Roberts and Mr. Brice described the slap as being very hard. Ms. Roberts heard Respondent warn against "touching her fucking shit." Mr. Brice heard Respondent warn against "touching her fucking stuff." 1/ Immediately after the incident, the Student had tears in his eyes, but his face had no observable bruising or swelling. Ms. Roberts immediately reported her version of the incident to Michael Lewis, the principal of NMSHS. After talking to Ms. Roberts, Mr. Lewis interviewed Respondent in Ms. Roberts' classroom, without Ms. Roberts being present. Mr. Lewis removed Respondent from the classroom, and instigated an investigation that culminated in this proceeding. Respondent had no justification for striking the Student. During the 2012-2013 school year, Respondent repeatedly used profanity in front of students and co-workers. Ms. Roberts repeatedly told Respondent to stop using profanity, but Respondent did not heed that instruction. During the 2012-2013 school year, Respondent repeatedly made derogatory remarks about Haitians. Respondent stated that she was tired of working with "fucking" Haitians and declared that Haitians were dumb, stupid, and should go home. Mr. Brice, who is Haitian, felt disrespected by Respondent's disparaging statements. At its regularly scheduled meeting on May 8, 2013, the School Board suspended Respondent's employment and instituted these proceedings to terminate her employment.
Recommendation Based on the foregoing findings of fact and conclusions of law: It is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Arthurine Brown and terminates that employment. DONE AND ENTERED this 30th day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2013.
