02-003134PL Charlie Crist, As Commissioner Of Education vs. Elizabeth H. Weisman Status: Closed Recommended Order on Monday, December 23, 2002.

Summary: Evidence did not demonstrate saying class was acting like a "bunch of jackasses" when the class was acting so and accidentally pushing/brushing student`s buttocks when playfully shooing him out of the classroom not violations of statute or rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER )

OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3134PL

)

ELIZABETH H. WEISMAN, )

)

Respondent. )

)

RECOMMENDE D ORDER

Upon due notice, this cause came on for formal hearing on

September 24, 2002, in Tallahassee, Florida, before Diane

Cleavinger, a duly - assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mat thew K. Foster, Esquire

Edward T. Bauer, Esquire

Brooks, LeBoef, Bennett & Foster, P.A.

863 East Park Avenue

Tallahassee, Florida 32301

For Respondent: John O. Williams, Esquire

Williams & Holz, P.A.

211 East Virginia Street

The Cambridge Centre

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against

Respondent's educators certificate.

PRELIMINARY STATEMENT

The Commissioner of Education filed an Administrative

Complaint charging Respond ent with having violated Section

231.2615(1)(c), (f), and (i), Florida Statutes, and Rule

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

Specifically, the Administrative Complaint alleges that on

April 6, 2001, while employed as a teacher at the Second Chance

School in Leon County, Florida, Respondent inappropriately

disciplined student J.M. by kicking him in the buttocks and

calling various students at various times "rat bastard,"

"bitch," "bi - sexual," "jackasses," and "lying scumbag."

R espondent disputed the above allegations and requested a

formal hearing pursuant to Section 120.57(1), Florida Statutes,

to contest the proposed agency action. The matter was referred

to the Division of Administrative Hearings.

In the Prehearing Stipulat ion filed September 19, 2002, the

parties agreed that the issues of fact that remained to be

litigated were whether Respondent pushed student J.M. in the

buttocks with her foot in an attempt to produce his exit from

the classroom, and whether Respondent ca lled student W.F. a "rat

bastard" and referred to her students in the class as

"jackasses." The parties further agreed that the facts alleged

did not support a finding that Respondent committed an act of

moral turpitude contrary to Section 231.2615(1)(c), Florida

Statutes, or that Respondent discriminated against a student on

the basis of race, color, religion, sex, age, or other protected

classification in violation of Rule 6B - 1.006(3)(g), Florida

Administrative Code. Accordingly, the issues of law that

remained to be litigated were whether Respondent violated

Section 231.2615(1)(f) and (i), Florida Statutes, and Rule

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

allegations are dismissed.

At the hearing, Petitioner presented the t estimony of three

witnesses. Respondent testified on her own behalf, and

presented the testimony of one witness, and offered one exhibit

into evidence.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Order s on October 17, 2002, an d October 18, 2002,

respectively.

FINDINGS OF FACT

1. In the 2000 - 2001 school year, Respondent, Elizabeth

Weisman, held a Florida Teaching Certificate No. 475382. The

certificate covered the areas of elementary education and

mathematics and was valid t hrough June 30, 2005. When the

events herein occurred, Respondent was employed as a dropout

prevention teacher at Second Chance School in Tallahassee,

Florida. The school is part of the Leon County School District.

There is no evidence that Respondent h as been disciplined by

Petitioner on any prior occasion since she began teaching in

Leon County in October 1980.

2. Second Chance School is a school for children with

disciplinary problems and who have a history of being extremely

disruptive and cannot be handled in a regular school setting.

3. Ms. Weisman was in a difficult position when she

started teaching at Second Chance School. She was assigned to

teach outside her field and was replacing a teacher who was not

as strict a disciplinarian or as de manding of performance as

Ms. Weisman. In general, her students did not react well to the

increase in discipline and expectations of performance and

likely caused increased referrals to the principal's office.

Both Ms. Weisman and the students had to ad just to each other

4. On April 6, 2001, J.M. entered Respondent's classroom.

Respondent asked him to leave her classroom. He was not

supposed to be in the classroom because he had been referred to

the principal's office the day before for discipline. J.M.

attempted to comply with Respondent's request, but a number of

students entering the room blocked him from leaving. Respondent

made a shooing motion with her hands to J.M. and raised her foot

to indicate for J.M. to leave the room. The gestures were done

in a playful manner and were intended as such. While

Ms. Weisman's foot was raised, she accidentally brushed or

pushed J.M.'s buttocks with her foot. J.M. could feel the push.

However, it did not cause him to lose his balance or cause any

harm to him whatsoever. The evidence did not demonstrate that

J.M. was unduly embarrassed or otherwise affected academically

by the incident. Indeed, the incident gave J.M. a good story to

tell to others at school. The evidence did not demonstrate that

the push was inappropriate or violated any state rules or

statutes governing teachers. There was no evidence that

Ms. Weisman was less effective as a teacher due to this

incident.

5. W.F. testified that on two occasions he witnessed

Respondent stat e to the class that they were "acting like

jackasses." J.F.'s testimony was vague and inconsistent.

Specifically, W.F. testified that on the first occasion,

Respondent stated to the class that they were "acting like

jackasses" after class members refused to return to their seats

during an altercation between two students occurring outside the

classroom. The classroom students were generally cheering the

fight on. With respect to the second instance, W.F. testified

that Respondent made the statement afte r W.F. and several of his

classmates tricked Respondent into placing her hand on a pencil

sharpener covered with glue. W.F. conceded the description was

an accurate description of the behavior of the students at the

time. At no time did Respondent call a n individual student an

improper name. Although W.F. testified he was embarrassed by

Ms. Weisman, W.F.'s testimony is not persuasive on this point.

Nor is it realistic to conclude any significant embarrassment

given the bold nature of W.F.'s behavior whi ch preceded these

comments.

6. W.F. also testified on direct examination that he

witnessed Respondent call the class "a bunch of rat bastards."

Again W.F.'s testimony was vague and inconsistent. During

cross - examination, however, W.F. testified that the remark was

made to a specific female student during a verbal altercation

between the student and Respondent. However, Respondent denies

ever using or knowing the term "rat bastard." Given

Respondent's demeanor, the inconsistency, and the unreliabilit y

of the other evidence, Respondent's testimony is the more

credible.

7. There was no credible evidence that any student was

ever affected in any way by these incidences. No evidence of

any change in grades or reduced test scores was introduced at

the h earing. An increase in disciplinary referrals was noted

by the principal, but that increase was not shown to be tied to

these incidences. The increase, if any, was more likely to be

due to the fact that she was a new teacher, teaching out of

field, who was more strict with her students and demanded more

from them. Moreover, statistics supporting this perceived

increase in disciplinary referrals was not offered at the

hearing. Indeed, later testing showed Ms. Weisman's students

improved their test score s. However, the testing was for a

different year and class. It was not clear that the same

students were being tested. The improvement does show that

Ms. Weisman is an effective teacher.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearing s has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

9. Petitioner bears the burden of proving the allegations

in the Administrative Complaint by clear and convincing

evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

10. Count 2 of the Administrative Complaint alleges that,

by virtue of the misconduct described above, Respondent's

effectiveness as an employee of the School Board was seriously

reduced in violation of Section 231. 2615(1)(f), Florida

Statutes. Based on the evidence presented, there is

insufficient evidence to conclude that Respondent's

effectiveness as a teacher was seriously impaired. Therefore,

Count 2 of the Administrative Complaint should be dismissed.

11. Co unt 4 of the Administrative Complaint alleges that

by virtue of the misconduct described above, Respondent failed

to make reasonable effort to protect students from conditions

harmful to learning in violation of Rule 6B - 1.006(3)(a), Florida

Administrative Code. Again, there is insufficient evidence to

conclude that by accidentally pushing student J.M. with her foot

and referring to the class as "jackasses," Respondent failed to

make a reasonable effort to protect students from conditions

harmful to learnin g. In fact, no harm or reasonably potential

harm is shown by the evidence. Two incidences of poor language

of a very minor nature and one accidental touching do not

demonstrate conditions harmful to learning amounting to a

violation of Rule 6B - 1.006(3)(a ), Florida Administrative Code.

The fact that the principal issued a reprimand, in this case,

does not support the conclusion that a violation warranting

State discipline has occurred since the employer has greater

latitude in discipline than the State, w hich is strictly

governed by statutes and rules. Therefore, Count 4 should be

dismissed.

12. Count 5 of the Administrative Complaint alleges that

by virtue of the misconduct described above, Respondent

intentionally exposed a student to unnecessary emba rrassment or

disparagement contrary to Rule 6B - 1.006(3)(e), Florida

Administrative Code. There is insufficient evidence that

Respondent intentionally exposed students to unnecessary

embarrassment by stating that they were "acting like jackasses"

and by pu shing student J.M. with her foot. Therefore, Count 5

should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Education Practices Commission enter a

final order dismissing the Admin istrative Complaint.

DONE AND ENTERED this 23d day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23d day of December, 2002.

COPIES FURNISHED :

Matthew K. Fos ter, Esquire

Edward T. Bauer, Esquire

Brooks, Leboef, Bennett & Foster, P.A.

863 East Park Avenue

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

John O. Williams, Esquire

Williams & Holz, P.A.

211 East Virginia Street

The Cambridge Centre

Tallahassee, Florida 32301

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224E

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 sh ould be filed with the agency that

will issue the final order in this case.