02-000933 Duval County School Board vs. Sakina A. Jones Status: Closed Recommended Order on Thursday, November 14, 2002.

Summary: Petitioner School Board did not prove that classroom management and disciplinary techniques used by Respondent amounted to violations of above rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0933

)

SAKINA A. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, t his cause came on for formal hearing

on June 19, 2002 and July 23, 2002, in Jacksonville, Florida,

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings. The appearances

were as follows:

APPEARANCES

For Petitioner: Ernst D. Mueller, Esquire

City of Jacksonville

Office of the General Counsel

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 to be resolved in this proceeding concerns

whether the Petitioner/Agency has established by preponderant

evidence that there was just cause to dismiss Sakina A. Jones,

the Respondent, for alleged misconduct in relation to her

teaching of students in alleged violation of Rules 6B -

1.006(3)(a), and 6B - 1.006(3)(e), Florida Administrative Code.

PRELIMINARY STATEMENT

On February 13, 2002, the Re spondent was issued a Notice of

Termination of Employment Contract and immediate suspension

without pay by the Duval County School Board (Petitioner;

"District"). She was charged with violating Rules 6B -

1.006(3)(a), and 6B - 1.006(3)(e), Florida Administrat ive Code, by

allegedly failing to make reasonable efforts to protect students

from conditions harmful to learning and to their mental or

physical health or safety as well as intentionally exposing

students to unnecessary embarrassment or disparagement. Th ese

charges were specifically involved in some seventeen specific

descriptions of conduct which allegedly violated these two

Rules, as set forth in the charging document or letter Notice of

Termination, all of which are alleged to have occurred during

the 2001 - 2002 school year which commenced August 7, 2001. The

relevant time period ran through approximately November 19,

2002.

The Respondent requested a formal proceeding and hearing

concerning these charges. The cause was ultimately transmitted

to the D ivision of Administrative Hearings and the undersigned

Administrative Law Judge for adjudication.

The cause came on for hearing as noticed. The hearing was

conducted on the above dates. The Petitioner school district

called ten witnesses in its case i n chief and presented fourteen

exhibits, all of which were admitted into evidence. The

Respondent, Sakina Jones, presented the testimony of three

witnesses. In addition to her own testimony she presented the

testimony of Samuel Corlew and Felicia Johnson . The Respondent

submitted no exhibits into evidence. Upon concluding the

proceeding the parties obtained a Transcript thereof and timely

filed Proposed Recommended Orders, after stipulating to an

extension of time. The Proposed Recommended Orders have been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the Duval County Florida School

District or "School Board" charged with regulating the practice

standards for teachers and the manner of practice of teachers

who are employed by it in the Duval County School District

system. The Respondent is licensed to teach in Florida, holding

Florida Educator Certificate No. 831562, effective from July 1,

2000 through June 30, 2002. The Respondent has a Bachelor's

Degree in Psychology received on December 11, 1998. She has

worked as a substitute teacher for the Duval County School

District between approximately September 4, 1998 and August 9,

2000, after which time she became a full - time elementary teacher

at Annie R. Mo rgan Elementary School.

2. The Respondent has a Bachelor's Degree in Psychology.

Her training and experience in the field of education beyond

college, at which she had no academic training as an educator,

at the point she commenced her second year of t eaching at

Annie R. Morgan Elementary School, in August 2002, included the

following:

(a) substitute teaching experience at

elementary schools.

(b) teaching ESE students at DuPont Middle

School as a substitute teacher.

(c) participation in the Teache r Induction

Program during the 2000 - 2001 school year

while full time teaching at Annie R. Morgan

Elementary School.

(d) having a designated mentor (Mrs.

Shipley) from whom to seek guidance.

(e) completion of a college level

introduction to education co urse while

teaching full time during the 2000 - 2001

school year.

(f) completion of a course in "Teaching

Diverse Populations" in the summer of 2001.

(g) receiving a book called "Positive

Discipline."

(h) attending a faculty meeting on

classroom discip line which focused on steps

that could be taken in the classroom before

sending a child to the principal's office.

The Respondent had no training in the specifics of teaching and

disciplining either ESE students or the educable mentally

handicapped (EMH) students which she was teaching at times

pertinent to this case.

3. The Teachers' Induction Program in which Ms. Jones

participated during the 2000 - 2001 school year is a program for

new teachers in the District which includes assessments

involving at lea st two classroom visits a week. Six "domains"

are covered in the program including classroom management,

instructional planning and testing, some of which are presented

in a workshop format. The program requires a year to complete,

at the end of which th e principal must assess whether a new

teacher has passed or failed in her participation in the

program.

4. For the 2000 - 2001 school year Ms. Jones accepted a

position as a full - time, third grade teacher at the Annie R.

Morgan Elementary School. The princ ipal that year was Delores

Milton. After about five weeks, Ms. Jones was shifted to an ESE

class, an area in which she had no training. Later that year

she was assigned to an EMH class which she was even less

qualified to handle in terms of having any sp ecific training in

teaching and disciplining EMH students. Ms. Jones, indeed, had

serious reservations about taking the EMH job because of her

lack of training or experience with EMH children and she related

this to her principal and they had a discussion about it.

Ultimately, the principal assured her that she could go to

workshops and in other ways get additional training and so

Ms. Jones accepted the position because it would guarantee her a

position so that she would not be on the "surplus list" (bei ng

first subject to lay - offs).

5. Carolyn F. Davis was assigned as Principal at Annie R.

Morgan Elementary School on July 1, 2001, replacing Ms. Milton.

Ms. Jones' EMH teaching assignment continued into the new 2001 -

2002 school year. Her class include d twelve boys and two girls

ranging in advancement from grade one to grade three. A

teacher's assistant was assigned to her on a full time basis.

The teacher's assistant, at the beginning of the year, was

Tiffany Bullard. Ms. Bullard had been working wi th Ms. Jones as

a teaching assistant the prior school year from approximately

November 2000 through the end of the school year in May 2001.

That had been her first experience as a teacher's assistant.

Due to budgetary cuts, Ms. Bullard was "surplused" (l aid - off) on

September 4, 2001. Several months later she was re - hired at a

different school.

6. A second teacher's assistant worked with Ms. Jones in

her classroom after Ms. Bullard departed. This was Arnette

Felton. Ms. Felton had a year's prior exper ience as a teacher's

assistant at an elementary school as well as a prior year of

such experience at Annie R. Morgan Elementary School. She

worked with Ms. Jones from September 5, through October 16,

2001. She asked to be relieved when she claimed that M s. Jones

threw a bottle of "white - out" at a student who ducked, such that

the bottle hit Ms. Felton. The totality of the credible

testimony reveals that this incident did not happen at, least in

that fashion, as Ms. Jones never intentionally threw a bottl e of

white - out at anyone. In reality, there appears to have been

some personal friction between Ms. Felton and Ms. Jones which

helped to cause Ms. Felton's departure.

7. Ms. Jones' third teacher's assistant was Brenda

Medlock. Ms. Medlock has approximat ely one year and a half of

college and had been serving as a teacher's assistant for ten

years in the Duval County School system. She remained with

Ms. Jones until Ms. Jones was removed from her teaching duties

on or about November 19, 2001. Ms. Medlock had no prior

experience with EMH students although she had worked with ESE

students and had some training of unknown amount and duration in

behavior management while working as a teacher's assistant at a

prior school.

8. The EMH students in Ms. Jones cla ss were all students

with below average I.Q. who function at grade levels

significantly below the norm for their age. Their I.Q. range

was from 49 to 69.

9. Greater patience is required in disciplining and

instructing EMH students. Relevant federal law protects them

from being disciplined for reasons of their disability. In all

instances with respect to such students, a determination has to

be made concerning whether the conduct for which discipline is

about to be meted out is a manifestation of the dis ability, and

if so, there can be no discipline. Some of the students had

limited communication skills and difficulties with memory and

Ms. Jones was aware of this information concerning her students

upon getting to know them.

10. Students with a low I. Q., such as Ms. Jones' students,

should not appropriately be made to write sentences repetitively

as a disciplinary measure. This is because they would typically

not understand and cannot practicably execute the requirement.

Upon learning that Ms. Jones had made students write sentences

repetitively as a disciplinary measure, Principal Carolyn Davis

instructed her not to use this form of discipline at a

conference the two had on October 23, 2001.

11. Student Raymond Houston testified. He was placed in

the bathroom, which was in the classroom, a number of times for

a few minutes as "time out" when he misbehaved. Although the

light in the bathroom may have been turned off when this

occurred, no one prevented any student, being placed in the

bathroom as "time out," from turning the light on. Raymond

Houston (R.H.) also stated that he and several other students

had to do the "duck walk" or "jumping jacks" as discipline for

misbehavior on a number of occasions. He was also required to

write sentences such as "I will be good" or "I will pay

attention" when he had misbehaved.

12. The teacher's assistant, Ms. Bullard, confirmed that

the Respondent had placed children into the classroom bathroom

for "time outs." The totality of the credible testimony

revea ls, however, that these sessions lasted only from three to

five minutes and no student had been placed in the bathroom as

long as an hour or a half - day or anything of that nature.

13. Ms. Jones also made certain male students do pushups

for disciplinar y reasons, such as R.H. and T.S. In this

connection, some of the calisthenics her students performed were

done as part of a fitness program she instilled in her daily

lesson plan, including the exercise regimen known as "Tae Bo."

Most occasions, when stu dents did exercises such as pushups,

were not for disciplinary reasons.

14. Student R.H. also was required by the Respondent to

wash at the lavatory and put on a clean shirt, which she had in

the classroom to give him. This was because he had not bathed

in several days and had a bad odor. While some other students

may have observed this, it was done for hygiene reasons and was

not done in order to berate the student or expose him to

unnecessary embarrassment.

15. During the 2001 - 2002 school year on on e occasion,

student "Shaquille's" book bag was taken from him by the

Respondent and she put it in a trashcan. This was not a

trashcan used for refuse or garbage, however, it was simply a

trashcan type receptacle where she would keep students' book

bags wh en they did not need them or when they were not supposed

to be in possession of them.

16. Ms. Jones also instituted a system which permitted the

children to go to the bathroom three times per day. This system

was implemented by having the students use tokens, three apiece,

which they could use when they needed to go to the bathroom.

This was done to help instill order in the classroom. However,

those students who were unable, for various reasons, to comply

with this bathroom schedule were allowed to g o on an as - needed

basis. In any event, the three - bathroom - visits policy was ended

by the Respondent one month into that school year.

17. All students at the Annie R. Morgan Elementary School

receive a free breakfast every morning, at the beginning of the

school day. Breakfast is provided in the classrooms to the

students at their desks. Ms. Jones had a rigid five - minute time

limit, enforced by a timer, during which the children were to

eat their breakfast. She would have the students start in

unison (t hose that were present) and when the timer rang after

five minutes, she would make the children discard any portion of

breakfast not eaten. Ms. Jones was not aware that there was any

prohibition against the five - minute time limit for eating

breakfast and for discarding unused food. After being

instructed by her principal, at their meeting of October 23,

2001, that the students should be allowed fifteen minutes for

breakfast, the Respondent complied. The only exception to this,

established in the record, was when student James Brown arrived

at school late and missed breakfast. This, however, was

involved with an agreement the Respondent had with James Brown's

mother, who had informed Ms. Jones that if he were late she

could assume that he had already had breakfast, because his

mother would ensure that he had already breakfast. The denial

of his breakfast, on the day in question, was not due to any

cruelty or other violation of the rules referenced herein, but

rather because she knew that his mother would have already given

him breakfast on that day when he was late.

18. Although the Respondent was accused by witness Arnette

Felton of throwing objects in the classroom at students,

including pencils, chalk, an eraser and a white - out bottle, the

preponderan t, credible testimony indicates otherwise. Although

the Respondent acknowledged tossing snacks, candy, chalk or

pencils to students for them to use during the course of their

classroom activities, she never purposely and forcefully threw

any object at stu dents in anger or as a misguided disciplinary

measure or anything of the sort. Further, although as a

classroom management technique the Respondent placed students in

time - out in the restroom for a few minutes when she felt it

necessary to restore order a nd decorum in the classroom, she

never instructed her assistant to forcibly hold the bathroom

door shut to "lock - in" a student for disciplinary reasons.

19. Ms. Felton maintained that she observed Kenny Brown

come to Ms. Jones' desk, when told not to, s o that Ms. Jones, in

anger, threw his book bag in the trash, took his folder out of

the book bag and threw it in the sink, getting it wet.

20. The most credible testimony does not support that

assertion. It is determined this incident did not occur in t his

fashion. Rather, Ms. Jones, at most, took student K.B.'s book

bag from him and placed it in the receptacle for holding book

bags, which happened to be in the form of a trashcan, but which

was not used as a trash or garbage can, as found in the other

i nstance referenced above.

21. It is true that Ms. Jones criticized Ms. Felton when

she was unable to change a CD disc, calling her a "dummy." This

was not done in a way that the other persons or students present

in the classroom could hear, however. I t is also true that

Ms. Jones and Mr. Felton got into a verbal altercation in the

classroom for which the Respondent, Ms. Jones, received a

reprimand from the principal, Ms. Davis, for engaging in an

argument in front of the students.

22. Teacher's assis tant Brenda Medlock succeeded

Ms. Felton as the teaching assistant for the Respondent. She

observed James Brown arrive at school, missing breakfast, on

October 29, 2001, which has been discussed above. Withholding

breakfast may have been contrary to the principal's instruction,

but in this regard it was done for a justifiable reason because,

due to the understanding with the student's mother, Ms. Jones

knew that he had already had breakfast when he got to school

that day when he arrived at school late. Ms. Medlock also

observed, on October 29, 2001, that, after the students were

disruptive, the Respondent put a sentence on the board, "I will

pay attention," and required all of the students to write that

sentence repetitively for approximately fifteen to twenty - five

minutes. Some of the students had the ability to write the

sentence only a few times or only once. This episode was in

violation of instructions given by the principal at the meeting

she had with the Respondent on October 23, 2001.

23. The principal had a conference with Ms. Jones on

October 23, 2001, in which Ms. Jones admitted that she had

placed students in the bathroom for time - out for disciplinary

purposes and that she had given children only five minutes in

which to eat breakfast. Sh e was informed that fifteen minutes

were allowed for eating breakfast and she was directed not to

use the bathroom for time - out disciplinary purposes anymore.

She refrained from doing so thereafter. She was also directed

not to withhold food from a child which she complied with

thereafter, with the exception of the James Brown breakfast

episode, which was adequately explained by the Respondent to not

involve any disciplinary or disparagement reason for its

occurrence. Ms. Jones did, as found above, viola te the

instruction from Ms. Davis about not requiring students to write

sentences repetitively, as a disciplinary measure, by the

incident she caused on October 29, 2001, found above.

24. In summary, it is significant that the only sources of

factual info rmation are the testimony of the teacher's

assistants who were assigned to the Respondent during the 2001 -

2002 school year. An analysis of their testimony shows that

none of them had any affection for the Respondent and it appears

from examination of thei r testimony, and the Respondent's

testimony, that each had specific reasons for harboring

resentment or animosity toward the Respondent. Their attitudes

towards the Respondent appeared less than friendly, so that

their testimony, taken together, with the instances of

admissions by the Respondent show that some of the situations

described happened, but did not happen in the heinous way

described in the testimony of the teacher's assistants

Ms. Felton and Ms. Medlock.

25. Although some of these situation s, which occurred as

part of the Respondent's attempt to properly deal with her

classroom environment, may have justifiably resulted in

criticism of the Respondent, the statement of the Petitioner's

own witnesses show that there was no formal standard and no

formal definition of acceptable versus unacceptable conduct

imparted to the Respondent before she embarked on her duties

with this EMH class. The Petitioner's representatives

acknowledge that there was no advance training or instruction

given to the Re spondent. The Respondent was required to seek

assistance and additional training largely on her own initiative

with little support from the school administration.

26. Consequently, as the Respondent attempted to develop

techniques for the management of her classroom and for the

instruction of her students, numerous events occurred that were

later deemed inappropriate, although she had not been instructed

in advance that they were inappropriate. Some of these

occurrences or events were due to poor judgm ent on her part as

well, and the resentment occasioned in her teacher's assistants

or "para - professionals" was probably partly the result of her

own failure to adequately control her temper on occasions.

27. However, the fact remains that as soon as the

Respondent was notified of any perceived inappropriate behavior,

or classroom or student management techniques, she modified her

conduct or techniques accordingly, so as to comply with those

instructions. The only time she continued behavior that had

been deemed unacceptable by the principal concerned the subject

of the breakfast of one student, for whom she had a specific

instruction from the student's parent that the student did not

need to have breakfast when he arrived late, because he would

already ha ve had breakfast. The other occasion of continued

behavior that was unacceptable was the single, October 29, 2001,

requirement of students to write repetitive sentences, which was

directly contrary to the instructions she received from the

principal on Oc tober 23, 2001.

28. Since the only complaints were made to the

administration by the paraprofessionals and the investigation

therefore concentrated on those individual's statements, there

is no substantial, credible evidence that the Respondent's

action s rose to the level of intentional embarrassment or

disparagement of students or otherwise constituted a breach of

the Code of Ethics for educators, as embodied in the rules on

which the Respondent's termination was based. Although the

Respondent's action s were mis - directed in several instances and

constituted exhibitions of poor judgment on some occasions, they

have not risen to the level of a violation of the ethical

requirements imposed on teachers.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes

(2001).

30. The Petitioner/Agency is charged with proof of its

allegations by a preponderance of the evidence in orde r to

terminate the employment status of the Respondent. See Allen v.

School Board of Dade County , 571 So. 2d 568 (Fla. 3rd DCA 1990);

and Dileo v. School Board of Dade County , 569 SO. 2d 883 (Fla.

3rd DCA 1990).

31. Rule 6B - 1.006, Florida Administrativ e Code,

establishes the "Principles of Professional Conduct for the

Education Profession of Florida." Rule 6B - 1.006(3)(a)(e),

Florida Administrative Code, establishes the following relevant

obligations which teachers owe to students:

(a) Shall make reaso nable effort to protect

the student from conditions harmful to

learning and/or to the students mental

and/or physical health and/or safety

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement. (emphasis suppl ied).

32. Concerning paragraph (a) of the Rule quoted above it

is determined that, based upon the most credible testimony and

evidence, that which has preponderant weight, that the

Respondent did not violate this Rule. She generally made

reasonable eff orts to protect children from conditions harmful

to learning or their mental or physical health and safety. In

several instances, she used classroom management or student

management techniques which were not the most appropriate and

which, to some extent, evidenced a misguided approach or poor

judgment. However, her efforts to manage her class were for a

beneficial purpose in trying to instill sufficient discipline in

her students so that they could learn. The lapses of proper

judgment in managing her cl ass and some students, on isolated

occasions, are not sufficiently reprehensible to rise to the

level of a violation of the ethical standards or principles of

professional conduct represented in this rule.

33. Likewise, there is not preponderant, credib le evidence

to show that she intentionally exposed any students to

unnecessary embarrassment or disparagement. Her techniques or

methods of student management or classroom management might have

been done differently in some instances which in one or two

i nstances might have been a more clear effort to avoid

embarrassment of a student, but she never intentionally exposed

students to embarrassment or disparagement. She consistently

corrected her management techniques or method of classroom

operation in thos e particulars to which she was instructed. The

instances of October 29, 2001, concerning repetitive writing of

sentences by students after being instructed not to do so by her

principal certainly were a violation of the policy laid down by

that principal and would warrant some disciplinary measure;

however they do not constitute violations of the Rules under

which the Board is proceeding, but rather school policy. Even

in those instances, and in the others which the School Board had

deemed constituted ina ppropriate teaching or classroom or

student management techniques, her conduct does not engender

good cause for her termination from employment. Rather, some

lesser disciplinary measure is warranted, but more importantly,

instruction in the proper, more a cceptable techniques for such

instructional efforts should have been given. Much of the

conduct or techniques used by the Respondent, with which the

School Board now differs, or to which it objects, arose to a

great degree from the fact that she never rec eived proper

training for the position she was placed in during the course of

the school year through a change in classes involving teaching

EMH students. Further, she cautioned the principal that she did

not feel that she was qualified to handle such a c lass and was

persuaded by the principal that she could do so if she sought

the opportunity to receive training through workshops and by

other means. She did make the effort to receive such additional

training, but was largely left to her own devices in ho w to do

so, with little support from her school administration.

Consequently, it must be concluded that while her techniques

were not always the most appropriate, they did not rise to the

level of ethical violations and specifically violations of the

Rule s under which the School Board is proceeding in this case.

Consequently, while the School Board may choose not to enter

into a new employment contract with the Respondent, she should

be made whole for the remainder of the school year in which she

would ha ve been employed after her termination date because just

cause has not been established, by preponderant evidence,

justifying her termination.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, th e candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the School

Board of Duval County compensating the Respondent for the salary

and benefits to which she is entitled from the date of her

termination of employment (suspension without pay) forward to

the end of the 2001 - 2002 School Year.

DONE AND ENTERED this 14th day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

w ww.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 14th day of November, 2002.

COPIES FURNISHED :

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Ernst D. Mueller, Esquire

City of Jacksonville

Office of the General Counsel

117 West Duval Street

Suite 480

Jacksonville, Florida 32202

John C. Fryer, Jr., Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207 - 8182

Hono rable Charlie Crist

Commissioner 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 O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.