13-001515TTS Duval County School Board vs. Donna James Status: Closed Recommended Order on Tuesday, July 23, 2013.

Summary: School Board failed to prove just cause exists for termination of teacher's employment contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1515 TTS

DONNA JAMES ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing wa s conducted in this

case on July 1 - 2, 2013 , in Jacksonville , Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Craig D. Feiser, Esquire

David J. DÓAgata, Esquire

Duval County School Board

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: Harold S. Lippes, Esquire

Lippes & Bryan, P.A.

700 Ponte Vedra Lakes Blvd.

Ponte Vedra Beach, Florida 32082

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

terminate Respondent , Donna Jame s Ó (ÐMrs. JamesÑ) employment

contract with Petitioner , Duval County School Board (the "School

Board"), bas ed on the fact that Mrs. James failed to adequately

supervise her students .

PRELIMINARY STATEMENT

By letter dated March 25, 2013, Nikolai P. Vitti,

Superintendent of Schools , notified Donna James that the School

Board had approved termination of Mrs. Jam es ' employment

contract effective immediately . Mrs. James requested a formal

administrative hearing to contest the School Board Ós action.

At the final hearing, the School Board called the following

witnesses: Dr. Deirdra McDowell - Sutton (ÐDr. SuttonÑ), former

principal of Southside Estates Elementary School (the ÐSchoolÑ);

Zayna Harb, instructional coach at the School; Beverly Walker;

Sonita Young, human resources officer; and T.S., a student . The

School Board 's Exhibits 1 - 10 and 14 - 16 were admitted int o

evidence without objection. Mrs. James testified on her own

behalf and called three other witnesses: John James, her

husband; Brenda Gillrup, former teacher; and Carolyn Solomon,

teacher at the School . Mrs. JamesÓ E xhibit 1 was admitted into

evidence. (All hearsay evidence was admitted subject to

corroboration by competent, non - hearsay evidence. To the extent

such hearsay was not corroborated, it will not be used as a

basis for any finding herein.)

The parties advised the undersigned that a transcr ipt of

the final hearing would be ordered. They were given ten days

from the date the transcript was filed at DOAH to submit

proposed recommended orders. The parties were also given the

right to submit written closing statements. The transcript was

file d on July 15, 2013 . The School Board filed a Closing

Argument and a Proposed Recommended Order on July 17, 2013.

Mrs. James filed a Closing Memorandum on July 18, 2013. Each

partyÓs submission was considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. T he School Board is responsible for hiring, firing and

overseeing all employees at the School , which is a n elementary

school within the Duval County Public School system .

2. At all times relevant hereto, Mrs. James was a teacher

at the School. At the time of her termination of employment by

the School Board, Mrs. James was teaching kindergarten at the

School. She had been teaching at the School for approximately

17 years, primarily teaching in first and second grades .

Mrs. James w as certified in grades one through five .

3. E ach year she taught at the School, Mrs. James received

satisfactory annual evaluations concerning her performance as a

teacher. There were some comments on her evaluation forms in

the category of classroom m anagement that indicate some minor

problems in that area, but none of the comments suggest

Mrs. James was less than satisfactory. For example, Ðclassroom

management skills are improvingÑ (2011); Ðneeds to be more

consis tent with consequencesÑ (2001). Oth er than those

comments, all the evaluations had either no comments or had more

positive comments.

4. There was, surprisingly, no evaluation form in

Mrs. JamesÓ employee file for the 2011 - 2012 school year, the

year just prior to the year Mrs. JamesÓ employ ment contract was

terminated.

5. Dr. Sutton became principal of the School in 2009. Her

initial assessment of Mrs. James was that she was a competent

teacher. Dr. Sutton later came to believe that Mrs. James had

some ÐissuesÑ with classroom managemen t. Dr. Sutton Ós opinion

of Mrs. James appears to be the impetus for the School BoardÓs

action seeking termination of Mrs. JamesÓ employment contract.

( When asked upon being sworn in at final hearing what her

ÐoccupationÑ was, Dr. Sutton replied ÐPrincipa l of [the

School].Ñ However, during cross - examination Dr. Sutton said she

was not retained as p rincipal at the School for the upcoming

school year. The rationale given to her for non - retention was

Ðdata trends and other issues.Ñ Dr. SuttonÓs credibility was

negatively affected by her initial failure to be forthright

about her employment status. )

6. According to Dr. SuttonÓs sworn testimony, she visited

Mrs. JamesÓ classroom regularly , including formal visits at

least every two months and informal visits Ðfrequently.Ñ

Mrs. James remembers only two formal visits and almost no

informal walk - through visits. Mrs. Gillrup, a retired teacher

who came to assist Mrs. James two days a week for the entire

school year, never remembers seeing Dr. Sutton visit the r oom.

Dr. Sutton, by her own admission, did not have an assistant

principal and was thus spread thin concerning her administrative

duties. In light of contradictory testimony, and the fact

Dr. Sutton did not have an assistant principal to give her more

ti me, Dr. SuttonÓs testimony lacks credibility in that regard.

7. There are four separate incidents which form the basis

of Dr. SuttonÓs decision to pursue termination of Mrs. JamesÓ

employment contract. Each will be addressed below.

The Stabbing Inciden t 1

8. On or about December 13, 2010, Mrs. James was teaching

a first grade class. On that day, one student stabbed another

student with a pencil, resulting in injuries to the second

student. The School Board provided no direct evidence as to

what tran spired in the classroom other than the final result,

i.e., one student stabbed another . According to Mrs. James, the

event occurred as follows: Two boys were engaged in a fight in

her classroom . The aggressor was an Exceptional Student

Education (ESE) s tudent with Ðspecial needs.Ñ Mrs. James

separated the boys, then took one of the students directly to

the office in order to keep the boys from fighting . While she

was gone Î - for approximately five minutes Î - the ESE student

attacked another student wit h his pencil , stabbing him in the

neck and head .

9. A Department of Children and FamiliesÓ investigation

was conducted in that case. The case was closed with a

Ðverified for inadequate supervisionÑ designation. No evidence

from the original investigatio n was provided in the instant

matter. There is no evidence that Mrs. James was disciplined

because of that incident.

The Playground Incident

10. On March 3, 2012, Mrs. James received a verbal

reprimand for failing to supervise two students on the

playgr ound. No evidence concerning the specific facts of the

situation was presented by the School Board. There is no

evidence as to how Dr. Sutton even found out about the alleged

incident. Rather, the School Board simply alleges that

Mrs. James failed to su pervise two students properly , resulting

in the reprimand .

11. Mrs. James explained the event as follows: On the day

in question, her class was on the playground along with students

and teachers from several other classes. When it was time for

her cla ss to go, Mrs. James blew her whistle twice, summoning

the students to line up. When the students gathered, Mrs. James

went outside the playground area to line up and conduct her

student check. At that time, she found that one student (not

two, as allege d) was missing. She was still in visual contact

with the playground where other teachers and their classes were

still located, so she sent two of her more responsible students

back to find the missing student. She then proceeded further

along the sidewal k in the direction of her classroom, never

losing visual sight of the playground. When the two scouts

returned with their wayward fellow student, Mrs. James took them

and the rest of the class back to the classroom.

12. At no time was the ÐlostÑ student ever without adult

supervision. Other teachers were in the playground area with

their classes. Mrs. James could see the playground at all

times. There was no failure to supervise her students.

13. Mrs. JamesÓ explanation of the incident was considered

by Dr. Sutton to be placing blame on the students rather than

accepting her own culpability. Mrs. James said there was no

ÐblameÑ ; rather, a child simply did not hear the whistle and had

to be retrieved from the playground.

The Extended Day Student Incide nt

14. On November 14, 2012, one of Mrs. JamesÓ kindergarten

students ended up on board a school bus after school even though

the student was not a bus rider. Again, the School Board

provided no evidence as to how this mistake happened, only the

final re sult, i.e., the child was improperly on the bus. When

the bus driver realized the fact, he returned the child to

school. Dr. Sutton then went to speak with the childÓs parent,

who was naturally concerned about the incident.

15. Mrs. James explained th e situation as follows: The

boy was the only child in her classroom who was on Ðextended

day,Ñ meaning that once all the other students left school, he

would remain with a group of students for further instruction

and supervision. Mrs. JamesÓ routine at the end of the day was

to line her students up at her classroom door. The extended day

student would be released from the classroom first. He would go

into a general purpose area right outside the classroom. The

child was directed to a carpeted area whe re he would sit with

other kindergarten or first grade extended day students. These

students were under the supervision of one or two other

teachers. Once that child was safely seated on a carpet,

Mrs. James would tend to her other students. Her bus rid er

students were sent down to Ms. SolomonÓs room, which was

separated from Mrs. JamesÓ room by an unused classroom.

Ms. Solomon would, in turn, send her car rider students down to

Mrs. JamesÓ room. It was Mrs. JamesÓ duty to then get the car

rider studen ts to the appropriate area for pick - up. Mrs. JamesÓ

extended day student and bus rider students thus went under the

supervision of someone else.

16. On the day in question, Mrs. James sent her extended

day student out to the common area as per usual. On ce he was

seated on the carpet, she sent her bus riders down to

Ms. SolomonÓs class and gathered Ms. SolomonÓs car riders.

Mrs. James took the car rider students to the student pick - up

area. Upon arrival in that area, her students were turned over

to oth er teachers assigned to assist them. Likewise, there were

teachers assisting the bus riders, making sure the right

students got on the right bus. Teachers assigned to each area

were generally familiar with the students and would likely know

if a student was not in the appropriate area.

17. D espite the various safeguards in place, on

November 12, 2012, the extended day student from Mrs. JamesÓ

classroom ended up getting on a bus. How he was able to slip

away from the extended day area, avoid detection by the various

teachers stationed at the bus area, and get on a bus is not

clear. Ms. Solomon said the dismissal time was quite confusing

and somewhat chaotic, so if a child did get to the wrong place,

it was somewhat understandable. That is why there are other

safeguards in place.

18. Dr. Sutton assumed that since the extended day student

was from Mrs. JamesÓ class room, she must be responsible for him

getting on the bus . Dr. Sutton issued a written reprimand to

Mrs. James for her failure to properly supe rvise the extended

day student. Mrs. James does not agree that she breached her

duty in any fashion. Rather, the child somehow managed to evade

each and every safeguard in place, ending up on a bus he was not

supposed to be riding.

19. The School Board alleged in its letter of termination

that another of Mrs. JamesÓ students had improperly gotten on a

bus earlier in the school year. Dr. Sutton testified that she

spoke to Mrs. James about the incident, giving her a verbal

reprimand. Mrs. James has no re collection of ever being advised

of such a situation. Based upon Mrs. JamesÓ demeanor and the

fact there is no written memorialization of such an event ever

occurring, Mrs. JamesÓ version of the story is more credible.

It is possible Dr. Sutton was mista ken or confused the event

with another teacherÓs student. It is also possible that, as

Mrs. James believes, Dr. Sutton fabricated the first incident.

There is no evidence to either support or disprove that

contention.

20. Mrs. James was never interviewe d or asked about the

extended day student bus incident before the reprimand was

issued . She was not asked to explain or provide her perspective

of what had happened. Nonetheless, the School issued a written

reprimand to Mrs. James as a result of the inci dent. At that

time, Mrs. James did not realize she had the right to submit a

written response to the allegation, so she did not do so . 2

21. When Mrs. James was summoned to the School to receive

her written reprimand, her husband accompanied her for moral

support. Mr. James is also an educator, working at another

school within the Duval County school system. 3 As they sat in an

outer office waiting to be called in to receive the reprimand,

Mrs. Walker, a school district employee, called Mr. James (only)

i nto the office. At that time, he was given what he described

as a ÐNo Trespass AffidavitÑ which said that he could not be

present on the School campus. He had no idea why he would be

prohibited from being on the campus where his wife taught

school. He k new of no offense he had committed to warrant such

a prohibition. This procedure reeks of impropriety, especially

when considering the SchoolÓs failure to even ask Mrs. James her

perspective of what had transpired in the incident for which the

reprimand w as being issued.

The Sexual Contact Incident

22. On March 1, 2013, the last and arguably most serious

alleged situation involving Mrs. James occurred. On that date,

it was reported that two students in Mrs. JamesÓ class were

engaged in a sexual act or i n sexual touching of some kind.

23. At about 10: 2 0 a.m. , on that day, Mrs. James was

approached by one or more of her students reporting that two of

the boys in the class, T. S . and M.M., were doing naughty things

under the table where they were sittin g. According to the

report, M.M. approached T. S . and asked him if M.M. could put his

mouth on T. S .Ós penis like he had seen someone do on television.

T. S . initially rejected the offer, but M.M. persisted. Then

T. S . zipped down his pants as M.M. climbed under the table.

M.M. then either touched T. S .Ós penis or put his mouth on it.

24. When Mrs. James was advised of this , she called M.M.

and T. S . to her desk and admonished them for t he i r behavior.

Neither boy admitted to any sexual act, only saying th at T. S .

showed M.M. his penis upon request and M.M. touched it. She

then had the boys taken to the front office by Ms. Cox, a

paraprofessional who generally worked with another teacher .

(There was no evidence provided as to why Ms. Cox was in

Mrs. JamesÓ room at that time, how long she had been there, or

what she saw vis - à - vis the incident.) Mrs. James asked Ms. Cox

to bring back two Referral Forms so she could write up the

incident. Later, Ms. Harb, an instructional coach at the School

who sometimes ac ted as de facto assistant principal, brought the

forms to Mrs. James.

25. Ms. Harb seemed fairly agitated when she arrived with

the forms and tried to ascertain what had actually happened.

She watched Mrs. James complete the forms, even suggesting

Mrs. J ames add the statement, Ða ccording to another studentÑ at

the end of her statement. As it turns out, Ms. Harb had talked

to the two boys involved in the incident while they were in the

office. She also spoke to some other students and obtained

general st atements from them about what had occurred.

26. Due to the nature of the incident, DCF was again

called in to investigate the matter. They purportedly concluded

that there was evidence to support a Ðverified for inadequate

supervisionÑ designation for the investigation. (This was the

same conclusion reached by DCF in the stabbing incident from

2010 which had not resulted in any disciplinary action against

Mrs. James.)

27. The School alleges that a nother sexual touching

incident, probably involving t he same students, happened the

prior week, on February 26, 2013 . However, Mrs. James was not

at the School on that day, having attended a math workshop she

had been going to every Tuesday for some time . There was no

evidence at final hearing as to what act ion was taken against

the substitute teacher relating to that alleged incident.

28. There was also evidence that another sexual incident

(again involving one or more of the same children) may have

occurred a week or so later, i.e., after Mrs. James had been

removed from the classroom. No evidence was presented to

indicate whether the teacher in charge at the time of th at

incident was similarly disciplined.

The School Board Decision

29. The day after the sexual touching incident , Mrs. James

was notifi ed that she was being removed from the classroom

pending further action on the investigation . Three weeks later

she received notice that her employment contract was being

terminated.

30. The stated basis of the School BoardÓs decision was

that Mrs. Jam es failed to properly supervise her students. The

position stated by the School Board (through its human resources

representative) was that the sexual conduct incident was the

primary reason for recommending termination of Mrs. James

employment contract. The egregious nature of that incident,

coupled with a Ðpattern of failure to supervise students

properly," constituted a Ðsevere act of misconduct.Ñ The School

Board, therefore, felt it expedient to skip the progressive

discipline step of suspension with out pay and go directly to the

most serious penalty: Termination of Employment.

The Four - Step Discipline Process

31. The notice of termination Mrs. James was issued is the

Step IV discipline found in a four step process. Step I

generally involves a verba l reprimand. A Step II discipline is

a written reprimand; Step III is suspension without pay. Under

the School Board policies and the collective bargaining

agreement, the steps are progressive and each must be preceded

by the former step.

32. In this c ase, Mrs. JamesÓ Step I discipline was a

verbal reprimand for failing to adequately supervise Ðtwo first

grade students on the playground.Ñ This was the March 13, 2012 ,

incident. The Step II discipline (written reprimand) was issued

concerning the child who improperly boarded a bus on

November 14, 2012.

33. There was no Step III discipline imposed on Mrs. James

prior to issuance of the Step IV termination letter. The only

caveat to the progressive discipline process is that Ðsome more

severe acts of m isconduct may warrant circumventing the

established procedure.Ñ Art. V, Collective Bargaining

Agreement. According to the SchoolÓs human resources director,

this caveat was invoked in Mrs. JamesÓ case.

CONCLUSIONS OF LAW

34. The Division of Administrati ve Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract with the School District of

Duval County. The proceedings are governed by s ections 120.57

and 120.569, Florida Statutes . ( Unless specificall y stated

otherwise herein, all references to Florida Statutes shall be to

the 20 12 codification. )

35. The School Board is the duly constituted governing

body of the Duval County School District. §4, Art. IX, Fla.

Const.; §§ 1001.30 and 1001.33, Fla. Stat . The Superintendent

of Schools has the authority to recommend to the School Board

that an employee be suspended or dismissed from employment.

§ 1012.27(5), Fla. Stat.

36. The School Board has the authority to terminate the

employment of or to suspend teachers without pay and benefits.

See §§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.

37. The burden of proof in this proceeding is on the

School Board to prove, by a preponderance of the evidence, that

just cause exists to terminate the employment co ntract of

Mrs. James. McNeil v. Pinellas C nty Sch . Bd . , 678 So. 2d 476

(Fla. 2d DCA 1996). Preponderance of the evidence is evidence

that more likely than not tends to prove the proposition set

forth by a proponent. Gross v. Lyons , 763 So. 2d 276 (Fla.

2000).

38. In the absence of a rule or written policy defining

just cause, the School Board has discretion to set standards

which subject an employee to discipline. See Dietz v. Lee C nty.

Sch . Bd . , 647 So. 2d 217 (Fla. 2d DCA 1994). Nonetheless, just

c ause for discipline must rationally and logically relate to an

employee's conduct in the performance of the employee's job

duties and be in connection with inefficiency, delinquency, poor

leadership, and lack of role modeling or misconduct. State ex.

rel. Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948);

In Re: Grievance of Towle , 665 A.2d 55 (Vt. 1995).

39. Just cause for purposes of discipline is discussed in

s ection 1012.33, Florida Statutes:

(1)(a) [J] ust cause includes, but is not

limited to, the follo wing instances, as

defined by rule of the State Board of

Education: immorality, misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or being convicted

and found guilty of, or entering a plea of

guilty to, regardless of adju dication of

guilt, any crime involving moral turpitude ;

. . . " .

40. The School Board alleges incompetency based upon

Mrs. JamesÓ alleged Ðpattern of inadequate supervision of

students under her care.Ñ The evidence presented at final

hearing falls woef ully short of proving any such pattern. There

is, for example, no competent, substantial evidence that

Mrs. James failed to supervise the children on the playground or

failed to deliver the extended day student to the proper place.

Further, there is no credible evidence that Mrs. James failed to

adequately supervise her students even during the sexual

incident.

41. The School Board alleges Mrs. James violated Code of

Ethics provisions 6A - 10.080(2) and (3), which state:

(2) The educatorÓs primary prof essional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the impor tance of maintaining

the respect and confidence of oneÓs

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.

42. Again, there is no credible evid ence in the record

that Mrs. James failed to have primary concern for her students

or failed to seek to exercise the best judgment and integrity.

Nor was there evidence that Mrs. James failed to strive to

achieve and sustain the highest degree of ethical c onduct.

43. The School Board also alleges violation by Mrs. James

of one of the Principles of Professional Conduct, to wit:

6A - 10.081(3)(a) Shall make reasonable

effort to protect the student from

conditions harmful to learning and/or to the

studentÓs mental and/or physical health

and/or safety.

44. The sexual incident, in and of itself, does not prove

that Mrs. James failed to make reasonable efforts to protect her

students. That students would behave in that fashion is sad and

disheartening, but it does not, ipso facto, suggest that the

supervising teacher failed to protect her students. Individual

actions by a single student cannot always be prevented, even

when the teacher does his or her best. For example, why were

the teachers in the classroom during the other incidents not

disciplined?

45. The evidence, taken as a whole, demonstrated that

Mrs. James was falsely accused of failing to properly supervise

her students. Although it appears from her annual performance

evaluations that her most di fficult area was classroom

management, she nonetheless operated at a satisfactory level and

demonstrated sufficient abilities.

46. The School Board did not explain how the evidence

presented would establish a violation of the cited Code of

Ethics and Pr inciple of Professional Conduct. Its conclusion

was mere conjecture and based upon fallacious premises.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Duval County School Board, dismissing all charges and rescinding

the termination of the employment contract of Donna James for

the reasons set forth above.

DONE AND ENT ERED this 23rd day of July, 2013, in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 23rd day of July , 201 3 .

ENDNOTES

1 Mrs. James did not receive any discipline for this incident,

so it is unclear why it was listed as a Ðpast disciplinary

actionÑ in the termination letter.

2 Mrs. Jame s had never had a written reprimand before, so she

was not fully aware of her rights under the collective

bargaining agreement.

3 Mr. James was Duval County Teacher of the Year for the 2012 -

2013 school year .

COPIES FURNISHED :

Harold Siebert Lippes, Es quire

Lippes & Bryan, P.A.

700 Ponte Vedra Lakes Boulevard

Ponte Vedra Beach, Florida 32082

Craig D. Feiser, Esquire

David J. DÓAgata, Esquire

Duval County School Board

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Dr. Tony Bennett

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Nikolai P. Vitti, Ed.D.

Superintendent

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 32207 - 8182

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.