09-003548TTS Duval County School Board vs. Barbara Paul Status: Closed Recommended Order on Thursday, May 6, 2010.

Summary: Petitioner proved by a preponderance of the evidence that Respondent committed numerous violations of the Teacher's Code of Ethics and Florida Administrative Code Rules 6B-1.001 and 6B-1.006. Respondent's employment as a teacher should be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-3548

)

BARBARA PAUL, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (Division), on January 26, 2010, in

Jacksonville, Florida.

APPEARANCES

For Petitioner: Carol Mirando, Esquire

City Hall

St. James Building

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue is whether the termination of Respondent, Barbara

Paul, by Petitioner, "for cause," was justified.

PRELIMINARY STATEMENT

On June 11, 2009, Superintendent Ed Pratt-Dannals of Duval

County Public Schools issued to Respondent a Notice of Discharge

of her employment as a teacher ("2009 Notice of Discharge")

based on charges, during school year 2008-2009, that Respondent

violated Florida Administrative Code Rules 6B-1.006(3)(a) and

(e), 6B-1.001(2), and 6B-1.001(3) by continuing to display a

pattern of unprofessional behavior toward students and parents,

including making inappropriate, disparaging, racial, and

offensive comments to students and their parents and engaging in

inappropriate physical contact with students, ending with the

incident underlying the instant charge, in which she verbally

abused students, used her body to block the students' access to

her classroom, and physically pushed and struck two students.

The Notice of Discharge referenced the various steps of the

Progressive Discipline Policy set forth in Article V of the

Collective Bargaining Agreement that the Duval County School

Board ("DCSB") administered to Respondent, through two different

principals, while she taught at two different schools during

school years 2006-2007, 2007-2008, and 2008-2009.

Respondent filed her request for hearing with Petitioner on

July 24, 2009. The matter was referred to the Division on

July 2, 2009. The case was originally set for hearing in

Jacksonville, Florida, on October 14, 2009, but upon Motion for

Continuance, was reset for January 26, 2010, also in

Jacksonville. The matter proceeded to hearing on that date.

At the hearing, Petitioner presented the testimony of John

Williams, Director of DCSB's Office of Professional Standards;

John McCallum, Investigator for DCSB's Office of Professional

Standards; Gary Finger, former principal of DuPont Middle School

(DuPont); Loretta Hines, former assistant principal of DuPont;

Shannon Judge, assistant principal of DuPont; Carmen Polanco,

DuPont teacher; Dr. Darrell Perry, principal of Paxon Middle

School (Paxon); Allen Moore, former assistant principal of

Paxon; Ronnie Williams, assistant principal of Paxon; Ms. R.P.,

parent of D.P. (student at Paxon); and D.P. (male), an 11-year

old student (at the time of the incident) at Paxon in

Respondent's sixth-grade creative writing class. Petitioner

also offered into evidence at the hearing Exhibits 1 through 28,

all of which were admitted into evidence.

Respondent presented the testimony of Mary Combs, owner of

Mary's Oriental Imports, and Javardo Jones, pastor of Faith

Community Church. Respondent testified on her own behalf.

Respondent did not offer any exhibits.

A Transcript was filed on February 11, 2010. After the

hearing, Petitioner and Respondent timely filed their Proposed

Findings of Fact and Conclusions of Law on March 15, 2010.

References to statutes are to Florida Statutes (2009)

unless otherwise noted. References to Florida Administrative

Code Rules covering the Florida Department of Education are

hereinafter referred to as "FDOE" Rules.

FINDINGS OF FACT

1. Respondent Barbara Paul is a teacher covered under the

Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197

(1941), as amended ("Tenure Act") and the Collective Bargaining

Agreement ("CBA") between Duval Teachers United and DCSB for

2006-2009.

2. Respondent is a tenured or experienced contract

teacher, who can only be terminated for "just cause" as defined

in the Tenure Act and the CBA.

3. Respondent has used the word "boy" on more than one

occasion to address male students.

4. Respondent has told a female student to "shut her

mouth" or "shut her face."

5. Respondent worked for DCSB as a full-time "tenured"

teacher during the 2006-2007, 2007-2008, and 2008-2009 school

years.

6. Respondent, originally born in Jamaica, moved to the

United States in March 1989, where she has remained since that

time and, with the exception of one year in 1998, has been

employed as an English/Language Arts ("E/LA") teacher for DCSB.

7. E/LA consists of primarily literacy, English, grammar,

some writing skills, and aspects of reading.

8. During the 2008-2009 school year, Respondent, a

"tenured/professional contract" teacher, was certified by the

Florida Department of Education (FDOE) to teach language arts

and was assigned to teach creative writing to 12 and 13-year-old

students (sixth grade) at Paxon.

9. DCSB is a duly-constituted school board charged with

the responsibility to operate, control, and supervise all free

public schools within the School District of Duval County,

Florida, pursuant to Section 1001.31, Florida Statutes.

10. Pursuant to her contract with DCSB, and consequent to

holding a professional teaching certificate issued by FDOE,

Respondent was, at all times material, subject to DCSB's rules

and regulations as well as all applicable Florida laws and

regulations, including Sections 1012.23 and 1012.33, Florida

Statutes, and FDOE Rules 6B-1.001 and 6B-1.006.

11. Teachers employed by DCSB are bound by a "Progressive

Discipline" Policy, which generally prohibits adverse employment

action based on misconduct unless the following steps are taken:

(a) a verbal reprimand, (b) a written reprimand, (c) a

suspension without pay, and (d) termination. The policy may be

disregarded for "some more severe acts of misconduct."

12. Respondent does not dispute that the following steps

in the Progressive Discipline Policy were taken, although she

disputes the factual particulars of such disciplinary actions:

a) September 2006, Step I Verbal Reprimand, DuPont Middle

School, based on inappropriate comments made during a parent

conference;

b) October 2006, Step II Written Reprimand, DuPont Middle

School, based on inappropriate, racial comments to students;

c) May 2007, Step III Five-Day Suspension, DuPont Middle

School, for battery upon a student;

d) February 2008, Step II Written Reprimand, Paxon Middle

School, for threatening to shove a broom down a student's

throat.

13. If the instant charges are supported, Respondent's

misconduct during school year 2007-2008 would constitute "Step

Three," the final step of the Progressive Discipline Policy,

which justifies termination of her employment.

14. The instant charges are based on an incident that

occurred on March 19, 2009, at Paxon. During the fourth period

(toward the end of the school day), six students reported to the

sixth-grade administrative office at Paxon and reported that

their creative writing teacher, Respondent, would not allow them

into her classroom. Ronnie Williams was the assistant principal

and the sixth-grade house administrator at that time.

Mr. Williams instructed the school's security officer, J.R.

Johnson, to escort the students back to the classroom to find

out what was going on, because they had no passes or referrals

from the teacher, as required by school policy. Mr. Johnson

returned about 15 or 20 minutes later with the students and

reported that, contrary to school policy, Respondent still

refused to allow them back into her class, and that she stated

she would be writing them referrals.

15. Two of the students, K.W. (female) and D.P. (male),

told Mr. Williams that Respondent had pushed K.W. and also

stepped on K.W.'s foot. D.P. stated that Respondent had hit him

in the face with a book. After that, because of the seriousness

of the allegations, Mr. Williams asked each student to complete

a written statement of what they observed in the classroom. The

students were kept separated from one another while they wrote

their statements, so that Mr. Williams could observe them.

Mr. Williams testified that the children did not have an

opportunity to speak with one another or to compare statements,

and did not collaborate in any manner when the written

statements were done. Mr. Williams then individually

interviewed each student. Each of the student's statements was

consistent with one another and with K.W.'s and D.P.'s accounts.

16. According to the students' written statements (all of

which were entered into evidence without any objection from

Respondent) and interviews, D.P. and K.W. had entered

Respondent's classroom before the final bell had rung. After

she entered the class, K.W. realized she had left her purse with

another student and stepped out of the class to retrieve it.

D.P. reported that he asked Respondent for permission to go the

restroom, which she granted. Both children had put their book

bags and books down in the classroom. D.P. reported that when

he returned, there was a line of students about four or five

deep waiting outside the classroom trying to get in. Respondent

was standing in the doorway blocking their entrance and trying

to close the door against the students. D.P. went around the

line to try to get back in the classroom, reminding Respondent

that she had given him permission to go the restroom.

Nonetheless, she would not let him back in. Instead, she

twisted D.P.'s arm to remove his hand from the classroom door

handle, pushed him back and back-handed him with a book across

the bridge of his nose and his face. When K.W. tried to enter

the classroom to retrieve her book bag, Respondent yelled at her

and pushed her back with her forearm and elbowed her two or

three times in the chest and in the course of doing so,

Respondent also stepped on K.W.'s foot and scratched her. After

striking K.W. and D.P., Respondent pushed them out of the

classroom door and sent them and four other children to

Mr. Williams, the sixth-grade house administrator, without

passes or referrals.

17. The following morning, Mr. Williams sent an e-mail to

the principal, Dr. Darrell Perry, summarizing the incident.

Mr. Williams described a telephone conversation he had with

Ms. W. (mother of K.W.), in which Ms. W. told Mr. Williams that

her daughter reported to her that Respondent had made several

derogatory racial comments to students in class, including using

the phrase "negro power," which Ms. W. found to be offensive.

18. The mothers of both K.W. and D.P. came to the school

to complete statements. Ms. P. also filed a formal complaint

against Respondent to the DCSB police officer on duty at Paxon,

Officer Green.

19. Mr. Williams received a referral from Respondent

concerning K.W. on the date of the incident, Thursday, March 19,

2009, but did not receive a referral concerning D.P. until

Monday, March 23, 2009. Mr. Williams concluded from this delay

that "the reason the referral [for D.P.] was written was because

there were allegations made against Respondent from D.P."

20. Mr. Williams also observed on the date of the incident

a recent scratch on K.W.'s arm that K.W. told him was caused by

Respondent.

21. Respondent called Ms. P. (mother of D.P.) on March 19,

2009, telling her that Respondent was writing her son up for

skipping class. When Ms. P. tried to ask her about the details,

Respondent proceeded to talk about other students in her class.

When Ms. P. asked Respondent to tell her what happened with her

son, Respondent got short with her and hung up. About five or

ten minutes later, her son, D.P., called her and told her that

when he got to the classroom, he asked Respondent for permission

to go to the restroom, which Respondent granted. When he

returned to the classroom, there was a line of children at the

door of the classroom trying to get in, and Respondent was in

the middle of an altercation with another female student, K.W.

Respondent and K.W. were "going back and forth," and D.P. said

that he saw Respondent push K.W. and then step on K.W.'s foot.

When he tried to enter the classroom, Respondent pushed him and

hit him in the face with a book.

22. When Ms. P. returned home, she received a call from

Ms. W., the mother of K.W. Prior to the telephone conversation,

Ms. P. had never spoken to Ms. W. They did not know each other

because they lived in different parts of town. D.P. and K.W.

did not have a chance to speak with each other after the

incident, because it was the end of the day and Ms. P picked up

her son from the office when he telephoned her. The story K.W.

told her mother concerning the incident with Respondent was the

"same exact thing that my son had just told me when I picked him

up from school and when he had called me."

23. Prior to this incident, D.P. had received only one

referral at any time in his school history for an altercation

with another student. Ms. P.'s testimony was consistent with

the written statement that she made on March 20, 2009, the day

after the incident.

24. At the hearing, D.P. testified that after the warning

bell had rung, but prior to the late bell ringing, he asked

Respondent if he could leave the classroom and go to the

restroom. Respondent said yes. When he was trying to get back

into the classroom, another student was also trying to get into

the class to get her things. Respondent was pushing her and

stepped on her foot. When D.P. tried to go in, Respondent

pushed him and then she hit him in the face with a book. D.P.,

a small-framed, 11-year-old male of only about five feet tall at

the time of the incident, demonstrated how Respondent had hit

him, and described the book she used as an oversized literature

book with a hard cover. He demonstrated and testified that

Respondent hit him with the book across the face, striking him

in the nose, that it hurt him when she struck him and that it

looked like it was intentional on her part and not an accident.

D.P.'s testimony was consistent with the written statement he

made to Mr. Williams on the day of the incident.

25. Upon receipt of the incident report, DCSB's Office of

Professional Standards (OPS) initiated an investigation. The

investigation was primarily handled by OPS Investigator John G.

McCallum, an experienced former detective with the Jacksonville

Sheriff's Department and investigator with the State Attorney's

Office, now serving DCSB.

26. While the principals generally handle Step I and Step

II disciplinary actions, OPS normally investigates more serious

cases, such as the instant case, alleging a battery on a

student.

27. Within days of the incident, on Monday, March 23,

2009, Mr. McCallum went to the school and interviewed Assistant

Principal Ivey Howard, who was in charge of curriculum;

Mr. Williams, the sixth-grade house administrator; student-

victim K.W.; student-victim D.P.; Security Officer Johnson; and

Christina Price, a reading resource teacher assigned to

Respondent's classroom that day. Mr. McCallum also attempted to

interview Respondent, but she elected to provide her statement

through her counsel. Mr. McCallum also reviewed all the

statements that Mr. Williams had received from the students and

Ms. P., the mother of D.P.

28. When he individually interviewed students D.P. and

K.W., Mr. McCallum asked them also to demonstrate with him what

happened, putting Mr. McCallum in the positions that they were

in relative to Respondent and the other students. This helps

him evaluate witness credibility, in that sometimes a child

witness will demonstrate details in the "role play" that he or

she may not have put down in the written statement. Similarly,

D.P. demonstrated to Mr. McCallum that Respondent "back-handed

him" with a workbook across the bridge of his nose and across

his face and yanked, twisted, and pulled his arm.

29. Mr. McCallum reported that K.W.'s and D.P.'s verbal

statements from his interviews were consistent with their and

the other students' written statements.

30. Respondent's version of the events of March 19, 2009,

differs dramatically from those of the seven student and two

adult witnesses. Respondent asserted that six students were

seven minutes late to class, yet she allowed them in the class

and wrote their names on the tardy log. She then stated that

two students, C.B. and B.P. were "skipping class" and that she

saw them at the end of the hallway. Although this detail was

not mentioned in her written statement (and is completely

contradictory to the testimony of Paxon Principal Darrell

Perry), Respondent testified at the hearing that the teachers at

Paxon were required to keep their classroom doors locked because

"this is the inner city where guns were rampant in our

classrooms and outside." She stated that someone knocked on the

classroom door, and when she opened it, three students, K.W.,

D.P., and V.C. (a male student), ran out of her classroom. She

then said that the three students stopped "at my door," and K.W.

tried to come back in to get her "stuff" from the room and in

doing so "slammed" her body into her and cursed at Respondent,

demanding her "stuff." Respondent claims to have received an

injury from that contact which was treated at an emergency walk-

in medical clinic later that evening. She further testified

that V.C. and D.P. "forcefully kept the door ajar" as she

attempted to close it "to diffuse the situation." Further,

contrary to all of the students' statements, Respondent denies

pushing or striking any student, although she admits she may

have "accidentally" stepped on K.W.'s foot. In her written

statement, she asserted that she "wrote referrals on all

students who were outside, except A.W." In fact, the only

referrals she wrote were for K.W. and D.P.

31. Mr. McCallum found the interviews with the two student

victims to be credible and consistent. Conversely, he found

Respondent's statement to be markedly distinct from the other

statements.

32. Respondent's claim that she was injured and sought

medical treatment is doubtful when she failed to report any such

claim to the school's administration nor produce at any time any

records or medical reports to support this claim.

Prior Discipline: A Pattern of Similar Misconduct

Paxon Middle School – February 2008 (Step II Written Reprimand)

33. Respondent was hired by Dr. Darrell Perry, principal

of Paxon, to teach English and Language Arts to sixth-grade

Paxon students beginning with the 2007-2008 school year, which

was also Dr. Perry's first year at Paxon. Dr. Perry selected

Respondent from the "voluntary surplus list" and interviewed her

for the position. Based on her experience as a "seasoned

English language arts teacher," he hired Respondent. Dr. Perry

was aware of Respondent's prior disciplinary history when he

brought her to Paxon, partly because Respondent had to serve out

a suspension she received while at DuPont the prior school year

for a Step III disciplinary action charging battery upon

students. Notwithstanding her prior disciplinary history,

Dr. Perry testified that he believed Respondent possessed the

right skills and was willing to give her an opportunity to grow

in a different setting.

34. Nonetheless, on May 24, 2008, Dr. Perry issued to

Respondent a Step II Written Reprimand for Respondent's

"inappropriate and offensive" remarks made and actions taken

with female student, A.H., on February 14, 2008, in which A.H.

alleged that Respondent placed a broom handle in A.H.'s face and

stated, "I will shove this broom down your throat." Before

issuing the discipline, however, Dr. Perry referred the matter

to the OPS (Director John Williams and Investigator Leroy

Starling) to investigate. Based on their investigation,

interview of Respondent, and review of witness statements,

Investigator Starling issued his report sustaining the

allegations.

35. Allen Moore, who was, at the time of the A.H.

incident, assistant principal at Paxon and eighth-grade house

administrator, performed the initial investigation of the

alleged misconduct, which was part of his responsibilities as

house administrator. Mr. Moore recalled that A.H. came to his

office, directly from Respondent's class, and told him that

after a verbal exchange between the two, Respondent held a broom

handle in A.H.'s face and threatened to shove the broom handle

down her throat. Mr. Moore then selected at random five other

students from Respondent's class, those whom he knew to be

credible and good students, and separately interviewed them and

asked them to prepare statements. He also asked A.H. to prepare

a written statement. Each student confirmed A.H.'s statement

that Respondent threatened to put the broom handle down A.H.'s

throat. Mr. Moore concluded that the incident took place as

A.H. had stated.

36. In direct contrast to this set of facts, according to

Respondent, one of the other female students in the class picked

up the broom and asked if she could sweep the floor. Respondent

testified that she thought the student was going to hit A.H. or

sweep her feet, because A.H. had tripped her. She asked the

student to put the broom away. Respondent took the broom from

her and was on her way to put it away, stating that she was

walking away from A.H., when A.H. began cursing at her, telling

Respondent to move or she would "beat" her "a - - " with the

broom. Respondent stated that she responded: "and what should

I do, stick [the broom] in your mouth?"

37. With respect to the level of discipline he gave to

Respondent for the incident, a Step II Written Reprimand,

Dr. Perry testified that while he could have given her a Step

III termination based on the allegations of the A.H. incident

and Respondent's previous Step III discipline issued at Dupont

for similar behavior, he decided to give her a Step II.

Dr. Perry believed Respondent had some strengths that she could

contribute at Paxon. He hoped to rehabilitate her.

38. Shortly before the end of the 2006-2007 school year

and before requesting a voluntary transfer to Paxon, Respondent

received a five-day suspension for battery upon two DuPont

students and for physically blocking another student from

leaving her classroom in three separate incidents that took

place within days of one another, on April 24, May 2, and May 3,

2007.

April 24, 2007 - Alleged Battery of Female Student P.C.

39. In the first occurrence on April 24, 2007, a female

seventh-grade student, P.C., was trying to leave Respondent's

classroom. P.C. reported that in an attempt to keep her from

leaving the classroom, Respondent grabbed P.C.'s ID lanyard,

which was around P.C.'s neck, as P.C. walked by Respondent and

Respondent yanked her back, leaving her with a rope burn mark on

her neck.

40. P.C. reported the incident right away to Assistant

Principal Shannon Judge, who testified at the hearing and,

shortly after the occurrence, had prepared a written statement

to then-school Principal Gary Finger summarizing the incident

and her investigation. P.C. stopped Ms. Judge in the hallway,

coming straight from the classroom moments after the incident

with Respondent, and was visibly upset. P.C. told Ms. Judge

that Respondent had stopped her from leaving the room and had

grabbed her by her badge as she attempted to leave, which she

wore on a lanyard around her neck. P.C. said to Ms. Judge,

"look at this," and P.C. turned around and held up her hair in

the back. Ms. Judge could see "one dark red line and a smaller

red line" on the back of P.C.'s neck, which was not a cut, but

which looked like a "burn" where the lanyard had been pulled.

P.C. told her that some students had been told by Respondent to

stay after class, but that P.C. was not one of them. When P.C.

tried to leave the classroom, Respondent blocked the doorway.

As she attempted to go around Respondent, Respondent grabbed her

ID lanyard. Ms. Judge, who was on her way to another assignment

in the lunch room, instructed P.C. to go to Ms. Judge's office

and fill out an incident form. When Ms. Judge returned to her

office approximately 45 minutes later, she reviewed P.C.'s

statement, interviewed her, and took a photograph of the marks

on the child's neck, which by then had somewhat faded.

41. P.C. had listed some witnesses in the classroom to the

event, whom Ms. Judge interviewed and asked to complete written

statements. Ms. Judge also "pulled some random kids from the

class" who were not listed on P.C.'s list, each of whom also

individually gave written statements and were separately

interviewed by Ms. Judge. Ms. Judge also called Respondent and

took a verbal statement from her over the telephone.

42. Respondent relied upon her written statement made

through her attorney, delivered to DCSB nearly three months

later on July 16, 2007, concerning the incident with P.C.

43. Respondent admitted she did have "words" with P.C.,

and that P.C. was trying to leave her class when she was not

supposed to, but that she had not grabbed P.C. by her lanyard.

Perhaps, she stated, her lanyard "got caught" on Respondent's

arm as P.C. tried to push past her. In her written statement,

Respondent also speculated that the marks on P.C.'s neck may

have been "self-inflicted or occurred at another time and

place." When further questioned about that statement at the

hearing, Respondent replied: "She did yank on her lanyard, but

I don't know if that was sufficient to leave a mark." When

questioned whether Ms. Judge would have any reason to lie about

what P.C. told her and the marks on P.C.'s neck that Ms. Judge

observed, Respondent replied: "I don't know of any reason."

Respondent's statement and testimony, with no evidence to

support it, does not support her version of the events.

44. Based on Ms. Judge's investigation, the consistency

among all the student witness statements with P.C.'s account,

the fact that P.C. was a good student who rarely, if ever,

received any referrals or got into trouble, and Ms. Judge's

observation of the red marks on P.C.'s neck within moments after

the altercation, Ms. Judge concluded that the P.C.'s allegations

were substantiated and recommended to Mr. Finger that Respondent

should be disciplined for her actions.

May 2, 2007 – Alleged Battery of Male Student D.W.

45. On May 2, 2007, within days of the P.C. incident,

Respondent had taken her class out into the hallway so that some

of the children could use the restroom. One of the male

students, D.W., came out of the restroom, and, according to

Respondent, she thought he had not washed his hands and was

attempting to wipe his hands on Respondent. Carmen Polenco, a

science and math teacher for seven years at DuPont and a former

director of a program in New York treating women dually

diagnosed with psychiatric problems and drug additions and their

infant children, was coming out of the administrative office on

May 2, 2007, and walking down the main hallway where Respondent

and her students were located. As Ms. Polenco approached, she

heard students yelling "let him go, let him go" and saw that

Respondent had grabbed a male student, D.W., by the collar of

his shirt held up around his throat and was pushing him

backwards down the hallway toward Ms. Polanco, saying something

like "Oh, no you won't" to the student. Ms. Polanco

demonstrated at the hearing how Respondent was holding D.W. with

one hand around his shirt collar and her other hand in the air.

Ms. Polanco told Respondent to stop, and she let D.W. go. D.W.

yelled to her, "she grabbed me and she wouldn't let me go and I

was scared she was going to hit me." After Respondent let D.W.

go, Ms. Polanco noticed that Respondent had scratched the

student's neck and broken his necklace. Respondent told

Ms. Polanco that the student had placed his hands, open palm on

the top of her shoulder. Respondent was "very angry" by this

and proceeded to grab him, because, as she stated to Ms. Polanco

at the time, "I did not want his dirty hands on me."

46. Ms. Polanco also made a written statement to Assistant

Principal Steele the day after the incident. Mr. Steele had

also observed some of the incident, and had also memorialized

his observations in a memorandum to Mr. Finger one day later.

47. Respondent's version of events again differs

dramatically from all the other witnesses' testimony. Again,

Respondent relied on her written statement of July 16, 2007,

which she affirmed at the hearing.

48. Respondent admitted that she held D.W. by his lapel

(not his collar), but stated that she was walking with him "side

by side," and not walking him backwards down the hallway as

Ms. Polanco observed. At the hearing, Respondent did not have

any explanation for Ms. Polanco's contradictory testimony other

than that she "was not within close proximity enough to see what

happened." In light of Ms. Polanco's testimony that she had a

clear view of exactly what Respondent was doing, and the other

witness testimony, Respondent's testimony is not credible.

May 3, 2007 – Blocking Student's Exit

49. One day later, while he was still in the process of

writing up Respondent for the previous two incidents, Mr. Finger

received a phone call in his office from Respondent telling him

that one of her students would not leave her classroom. When he

got there, Mr. Finger took the student out in the hallway and

asked him why he did not leave the room. The student responded

that it was because Respondent was blocking the door and would

not let him out. Mr. Finger then selected some other students

at random from the class to find out if the student was telling

the truth, and the other student statements were consistent –

that Respondent had blocked the door.

50. Respondent's statement summary as to these three

incidents is typical of her response of outright and blatant

denial to all of the allegations of misconduct that have been

lodged against her over a period of years and across two schools

and administrations. Despite credible evidence to the contrary,

Respondent has repeatedly placed the blame on the very students

that she victimized.

51. As a result of the three incidents, on May 23, 2007,

Mr. Finger recommended that Respondent receive a Step III five-

day suspension, which was approved by DCSB, and which Respondent

served out after she voluntarily transferred to Paxon.

DuPont Middle School – October 2006 (Step II Written Reprimand)

52. Respondent received a Step II Written Reprimand for

comments that she made in class and during a parent-teacher

conference in October 2006, in which Mr. Finger and then-

Assistant Principal Loretta Hines were also present. The

meeting was initiated by the female parent when her son came

home and told her that Respondent exhibited prejudicial behavior

toward the African-American children as compared to the white

children, and made racist comments in the classroom. For

example, the child told his mother that Respondent would let the

white children go to the bathroom, but not the African-American

children, and that she told a white student that she had to send

him to a "time-out" because she didn't want the others to think

she was a racist. She also referred to African-Americans as

"negroes" and called male black students "boy." During the

conference, Respondent told the parent that she had no problem

referring to African-American male students as "boy" because in

her country of origin, Jamaica, this was not an offensive

salutation. Respondent made other comments in the conference

that angered the parent, and "embarrassed" and "disgusted"

Ms. Hines and Mr. Finger. At that time, Respondent had been in

the United States for approximately 16 years.

53. Respondent stipulated that she used the term "boy" to

address male students, but denies she used it specifically with

African-American male students. At the hearing, rather than

testify concerning the specific allegations of her misconduct,

Respondent "reaffirmed" the written statement she made to

Principal Finger on October 18, 2006, in which she denied being

a racist, although she admitted that "sixteen years should be

long enough to be able to use the proper terminology. However,

habits do not just disappear overnight."

DuPont Middle School – September 2006 (Step I Verbal Reprimand)

54. Respondent received a Step I verbal warning for

telling students to "shut their mouths" or "shut their faces."

In her written statement, Respondent stated that she told a

female student on at least one occasion to "shut her face

because her face was in mine." She also stipulated to this fact

in her pretrial stipulation.

CONCLUSIONS OF LAW

55. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding, pursuant to Sections 120.569, 120.57(1), 120.65, and

1003.57(3)(i)(e), Florida Statutes, and Florida Administrative

Code Rule 6A-6.03311.

56. Petitioner has the burden to prove the allegations in

the petition. See Schaffer ex rel. Schaffer v. Weast , 546

U.S. 49 (2005); see also Devine v. Indian River County Sch. Bd. ,

249 F.3d 1289, 1291-92 (11th Cir. 2001); cert. denied , 537 U.S.

815 (2002).

57. While the standard of proof applied to license

revocation cases is clear and convincing evidence, the standard

of proof applied to employment termination cases is a

preponderance of the evidence. See Ferris v. Austin , 487 So. 2d

1163 (Fla. 5th DCA 1986); see also So. Fla. Water Mgmt. Dist. v.

Caluwe , 459 So. 2d 390 (Fla. 4th DCA 1984).

58. Respondent is an instructional employee as defined by

Subsection 1012.01(2), Florida Statutes. DCSB has the authority

to suspend or terminate instructional employees pursuant to

59. Respondent was discharged "for cause," as that term is

defined under Sections 3 and 4 of the Tenure Act.

60. Section 3 states that a "tenured" teacher shall not be

discharged or demoted unless there is a finding of one or more

causes outlined at Section 4.

61. In turn, Section 4 lists the following five "causes"

for discharge or demotion of a teacher: (a) immoral character

or conduct, or physical or mental incapacity to perform one's

duties; (b) persistent violation or willful refusal to obey

state laws or regulations adopted by authority of law relating

to public schools; (c) excessive absence or refusal and

inexcusable failure to discharge one's duties of employment;

(d) dishonesty while employed or conviction of a crime of moral

turpitude; and (e) professional incompetency.

62. According to the 2009 Notice of Termination, the

specific "cause" for termination is Respondent's violation of

FDOE Rules 6B-1.001(2) and (3), and 6B-1.006(3)(a) and (e).

63. Florida Administrative Code Chapter 6B-1 is the "Code

of Ethics of the Education Profession in Florida." Conduct

which violates the Code of Ethics and impairs a teacher's

effectiveness provides ground for discharging a teacher's

employment and taking adverse action on the teacher's

professional teaching certificate.

64. As the statutory language suggests, the acts and

omissions listed in the statute, such as "misconduct in office,

incompetency, gross insubordination, willful neglect of duty, or

a crime involving moral turpitude" are illustrative, not

exhaustive, and other acts or omissions may also constitute

"just cause." Dietz v. Lee County Sch. Bd. , 647 So. 2d 217

(Fla. 2d DCA 1994) (Blue, J., specially concurring).

65. FDOE Rule 6B-1.001(2) states that:

The educator's primary professional concern

will always be for the student and for the

development of the student's potential. The

educator will therefore strive for

professional growth and will seek to

exercise the best professional judgment and

integrity.

66. FDOE Rule 6B-1.001(3) states that:

Aware of the importance of maintaining the

respect and confidence of one's colleagues,

of students, of parents, and of other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

67. FDOE Rule 6B-1.006, which sets out the "Principles of

Professional Conduct for the Education Profession in Florida"

states, in pertinent part, that:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student's academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

68. Any conduct which violates the Principles of

Professional Conduct for the Education Profession in Florida

supports dismissal of a teacher. See Duval County Sch. Bd. v.

Trawick , 1996 Fla. Div. Adm. Hear. Lexis 3209 (DOAH Case

No. 95-5328) (Petitioner/school board alleged in its notice of

dismissal that respondent violated Rules 6B-1.006(5)(d) and

6B-1.006(5)(h), and was thereby subject to dismissal based upon

a preponderance of the evidence). See also Spurlin v. Sch. Bd.

of Sarasota County , 520 So. 2d 294 (Fla. 2d DCA 1988) ("Seven

deadly sins" enumerated in statute apply to suspension or

dismissal of personnel under contract).

69. The term "misconduct" under FDOE Rule 6B-1.001 is to

be broadly interpreted to achieve the underlying intention of

the Code of Ethics: to maintain a high moral standard for

members of the education profession. Adams v. State Prof'l

Practices Counsel , 406 So.2d 1170, 1172 (Fla. 1st DCA 1981); and

Negrich v. Dade County Bd. of Public Instruction , 143 So. 2d 498

(Fla. 3d DCA 1960).

70. To establish a violation of FDOE Rules 6B-1.001

or 1.006 the misconduct at hand must be "so serious as to impair

the individual's effectiveness in the school system." Alachua

County School Bd. v. Carlisle , 2007 Fla. Div. Adm. Hear. Lexis

76 (DOAH Case No. 06-3812) ( citing MacMillan v. Nassau County

Sch. Bd. , 629 So. 2d 226, 228 (Fla. 1st DCA 1993)).

71. Such "impairment" may be shown by direct evidence or

may be inferred from the misconduct itself. See Palm Beach

County Sch. Bd. v. Scott , 2009 Fla. Div. Adm. Hear. Lexis 646

(DOAH Case No. 08-2831) (". . . the School Board must either

offer . . . evidence that her effectiveness was impaired, or the

conduct must be so serious that it would be appropriate to infer

from the conduct itself that her effectiveness was impaired.").

See also Lee County Sch. Bd. v. Lewis , 2005 Fla. Div. Adm. Hear.

Lexis 1327 (DOAH Case No. 05-1450) ("A teacher's misconduct can

be so serious that it can be reasonably inferred from the

misconduct itself that the teacher's effectiveness in the school

system is impaired.") citing Purvis v. Marion County Sch. Bd. ,

766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highlands County

Sch. Bd. , 752 So. 2d 127 (Fla. 2d DCA 2000).

72. Conduct which breaches the trust and confidence needed

in a healthy student-teacher relationship raises an inference of

impairment. See Miami-Dade County Sch. Bd. v. Spivey , 2007 Fla.

Div. Adm. Hear. Lexis 126 (DOAH Case No. 06-1073) (Finding an

inference of impairment based on dishonesty and stating "[A]s a

teacher and coach, Sapp was required to be a role model for his

students. To be effective in this position of trust and

confidence, he needed to maintain a high degree of

trustworthiness, honesty, judgment, and discretion.").

73. Conduct which inspires negative feelings in the

classroom, by definition, seriously impairs a teacher's

effectiveness and supports not only termination of one's

employment, but also adverse action one's teaching certificate

based on violations of FDOE Rules 6B-1.001 and 6B-1.006. See

Castor v. Roberts and Marsh v. Roberts , 1992 Fla. Div. Adm.

Hear. Lexis 6910 (DOAH Case No. 91-6677) (Conduct contrary to

Rules 6B-1.001 and 6B-1.006, which produces negative feelings in

the classroom, diminishes the effectiveness of the appellant's

teaching ability. Such conduct is a valid ground for suspension

of a teaching certificate and dismissal from employment.).

74. Making inappropriate comments to students can violate

FDOE Rules 6B-1.001 and 6B-1.006. See Roberts v. Castor , 629

So. 2d 311, 313 (Fla. 1st DCA 1993) (students' testimony "that

they and other students were uncomfortable, embarrassed, mad, or

upset about the sexual innuendoes and comments" supported

termination of employment based on violations of Rules 6B-1.001

and 6B-1.006). Accord , Castor v. Wright , 1988 Fla. Div. Adm.

Hear. Lexis 4361 (DOAH Case No. 92-4906) (Action of teacher in

subjecting students to sexual suggestion and inappropriate

language constitutes fostering of, as opposed to protection

from, condition harmful to learning, health or safety. His

conduct constituted exposure of those students to unnecessary

embarrassment or disparagement.); see also Educ. Prac. Comm'n v.

Gryte , 1986 Fla. Div. Adm. Hear. Lexis 4038 (DOAH Case

No. 85-1446) (A teacher's use of inappropriate language,

physical gestures and promotion of a classroom structure which

allowed inappropriate behavior, confrontations, and verbal and

physical attacks constitutes a violation of Rule 6B-1 and

supported revocation of this teaching certificate.).

75. Making inappropriate racial comments constitutes a

violation of FDOE Rule 6B-1.001(3). See Gallagher v. Jenkins ,

2001 Fla. Div. Adm. Hear. Lexis 2366 (DOAH Case No. 00-3345PL)

("Petitioner has established that Mr. Jenkins violated

Rule 6B-1.001(3), Florida Administrative Code, by his

[aggressive] actions towards [teachers and school

administrators], his calling Haitian-American students monkeys,

his saying that he had a gun, his calling another teacher

'Deadwood,' and his 'nothing' letter concerning [a school

administrator].").

76. Physical conduct against a student is grounds for

termination of a teacher because it violates the teacher's Code

of Ethics, FDOE Rule 6B-1.006, impairs effectiveness as a

teacher, and constitutes misconduct in the office. See Miami-

Dade County Sch. Board v. Wilner Saint Juste , DOAH Case

No. 00-2937 (Final Order Aug. 22, 2001) (Respondent pushed,

grabbed and choked a student in between two water fountains,

which was witnessed and testified to by three students); Orange

County School Board v. Bingham , 1993 Fla. Div. Adm. Hear. Lexis

5087 (DOAH Case No. 92-3138) (Respondent's continued failure to

comply with directives given to maintain class order resulted in

injury to student when Respondent shoved student into a locker,

therefore causing school board to lose confidence in

Respondent's effectiveness as a teacher and justified

Respondent's termination); Miami-Dade County Sch. Board v.

Wagensommer , 2009 Fla. Div. Adm. Hear. Lexis 641 (DOAH Case

No. 08-2680) (School Board has "just cause" to terminate

Respondent's employment because she pushed and grabbed students,

forced them to stand for long period of time with book bags on

their heads, and threatened to throw students out of the

classroom window, all adding up to "misconduct in the office");

Miami-Dade County Sch. Board v. Moore , 2004 Fla. Div. Adm. Hear.

Lexis 2445 (DOAH Case No. 03-3102) (Respondent was found to

commit misconduct in the office and that "just cause" existed

for suspension and dismissal because of Respondent's "use of

violent, abusive, and inappropriate language with students and

wholly inappropriate physical restraint of the students

constitutes violations of 6B-1.006(3)(a) and (e)" and "are so

serious as to impair his effectiveness in the school system.");

Sch. Bd. of Miami-Dade County v. Al-Quddus , 2000 Fla. Div. Adm.

Hear. Lexis 4900 (DOAH Case No. 98-4624) (Respondent's

effectiveness as a classroom teacher was found to be impaired

and violated the standards for professional conduct when

Respondent "physically mistreated a student, subjected students

to derogatory names, and used unprofessional and inappropriate

language in the classroom" which justified employment

termination).

77. The evidence clearly demonstrates that Respondent,

engaged in a long-term pattern of inappropriate physical contact

and language with her students. The inappropriate acts include

telling students to "shut their face"; referring to male

African-American students as "boy" and making other

inappropriate racial comments; threatening to "shove a broom

down" a female student's throat; yanking a female student by her

ID lanyard around her neck, causing a mark on the child's neck;

grabbing a student by his collar and pushing him down the

hallway, scratching his neck and breaking his necklace in the

process; repeatedly pushing and shoving a female student with

her forearm and elbow, causing a scratch on the child; and

hitting a small-framed male student across his face with a book.

Through her actions, Respondent has actually created and

fostered conditions that were harmful to her students' mental

and physical health and safety, exposed students to unnecessary

embarrassment or disparagement, and discriminated against

students based on their race and color, all in violation of the

teacher's Code of Ethics. This type of conduct clearly provides

grounds for dismissal.

78. Respondent's behavior over a period of years, in two

schools, and across two administrations, demonstrates a pattern

of misjudgment and willful failure to comply with state and

district rules and regulations. See Alachua County School Bd.

v. Mosley , 1998 Fla. Div. Adm. Hear. Lexis 5473 (DOAH Case

No. 97-1680) ("[Respondent's] prior acts of misconduct may be

considered in determining the existence of proper cause for

termination or discipline.") ( citing C.F. Industries, Inc. v.

Long , 346 So. 2d 864 (Fla. 2d DCA 1978)); State v. Wadsworth ,

210 So. 3d 4 (Fla. 1968); Johnson v. Sch. Bd. of Dade County,

Florida , 578 So. 2d 387 (Fla. 3d DCA 1991). Respondent's

refusal to acknowledge few, if any, of her transgressions, even

in the face of overwhelming evidence, shows her lack of

understanding, or even disregard, of the negative impact of her

actions on the students entrusted to her care.

79. Petitioner proved by a preponderance of the evidence

that Respondent violated Florida Administrative Code

Rules 6B-1.001(2) and (3), and 6B-1.006(3)(a) and (e).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Duval County School Board enter a

final order terminating the employment of Barbara Paul as a

teacher.

DONE AND ENTERED this 6th day of May, 2010, in Tallahassee,

Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May, 2010.

COPIES FURNISHED :

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Carol Mirando, Esquire

City Hall

St. James Building

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ed Pratt-Dannals, Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.