04-001592 Nassau County School District vs. Karen Hanna Status: Closed Recommended Order on Thursday, March 24, 2005.

Summary: Petitioner failed to prove gross insubordination when Respondent refused to provide medical records that the Superintendent lacked authority to demand the Respondent file a child abuse report naming first grader in an incident she thought not abusive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NASSAU COUNTY SCHOOL )

DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1592

)

KAREN HANNA, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Fernandina Beach, Florida, on October 21, 2004.

APPEARANCES

For Petitioner: Brian T. Hayes

Brian T. Hayes, P.A.

247 North Jefferson Street

Post Office Box 1275

Monticello, Florida 32344

For Respondent: John Joseph Cascone

101 Centre Street

Post Office Box 1852

Fernandina Beach, Florida 32035

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's

teaching contract for gross insubordination, in violation of

Section 1012.33(1)(a), Florida Statutes, and Florida

Administ rative Code Rule 6B - 4.009(4), or incompetency in the

form of a lack of emotional stability, in violation of Section

1012.33(1)(a), Florida Statutes, and Florida Administrative Code

Rule 6B - 4.009(1)(b)(1).

PRELIMINARY STATEMENT

By Recommendation of Superin tendent: Request to Transfer

Hearing dated April 22, 2004, Petitioner's Superintendent

recommended to Petitioner School Board that it terminate

Respondent's employment on the grounds that she had acted so as

to impair her effectiveness as an employee of t he School Board,

failed to discharge her duties due to inefficiency or

incapacity, and acted insubordinately.

By Pre - Hearing Stipulation filed August 6, 2004, Petitioner

agreed that the issues remaining to be litigated were incapacity

and insubordination, as these terms are defined in Florida

Administrative Code Rule 6B - 4.009(1) and (4), respectively.

During opening statement, Petitioner's counsel restated his

intention to proceed on these two issues exclusively.

At the hearing, Petitioner called four wi tnesses and

offered into evidence eight exhibits: Petitioner Exhibits 1 - 8.

Respondent called one witness and offered into evidence two

exhibits: Respondent Exhibits 1 - 2. The parties jointly offered

one exhibit: Joint Exhibit 1. All exhibits were admi tted.

The court reporter filed the transcript on March 7, 2005.

Petitioner filed its Proposed Recommended Order on March 2,

2005. Respondent filed her Proposed Recommended Order on

January 12, 2005.

FINDINGS OF FACT

1. Respondent has been employed by Pet itioner as a teacher

for 14 years. During the 2003 - 04 school year, Respondent taught

first grade at Southside Elementary School, where she has taught

for many years.

2. On Wednesday, October 1, 2003, Respondent entered the

school cafeteria to pick up her students. As she entered the

cafeteria, she met Susan Ross, the school guidance counselor.

Ms. Ross informed Respondent that she had seen one of

Respondent's male students put his hand on the chair seat of

another boy, who was about to sit down, evidentl y in an attempt

to grab the buttocks or genital region of the boy as he sat

down.

3. Respondent replied that one of her students had

reported that, a few weeks previously, the same male student,

while in the boys' restroom, either had pulled another boy's

p ants down or had tugged at the waistband of another boy's

pants. Respondent had never been able to ascertain exactly

what, if anything, had happened in the restroom that day because

she had not been present and the child told her different

versions of th e events.

4. At the time of the conversation with Ms. Ross,

Respondent viewed the male student's misbehavior as horseplay,

not sexual abuse. Obviously, Ms. Ross did not interpret the

cafeteria incident that she had witnessed as sexual abuse, or

else she wo uld have reported it to the principal and the

authorities.

5. At the conclusion of her brief conversation with

Ms. Ross, Respondent told Ms. Ross that Respondent would discuss

the student's misbehavior with his mother, with whom Respondent

had a good rela tionship, and the mother would help bring the

misbehavior to end. Ms. Ross said nothing in response.

6. Later on the same day of the cafeteria incident,

Ms. Ross summoned Respondent to Ms. Ross's office. Ms. Ross

told Respondent that she could not talk to the student's mother

because she "might be in on it," meaning that the mother might

be part of some sexual abuse that the child was acting out. Ms.

Ross informed Respondent that she needed to report the student's

actions because he was perpetrating sexua l abuse on another

child.

7. At about this point in the conversation, Diana

Middleton, who was then in her second year as principal of

Southside Elementary School, entered Ms. Ross's office and

joined the conversation. Ms. Ross repeated her belief that

Res pondent was obligated to call the authorities -- specifically,

the Department of Children and Family Services' child abuse

hotline. Ms. Middleton agreed with Ms. Ross and told Respondent

that a teacher had a duty to call the Department of Children and

Famil y Services when a child showed the behavior that the male

student had shown. Stating that it was not Respondent's job to

determine the truth of a child's statement, Ms. Middleton twice

directed Respondent to call the child abuse hotline, and she

directed her to make a student disciplinary referral and

intervention team referral.

8. By these directives, Ms. Middleton implied that the

student was or might be a perpetrator of sexual abuse, rather

than a victim of sexual abuse. Logically, if Ms. Middleton had

believed the child to be a victim of child abuse, she would not

have directed Respondent to complete a disciplinary referral,

which is punitive in nature.

9. However, Respondent continued to believe that the

child's behavior was nothing more than horsepla y, and she

continued to believe that the mother's intervention was the

logical and appropriate first step in dealing with this

misbehavior. Respondent also believed that Ms. Middleton and

Ms. Ross were overreacting and basing their opinions upon

incomplet e or inaccurate information.

10. Respondent considered her options and elected to

compromise by taking the recommendation of the principal to

complete the intervention team referral form. She completed the

intervention team referral form by checking eight b oxes,

including "impulsive," "inappropriate sexual behavior,"

"hyperactive," and "daydreams." Respondent stated as the reason

for the referral: "inappropriate sexual advances: grabbing

'private' areas, pulled down another student's pants in the

bathroom ."

11. The intervention team referral emphasizes maladaptive

behavior, characteristics, and attitudes, such as "loneliness,"

"fearful," and "immature," rather than outright misbehavior,

which is more directly addressed by a disciplinary referral. In

complet ing an intervention team referral form, a teacher or

administrator describing the behaviors justifying the

intervention does not need to engage in the kind of factfinding

that typically precedes the imposition of discipline because the

purpose of the inter vention team referral is to find additional

resources to help a child, not to punish a child or to deter

future misbehavior.

12. Over the next couple of days, Ms. Middleton became

frustrated with Respondent's passive resistance, rather than

outright defiance . By Friday, October 3, 2003, someone else at

the school called the child abuse hotline and reported the

student as a perpetrator of sexual abuse, based on the alleged

restroom incident and possibly the cafeteria incident, as well.

By the start of school on Monday, October 6, 2003, the student's

mother visited the school after having learned of the abuse

report. The mother demanded that Ms. Middleton transfer her

child to another classroom immediately, and Ms. Middleton did

so.

13. Later in the afternoon of the same day, a child

protective investigator from the Department of Children and

Family Services visited the school and interviewed Ms. Middleton

and Respondent. Respondent gave a statement that corresponds to

the facts set forth above.

14. At this point, Ms. Middleton's dissatisfaction with

Respondent's performance intensified. Already unhappy with

Respondent's failure to call the child abuse hotline,

Ms. Middleton now believed that Respondent falsely understated

the facts to the investigator, as compared to the facts stated

by Respondent in the intervention team referral form described

above.

15. It is difficult to justify Ms. Middleton's conclusion

that, essentially, Respondent had lied to the investigator. As

noted above, the different levels of exactitude appropriate to

the intervention form and the statement to a child abuse

investigator could account for what little discrepancy -- and it

is only one of emphasis -- between the narrative in the

intervention form and Respondent's testimony, which presumably

tra cks her statement to the investigator. For some reason, as

these events were unfolding, Ms. Middleton discredited

Respondent's ability to evaluate the source of the alleged

restroom incident, although Ms. Middleton admitted at the

hearing that Respondent had the responsibility of sorting out

the alleged restroom incident to determine whether the male

student was guilty of any misbehavior that required reporting to

the authorities. Obviously, Ms. Middleton could not reasonably

have expected Respondent to report the cafeteria incident, which

was witnessed by Ms. Middleton's guidance counselor, not

Respondent.

16. Unfortunately, the situation deteriorated. A local

television station eventually picked up the story and tried

unsuccessfully to interview Respond ent. An unidentified person

then called Petitioner's Superintendent and reported that

Respondent was contemplating suicide. The Superintendent

responded by alerting the police, who dispatched uniformed

officers to Respondent's home. The police offered R espondent

the alternative of arrest or involuntary hospitalization, and

she chose the latter.

17. After a short time at a local hospital, where

Respondent refused medication, Respondent was transferred that

evening to Baptist Hospital in Jacksonville. The nex t morning,

a psychiatrist examined Respondent and, finding no psychiatric

basis for an involuntary commitment, changed Respondent's status

to voluntary and released her. Evidently in deference to the

stress of the prior evening, the psychiatrist wrote Res pondent a

letter excusing her from work for a week. He later wrote a

letter saying that she was able to return to work.

18. The record discloses nothing about any problems or

emotional instability that Respondent ever exhibited in the

classroom or at school. However, by letter dated January 15,

2004, Respondent's Superintendent demanded, among other things,

"[i]nformation relating to your medical condition and/or status

at admission and upon your release." Although the

Superintendent's letter claimed to be concerned with

Respondent's emotional condition and her ability to return to

work, most of the items demanded by the Superintendent in this

letter pertained to Respondent's involvement in the above -

described incidents of early October 2003. Specifically, he

demanded information about allegations that Respondent had

shared confidential information with the male student's parent,

her response to the local television station's coverage of the

incident and her letter to the local newspaper that she had been

co erced by the school administration to complete the

intervention team referral form, her accounting of discrepancies

between the information on the intervention team referral form

and her statement to the child protective investigator, and a

description of her reaction to being told by Ms. Middleton that

her work was unsatisfactory. The letter suspends Respondent,

with pay, retroactive to January 5, 2004.

19. In his opening statement, Petitioner's counsel

predicated the charge of insubordination on Respondent's refusal

to file an abuse report and refusal to provide the

Superintendent with the medical information that he had

demanded. As for Respondent's refusal to supply her medical

records to the Superintendent, Petitioner relies on its Rule

3.04(II) for autho rizing the Superintendent to demand these

documents.

20. However, this rule authorizes Respondent's School

Board to require medical or psychiatric examinations when

claimed necessary by the Superintendent, and the rule does not

give even the School Board the authority to demand records from

other examinations. While testifying, the Superintendent

admitted as much and disclaimed any reliance, as to the charge

of gross insubordination, upon Respondent's refusal to supply

him the medical records from her evenin g at Baptist Hospital.

21. As for Respondent's refusal to file a child abuse

report, Ms. Middleton's directive to do so was unreasonable.

Ms. Middleton herself acknowledges that a teacher must sort out

the facts before filing a child abuse report. Responden t did so

in this case and determined that the incident did not constitute

a reportable matter. Her determination was factually

reasonable, especially given the requirements of the statute

governing reports of child abuse, as discussed below.

CONCLUSIONS O F LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2004).

23. Section 1012.33(1)(a), Florida Statutes, provides that

teacher employment contracts shall provide for termination for

"j ust cause," which includes "gross insubordination" and

"incompetency," as these terms are defined in the rules.

24. Florida Administrative Code Rule 6B - 4.009 provides, in

relevant part:

The basis for charges upon which dismissal

action against instructional pe rsonnel may

be pursued are set forth in Section 231.36,

Florida Statutes [former statute]. The

basis for each of such charges is hereby

defined:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of in efficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a panel of

expert witnesses appropriately appointed

from the teaching profession by the

C ommissioner of Education. Such judgment

shall be based on a preponderance of

evidence showing the existence of one (1) or

more of the following:

* * *

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate ph ysical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

* * *

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continu ing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

25. Petitioner has the burden of proving the material

allegations by a preponderance of the evidence. See , e.g. ,

Allen v. School Board of Dade Count y , 571 So. 2d 568 (Fla. 3d

DCA 1990).

26. Petitioner attempted to prove incompetency by

incapacity -- specifically, lack of emotional stability. However,

the record contains no evidence whatsoever that Respondent lacks

emotional stability.

27. Petitioner also atte mpted to prove gross

insubordination, but the record shows that the demands imposed

on Respondent by the Superintendent and principal were

unreasonable or unauthorized.

28. As he conceded, the Superintendent lacked the

authority to demand for Respondent's med ical records, so his

demand was not reasonable, nor was it given by someone with

proper authority to demand Respondent's medical records.

Respondent's refusal to supply these records thus could not and

did not constitute gross insubordination.

29. Regardless whether the principal had the authority to

order that Respondent file a child abuse report, the order in

this case was unauthorized and unreasonable. Factually, the

principal was unaware of the shaky factual basis for the alleged

restroom incident and adm itted that, had she been aware of this

fact, she would not have directed Respondent to file a child

abuse report. Respondent reasonably determined that she had no

factual basis for filing a report, and the principal's order to

file one was unreasonable un der the circumstances.

30. Legally, the principal's order, which was based on her

suspicion that the male student was a perpetrator, not victim,

of child abuse, was unauthorized by the statute and, thus,

unreasonable. No witness testified to a belief, now or then,

that the male student was a victim of abuse and perhaps acting

out sexually with other students. As a matter of law, a first -

grade child cannot be a perpetrator of child abuse. Section

39.201(1)(a), Florida Statutes, provides, in relevant part:

Any person who knows, or has reasonable

cause to suspect, that a child is abused,

abandoned, or neglected by a parent, legal

custodian, caregiver, or other person

responsible for the child's welfare, as

defined in this chapter, shall report such

knowledge or suspicion to the [Department of

Children and Family Services . . ..

31. A first - grade child is not a caregiver or a person

otherwise responsible for the welfare of one of his fellow

first - grade students. Apparently, the principal relied on a

School Board rul e that was, according to the principal and

Superintendent, intended to track the statute, but unfortunately

fails to include the restrictive language as to the class of

potential perpetrators.

RECOMMENDATION

It is

RECOMMENDED that the Nassau County Schoo l Board enter a

final order dismissing the proceeding against Respondent to

terminate her employment contract.

DONE AND ENTERED this 24th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

___ ________________________________

ROBERT E. MEALE

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

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of March, 2005.

COPIES FURNISHED:

Dr. John L. Ruis, Superintendent

Nassau County School Board

12 01 Atlantic Avenue

Fernandina Beach, Florida 32034 - 3499

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Brian T. Hayes

Brian T. Hayes, P.A.

247 North Jefferson Street

Post Office Box 1275

Monticello, Florida 32344

John Joseph Cascone

101 Centre Street

Post Office Box 1852

Fernandina Beach, Florida 32035

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 da ys from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.