You can find the following Recommended Order from the Division of Administrative Hearings in FALR publication Volume 39, No. 24, page 2791.
STATEMENT OF THE ISSUES
Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
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On November 29, 2016, the Commissioner of Education executed an Administrative Complaint against Respondent which alleged that, “[o]n or about November 30, 2015, during class, Respondent postured himself in an aggressive or threatening manner toward eighth grade student, H.H., and stated to H.H., ‘come on you little pussy ass bitch, hit me, so I can send your ass to jail,‘ or words to that effect.” As such, Petitioner alleged that Respondent “failed to make reasonable effort to protect [H.H.] from conditions harmful to learning and/or [H.H.]’s mental health and/or physical health and/or safety,” and “intentionally exposed [H.H.] to unnecessary embarrassment or disparagement.”
On January 9, 2017, Respondent, through counsel, filed an Election of Rights by which he requested a formal hearing.1 The matter was referred to the Division of Administrative Hearings for an evidentiary hearing.
The hearing was set for May 3, 2017, and was convened as scheduled.
On April 24, 2017, the parties filed their Joint Pre-hearing Statement, which contained several stipulations of fact, each of which is adopted and incorporated herein.
At the final hearing, Petitioner presented the testimony of B.G., the Exceptional Student Education (ESE) assistant principal at DeLand Middle School (DMS); H.H., who was a student in Respondent’s class at the time of the alleged incident; T.H., who was a student in a nearby classroom at the time of the alleged incident; R.G.P., a campus advisor at DMS; and S.H., Director of Professional Standards for Volusia County Schools. Petitioner offered no exhibits into evidence.
In his case in chief, Respondent testified on his own behalf, and presented the testimony of T.R., a teacher in the Self-contained Emotionally Behaviorally Disabled (SC-EBD) department at DMS. Respondent’s Exhibit 1 was received in evidence.
A one-volume Transcript of the proceedings was filed on May 18, 2017.
Both parties timely filed Proposed Recommended Orders which have been duly considered by the undersigned in the preparation of this Recommended Order.
The actions that form the basis for the Administrative Complaint occurred in November 2015. This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs., 115 So.3d 441 (Fla. 5th DCA 2013). Accordingly, all statutory and regulatory references are to their 2015 version, unless otherwise specified.
FINDINGS OF FACT
- The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). §1012.79(7), Fla. Stat.
- Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. §1012.796(6), Fla. Stat. (2016).
- Respondent holds Florida Educator’s Certificate 471010, covering the areas of Educational Leadership, Social Science, and Exceptional Student Education, which is valid through June 30, 2019.
- Prior to the 2015-2016 school year, Respondent had been a school teacher for 27 years, 24 in Georgia, and three in Hawaii. He has never had his teaching certificate disciplined before the instant case.
- After the 2014-2015 school year, Respondent moved from Hawaii to DeLand to be near his elderly parents.
- At all times pertinent hereto, Respondent was employed as an ESE teacher at DMS in the SC-EBD student department.
- As the name infers, the SC-EBD department is self-contained, with EBD students being entirely segregated from the general student population. The SC-EBD department is located in a four-classroom building at DMS. The four classrooms are interconnected. The classrooms of Respondent and Mr. R adjoined at their back doors. The SC-EBD program has approximately 15 total students, with a student-to-staff ratio of three to one. Students rotate through the three classrooms dedicated to the SC-EBD department in two-period blocks, and Mr. R was very familiar with Respondent’s classroom and the students.
- SC-EBD students have a wide range of emotional and behavioral disabilities. The SC-EBD department is the most restrictive environment into which students can be legally placed in the school system, due in part to students in the department having been continuously disruptive in the general student classrooms. To qualify for the department, the student “behaviors have got to be significant. They cannot be your typical misbehavior.”
- According to Mr. R, whose testimony is credited, positions in the SC-EBD department are not desirable, and experience high turnover. Mr. R, having taught EBD students for 19 years — an anomaly — has learned to navigate the EBD environment over the years. However, given the severity of the EBD students’ behavioral issues, even Mr. R, with his years of experience and hard-earned student rapport, has “lost his cool” with them.
- The 2015-2016 school year started in late August 2015. The classroom position ultimately filled by Respondent was vacant, the previous year’s teacher having left on short notice. From the beginning of the school year until Respondent was hired, the class was staffed by a mix of substitutes and paraprofessionals. As a result, the class was significantly more unruly and disruptive than normal, with students acting out, and their behaviors escalating and becoming more severe.
- Prior to his being hired at DMS, Respondent had no experience with EBD settings or with any other kind of severe special education setting, a fact known to Mr. G.
- Respondent began teaching a SC-EBD class at DMS on September 14, 2015. Mr. R credibly testified that Respondent was placed in an extremely difficult position. EBD students generally do not accept change well, and do not accept authority figures. From the beginning of the year until Respondent was hired, classroom management rules had not been consistently enforced by the substitutes and paraprofessionals assigned to the class. When Respondent was thrown into the classroom, and began enforcing the rules, the students got out of sorts, and began to buck the change and Respondent’s authority. Referral of students for disciplinary reasons was not uncommon.
- Respondent received CPI training, and STARTS program training, which included training in Odyssey.2 The 12 required hours of non-crisis CPI intervention training is normally provided over a two-day workshop. Eighty-five percent of the training is de-escalation training as to how to deal with students that become out of control. The rest is for restraint training, i.e. “actual hand-to-hand,” and for post-incident therapeutic rapport. STARTS training is a four-day program conducted on Saturdays, and is usually done before the start of the school year. It includes a half-day of overview, content-specific training for EBD students, two half-days of classroom management for EBD, and one full day of instruction on the EBD curriculum. Given the timeframes for receiving training, it would appear that Respondent’s training would not have concluded until well into October.
- Although Mr. G testified that a district EBD program specialist visited the campus once a week, DMS created no formal or informal mentorship program, and Mr. G did not have specifics as to any special support. Mr. G testified that he did rely on Mr. R, who was “very much the helpful hand in terms of training and teaching the teachers in their — the program, as well as the paraprofessionals.”
- Student H.H. was well known to the DMS administration, with frequent situations in which administration had to deal with him for hyperactivity, profanity, and physical contact with other students. Mr. G knew him to be easily provoked. Mr. G further testified that, as to negatively confrontational situations with H.H., “most staff and students that’s — that was the reaction. I can’t remember specifically any moment in time it was [Respondent] directly, but I’m sure it was within his classroom…. It was multiple settings for H.H.” As stated by T.H., “[H.H.] just gets upset for the most simplest things.”
- Students H.H. and L.Y. were “a very toxic combination.” They “would perform for one another to kind of one up each other,” and their negative behaviors could be “inflamed” by one another. Both students had probation officers and were in and out of the juvenile justice system. There had been discussion at both the EBD level and the administrative level that H.H. and L.Y. should not be paired in the same classroom, with agreement that they should be separated “at all costs” to avoid potential flare-ups.
- Prior to November 30, 2015, and despite the recognition that they should not be in class together, H.H. and L.Y. were removed from their elective classes due to their behaviors and “their inability to be in a gen-ed setting,” and were placed together in Respondent’s classroom during seventh period, which was Respondent’s EBD sixth-grade world history class.
- Both Mr. R and Mr. G indicated that H.H. had expressed the desire to see that Respondent got fired, though Mr. G testified that “H.H. probably says that about every staff member on DeLand Middle School’s campus, including myself.”
- On November 30, 2015, H.H. and L.Y. arrived late to Respondent’s classroom. The testimony from various witnesses as to the subsequent events was inconsistent and contradictory in several major areas.
H.H.’s Version of Events
- H.H. testified that L.Y. and Respondent had an earlier confrontation,3 witnessed by H.H., and that L.Y. “was already out of the classroom” before any interaction between H.H. and Respondent. H.H.’s testimony was confirmed by Respondent, who testified that “where L.Y. was at that time, I do not know. He had gone already.”
- H.H. testified that after L.Y. left the classroom,4 he was sitting, working on the computer, and asked Ms. L, the paraprofessional in Respondent’s classroom who was “sitting, like, maybe, two chairs away from me,” to help him with a quiz. At that time, he testified that Respondent became angry with him talking to Ms. L.5 H.H. testified that Respondent “got into my face” and yelled at him. Other than the vague statement that Respondent got into his face, H.H. offered no support for a finding that Respondent was “posturing.” H.H. and Respondent had an exchange, whereupon H.H. walked out of the door, during which H.H. testified that Respondent hit him with his shoulder.
- After he was outside, H.H. testified that Respondent “poked his head out and he was just, like, Pussy-ass bitch.” H.H. testified that Ms. G.P. was by the door when he walked out of the classroom, and was within a few feet of him when Respondent made his alleged “pussy-ass bitch” statement. H.H. returned, and stood blocking the door. His full body was inside, but he did not go “all the way in the classroom.” He testified that he was ready to fight Respondent. H.H. then testified that Respondent “said something about [H.H.’s] mother.”6 H.H. was “fittin’ to, like, to try to, like, fight him,” when Ms. G.P. grabbed him and told him to leave and go to the office.
T.H.’s Version of Events
- T.H., who was in another EBD classroom, testified that H.H. had gone to the classroom door, and “kind of” nicely asked, “in a normal voice,” to go to the main office.7 He testified that Respondent “said no,” whereupon H.H. walked out. He stated that Respondent then went to the door and said “Come back here you fucking pussy.” Despite T.H.’s apparent ability to see Respondent’s classroom door, and to hear conversation made in a normal voice, he described no other statements or actions related to the incident.
Ms. G.P.’s Version of Events
- Ms. G.P. described a scene very different from any of the main actors. She testified that, at sometime after 3:00 p.m., she was returning to the campus after opening the gate to the school fence to allow buses to come in. She then heard a teacher yelling “pussy-ass kid.” At that point, “the foot went heavier on the golf cart,” and she rolled up to Respondent’s classroom.
- When she arrived, Ms. G.P. claimed that, as the door to the classroom was “slinging open” (implying that it was closed when she first came on the scene), she heard “dirty ass bitch” and could clearly see through the crack at the hinge end of the outward-opening door that Respondent was inside the classroom, “posturing himself in a — to me, threatening manner.” She stated (contrary to the testimony of both H.H. and Respondent) that L.Y. was in the classroom heading to engage himself in the confrontation. She testified that Respondent then said something to H.H. about “your dirty mother.”8 She then removed H.H. from the classroom, and handed him off to a school resource deputy who was a step or two behind her.
- After having been prompted by counsel,9 Ms. G.P. “remembered” that she had first heard Respondent say “[c]ome on you little pussy-ass bitch, hit me so I can send your ass to jail,” the very words alleged in the Administrative Complaint. Despite everyone who was directly involved in the incident agreeing that the incident with L.Y. had concluded and he had left the room before anything regarding H.H. and Respondent transpired, Ms. G.P. testified that “[y]ou do not talk to a child like I heard Mr. S talking to H.H. and L.Y.”
- Despite testimony that she heard Respondent’s outburst well before she came on the scene, Ms. G.P. later testified that she heard a “dirty ass bitch” comment after she arrived on the scene when H.H. and Respondent were both in the classroom, and when the door was “slinging open.” She claimed she heard a different “dirty mother” remark after she was in the room “probably a step in [when] I’m talking to H.H.” She testified that she was about three steps into the room when she got to H.H.
Respondent’s Version of Events
- Respondent testified that H.H. had come into the classroom late, after having been sent out of his seventh-period elective P.E. class. Respondent was teaching sixth-grade world history. Respondent had only just finished with an incident with L.Y., who had also been returned to Respondent’s classroom after having been dismissed from his elective class, engaged in disruptive behavior, and had left the classroom.
- Respondent testified that, upon his entrance into the classroom, H.H. was disruptive, talking, and engaging the other students in conversation. Respondent approached H.H., who was sitting at a desk, and told him that he did not appreciate H.H. disrupting the class. H.H. raised up out of his chair, giving Respondent the impression that H.H. was going to hit him. Respondent said “are you going to hit me?” and indicated that H.H. might have to return to juvenile detention if he did so. Respondent testified, credibly, that he was not trying to embarrass or provoke H.H., but was reminding him of the possible consequences of his actions, stating that “I don’t want to get hit by anybody, and I don’t want to hit anybody…. I was trying to get his attention. I’m trying to keep him from continuing to make the same mistakes and going back to his — where he’s incarcerated, whatever. I wanted him to wake up, I guess, so to speak.” Although Respondent indicated that he was probably closer to H.H. than the distance recommended in STARTS training, he denied being aggressive, indicating rather that he was “[s]imply talking to him… [and] verbally confronting him about his behavior.”
- After the exchange, H.H. got up and brushed Respondent’s shoulder as he headed for the door to leave. When he left the classroom, Respondent testified that, “out of a moment of stress,” he stuck his head out of the door, and said “[d]on’t be a wussy.” Respondent agreed that “it’s probably not the best word to use.” Though acknowledging that the term was, in retrospect, not the right choice, Respondent “didn’t want [H.H.] to continue going down that road of — he wasn’t going down the right road. That’s all there is to it.” At the time Respondent made the statement, he believed that H.H. and he “were the only two people outside of anywhere close to proximity…. It was he and I by ourselves. There’s no other person to hear for him to be embarrassed about other than to not like me saying that.”
- Notwithstanding the harshness of the allegation, evidence of the statement — as alleged — was subject to significant contradiction and confusion between witnesses. The testimony was not precise, varied in many important respects, and was not of such weight that it produced a firm belief or conviction of the truth of the allegations.
- The allegation that Respondent “postured himself in an aggressive or threatening manner toward eighth grade student, H.H., and stated to H.H., ‘come on you little pussy ass bitch, hit me, so I can send your ass to jail'” is not supported by clear and convincing evidence.
- The testimony of Ms. G.P. as to the timing and sequence of events was simply too riddled with inconsistencies — both internal and comparative to other testimony — to be plausible. Her testimony that she could clearly see through the crack at the hinge end of a door that was being slung open, while hurrying to get to the scene, and to be able to accurately assess the situation and determine if someone was “posturing” was not credible. To the extent there was “posturing” involved, it was likely on the part of H.H., who was “fittin’ to, like, to try to, like, fight [Respondent].”
- T.H. described a scene that included none of the actions preceding the utterance of the alleged statement, and the action leading to H.H. leaving the classroom was not anything like that described by either H.H. or Respondent.
- The descriptions of the events offered by Respondent and H.H. were not dramatically different. They both describe a basic set of circumstances in which Respondent confronted H.H., H.H. left the classroom, Respondent said something to H.H., and H.H. returned to the classroom. The specifics are different.
- What was proven by evidence that was credible, clear, and convincing was this: H.H. arrived late to Respondent’s seventh-period classroom and was, upon his entry, disruptive to Respondent’s teaching. Respondent then admonished H.H. which, as was not uncommon, caused H.H. to react. The suggestion that H.H. — who had just witnessed his “toxic” compatriot, L.Y., leave the classroom — was seated and working at his computer, and that his simple request to Ms. L for assistance triggered Respondent, is not plausible.10 Seeing H.H. rise from his desk, Respondent asked if H.H. was going to hit him and, for reasons that were not intended to be aggressive or provoking, suggested that such an act could result in a stint in detention. As H.H. was leaving the room, they brushed against each other. Nothing further can be drawn from that incidental contact, and such does not constitute “physical contact” between the two.11 Finally, in an admittedly poor choice, but one taken without forethought or malicious intent, Respondent stuck his head out of the door to tell H.H. to stop being a “wussy.” That statement caused H.H. to return to the classroom door, ready to fight. Ms. G.P., who had just come onto the scene, then grabbed H.H. and told him to leave.
- After the incident, DMS conducted an investigation. Mr. G could not recall who was interviewed, other than Respondent, Ms. G.P., H.H., and L.Y.12 There was no evidence to suggest that Ms. L was interviewed, and Mr. R was not interviewed. On December 1, 2015, a meeting was held with DMS administration, Respondent, and his union representative. Since Respondent was on probationary status, having been hired barely two months earlier, he was given the option to sign a letter of resignation or to be let go. Respondent consulted with his union representative, and elected to resign from his position. The school district did not make any findings regarding the incident.
- Following the November 30 incident, H.H.’s grades were not impacted and he moved on to the next grade level at the end of the school year. There was no evidence that H.H.’s mental health was affected by the incident. However, rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [H.H.]’s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012).
- It is impossible — and illogical — to overlook the situation into which Respondent was thrust after 27 years of incident-free teaching. Unlike Mr. R, who had not only been at DMS for almost two decades, but who had taught H.H. and L.Y. since they had been in sixth grade, Respondent was thrown into a class midway into a term, a class until which had been increasingly out of control due to the stream of substitutes and paraprofessionals who unsuccessfully tried to impose order. On top of that, and despite a school-wide recognition that H.H. and L.Y. should not be placed in a classroom together, DMS decided to do just that after both were removed from their seventh-period elective classes. That said, the undersigned agrees with Mr. R that Respondent calling H.H. a “wussy” was not the right thing to do, and would not foster a positive learning environment for H.H.
- What also cannot be overlooked is the relatively mild nature of the action that was proven in this case, i.e., that in a moment in which Respondent “lost his cool,” he called H.H. a “wussy.” The evidence was not clear and convincing that Respondent was “posturing,” or that he made any physical contact with H.H. The evidence indicates that there was no intent or expectation on the part of Respondent that the statement was, or could have been overheard.
CONCLUSIONS OF LAW
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