00-003919 Duval County School Board vs. Sydria N. Carter Status: Closed Recommended Order on Tuesday, May 15, 2001.

Summary: Teacher found to have battered pre-kindergartner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-3919

)

SYDRIA N. CARTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on

March 5, 2001, at the Jacksonville City Hall, Jacksonville,

Florida, and conducted by Harry L. Hooper, Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Ernst D. Mueller, Esquire

Office of the General Counsel

City of Jacksonville

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

Should Respondent be discharged or otherwise disciplined

for violations of the Duval County Teacher Tenure Act, Chapter

21197, Laws of Florida (11941), as amended.

PRELIMINARY STATEMENT

Petitioner, Duval County School Board, filed an amended

notice of termination against its employee, Respondent Sydria N.

Carter, on September 11, 2000. Subsequent to Ms. Carter's

demand for a hearing, the case was transmitted to the Division

on September 21, 2000.

Petitioner presented the testimony of six witnesses at the

hearing and presented the testimony of Noreen Tuder by video

deposition. Petitioner's Exhibits 1-9 were admitted into

evidence.

Respondent called Leroy Starling as a witness and testified

on her own behalf. Respondent's Exhibits 1-4 were admitted into

evidence.

A transcript was filed with the Division of Administrative

Hearings on April 9, 2001, and both parties timely submitted

Proposed Recommended Orders which were considered by the

Administrative Law Judge in the preparation of the Recommended

Order.

FINDINGS OF FACT

1. Respondent Sydria Carter holds Florida Educator's

Certificate number 403413, valid through June 30, 2002, which

authorizes her to teach early childhood education and elementary

education. She holds a bachelor's degree and a master's degree

from Jacksonville University.

2. Ms. Carter was employed by the Duval County School

Board as a tenured teacher during all times pertinent. She has

been a teacher for about 24 years. Since the 1997-98 school

year, she has taught pre-kindergarten at Wesconnett Elementary

School. Her pre-kindergarten class for the 2000-01 school year

was populated by 20 students.

3. Michael Fleck (Michael), on August 15, 2000, was a

four-year-old-boy. August 15, 2000, was Michael's first day in

school. He was assigned to Ms. Carter's class at Wesconnett.

4. Michael is the son of Teresa Fleck. On August 15, 2000,

she and Michael went together to orientation in the school

cafeteria. When orientation was completed, Michael and the

other children in his class departed the cafeteria with

Ms. Carter and Ms. Fleck.

5. At the end of the school day when Ms. Fleck retrieved

Michael, she believed that he was stressed, but after

conversations with him, she concluded that he seemed fine.

6. The second day of school, August 16, 2000, Ms. Fleck

again took Michael to the Wesconnett cafeteria. Michael

expressed a desire to return home, but Ms. Fleck left him there

and he proceeded to his class with Ms. Carter.

7. Ms. Carter's class is conducted in a portable

classroom. Entrance to the portable classroom is obtained via a

ramp. During the lunch period of the second day of school,

around 12:30 p.m., Michael was present at the midpoint of the

ramp and screaming, "I want my Mommy." He was attempting to

flee.

8. Ms. Carter was struggling with Michael in an effort to

prevent him from running away. The struggle continued for about

one minute. She managed at one point to get her arms under his

arms in a manner that Ms. Carter described as the "Heimlich

Maneuver," and dragged him toward the door of the portable

classroom. As she approached the door she slapped Michael on

the back of the head.

9. This was observed by Nickie Gunnoe, a first grade

teacher with eight years of experience. Ms. Gunnoe had a clear

view of the events which occurred on the ramp leading to the

door of Ms. Carter's classroom.

10. Ms. Gunnoe believed that excessive force was used by

Ms. Carter with regard to Michael. Because of this she reported

the incident to the principal of Wesconnett, Michael Akers.

This report was made on the following day, August 17, 2000.

11. When Ms. Fleck arrived at Wesconnett on August 16,

2000, to pick up Michael, she observed the children exit the

classroom with Ms. Carter and saw that Michael was in the rear.

He was crying. Michael said he wanted to take his candy home.

He continued crying as Ms. Fleck escorted him toward her

vehicle. Michael said that Ms. Carter had been mad at him three

times.

12. En route to her vehicle Ms. Fleck approached

Ms. Carter and a brief discussion ensued with regard to Michael.

Ms. Carter told Ms. Fleck that Michael was going to have to

"adjust."

13. When Ms. Fleck arrived at her vehicle she attempted to

secure Michael into the seat. He continued to cry hysterically.

Ms. Fleck discovered red marks under his arm and then proceeded

with Michael directly to the Principal's office.

14. At the Principal's office Ms. Fleck had a discussion

with Principal Akers. Law enforcement officers were called and

joined in the discussion. Ms. Carter also entered the office.

15. Photographs of Michael's underarms were taken by

police officers. The photographs depict a bright red mark under

the left armpit. Ms. Fleck observed indentations consistent

with fingernail impressions in the reddened area. These

indentations could not be detected in the photographs. However,

the angle from which the photographs were taken were not

conducive to depicting the type of indentations which were

described.

16. At the principal's office, when Ms. Carter appeared on

the scene, Michael asserted that she was the person who had

perpetrated the injuries which resulted in his acquisition of

the red marks. Ms. Carter, at that time, as well as at the time

of the hearing, had long fingernails.

17. The actions of Ms. Carter in forcefully grabbing

Michael were entirely consistent with her duty to protect the

child from running away from school and exposing himself to

serious harm from traffic or other hazards. To the extent

Michael suffered abrasions, they were the natural and probable

consequences of his escape attempt. The slap administered to

Michael's head, however, was in excess of the action necessary

to protect Michael, and was a battery.

18. The next day, August 18, 2001, Michael told his mother

that Ms. Carter had grabbed his hair and, "throwed him on the

nappy mat," because he didn't have a blanket. As a result of

this statement Ms. Fleck called the Principal which precipitated

the arrival of a police evidence technician at her house.

19. Photographs were taken of Michael's head by the police

evidence technician. The photographs were entirely consistent

with the thesis that his scalp had been pierced by long

fingernails when his head had been grasped. The wounds appeared

in the photograph to be recently incurred.

20. Ms. Fleck had not observed any marks on Michael's body

prior to August 16, 2001. It is apparent that the marks

resulted from Ms. Carter's forcefully, and inexcusably, grabbing

Michael's head.

21. Subsequent to the events of August 16, 2000, Michael

did not attend school because he was traumatized by his

experience with his first teacher, Ms. Carter.

22. During the 1996-97 school year, and again the

following year, the Principal of Wesconnett, Mr. Akers,

counseled Ms. Carter concerning the excessive use of force with

children. In 1996 he specifically counseled her to avoid

putting her hands on a child except in an emergency situation,

when the child was in danger, or when the child was endangering

others. Ms. Carter's personnel record reflects a satisfactory

performance while employed at Wesconnett.

23. Ms. Carter's explanations of the events giving rise to

Michael's injuries, to a substantial extent, did not comport

with the other evidence adduced at the hearing.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause, pursuant to Sections 120.569(1) and 120.57(1), Florida

Statutes, and Article 1, Section 5, of the Duval County Teacher

Tenure Act, Laws of Florida, Chapter 21197 (11941), as amended.

25. The burden of proof in this proceeding is on the Duval

County School Board. The Board is required to prove the

allegations against Respondent by a preponderance of the

evidence. See Allen v. School Board of Dade of County , 571

So. 2d 568 (Fla. 3d DCA 1990) and Dileo v. School Board of Dade

County , 569 So. 2d 883 (Fla. 3d DCA 1990).

26. Article 1, Section 4 of the Duval County Teacher

Tenure Act(Act), provides "causes for the discharge or the

demotion of a teacher." Section 4(b) of the Act provides the

following causes for discharge or demotion:

(b) Persistent violation of or willful

refusal to obey the laws of the State

of Florida or regulations adopted by

authority of law, relating to the

public schools or the public school

system.

27. The specific rule which Ms. Carter is alleged to have

willfully refused to obey, in violation of Article 1, Section

4(b) of the Act, is Rule 6B-1.006(3)(a), (e), and (f), Florida

Administrative Code, which provides that teachers:

(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.

(e) Shall not intent ionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student’s legal rights.

28. Ms. Carter was also charged with violating

Rule 6B-1.001(3), Florida Administrative Code, which states that

a teacher must be:

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.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a final order be entered:

1. Finding that Ms. Carter violated Article 1, Section 4

of the Duval County Teacher Tenure Act by refusing to obey the

laws of the State of Florida or regulations adopted by authority

of law, specifically, Rule 6B-1.006(3)(f) , Florida Administrative

Code, by intentionally denying a student's right to be free from

being battered by his teacher.

2. Suspending Ms. Carter without pay for a period of one

school year beginning on August 15, 2000, in lieu of discharge,

and requiring as a condition of reinstatement, the completion of

such anger management training as the Duval County Public

Schools may deem appropriate, prior to the beginning of the

2001-02 school year.

DONE AND ENTERED this 15th day of May, 2001, in Tallahassee,

Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of May, 2001.

COPIES FURNISHED :

Ernst D. Mueller, Esquire

Office of the General Counsel

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

John C. Freyer, Jr., Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207-2115

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

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.