05-000759 Taylor County School Board vs. Natalie Whalen Status: Closed Recommended Order on Wednesday, June 15, 2005.

Summary: The evidence did not establish that Respondent failed to obey the school principal`s directives and she should not be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAYLOR COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0759

)

NATALIE WAHLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause cam e on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on May 3 and 4, 2005, in Perry,

Florida.

APPEARANCES

For Petitioner Taylor County School Board:

Angela Ball, Esquire

Post Office Box 734

Perry, Florida 32348

For Respondent: Mary Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Respondent's employment with the

District School Board of Taylor County, Florida, should be

terminated.

PRELIMINARY STATEMENT

On January 19, 2005, Petitioner, District School Board of

Taylor County, Florida (School Board or District), suspended

Dr. Natalie Whalen (Dr. Whalen) with p ay because of an incident

occurring in her classroom on that day. In a letter dated

January 27, 2005, Oscar Howard, Jr., Superintendent of Schools,

informed Dr. Whalen that he intended to recommend to the School

Board that her employment be terminated bas ed on the January 19,

2005, incident. The letter stated that instructions given on

April 7, 2003, would be considered in the decision to terminate

employment.

In a letter dated January 28, 2005, through her attorney,

Dr. Whalen demanded a formal administ rative hearing. The demand

for a hearing was forwarded to the Division of Administrative

Hearings and filed February 28, 2005. The hearing was set for

May 3 and 4, 2005, and heard in Perry, Florida, as scheduled.

This case was tried in conjunction with Case Number

04 - 2166PL, which was an action against Dr. Whalen brought by the

Florida Commissioner of Education (Commissioner) before the

Education Practices Commission.

The School Board and the Commissioner called eleven

witnesses and the Commissioner had Exhibit Nos. 1 through 12

entered into evidence. The School Board had Exhibit Nos. 1

through 6 entered into evidence.

Dr. Whalen testified on her own behalf and called five

witnesses. She had Exhibit Nos. 1 through 2 entered into

evidence.

The only evidence considered in this case is evidence

relevant to the intended action of the School Board.

A Transcript was filed on May 20, 2005. After the hearing,

Respondent filed her Proposed Recommended Order on May 31, 2005,

and Petitioner filed its Propose d Recommended Order on June 3,

2005, subsequent to an order permitting an enlargement of time.

References are to Florida Statutes (2004) unless otherwise

noted.

FINDINGS OF FACT

1. The School Board has employed Dr. Whalen since 1997.

Sh e was, when first employed, a teacher at Gladys Morse

Elementary School and then was employed as a teacher at Taylor

Elementary School. Until January 19, 2005, she taught at Taylor

Elementary School. Her employment was pursuant to a

professional services contract.

2. Dr. Whalen has been confined to a wheelchair for almost

55 years. She cannot move her lower extremities and she is

without feeling in her lower extremities. On January 19, 2005,

she was approximately 58 years of age.

3. During times pe rtinent Dr. Whalen taught a "varying

exceptionalities" class. A "varying exceptionalities" class is

provided for students who have a specific learning disability,

or have emotional difficulties, or have a physical handicap or

handicaps. She has been an e xceptional student education

teacher for about 20 years. She has never been disciplined by

an employer during her career. In addition to her teaching

activities, she is County Coordinator for the Special Olympics.

4. The School Board operates the schoo l system in Taylor

County. The School Board is a party to a Master Teacher

Contract (Master Teacher Contract), with The Taylor Education

Association, which is an affiliate of the Florida Education

Association, the American Federation of Teachers, the AFL - CIO,

and the National Education Association. This contract governs

the relations between teachers, and others, and the School

Board. Accordingly, it governs the relations between the School

Board and Dr. Whalen.

5. Kathy Kriedler is currently a teacher at Taylor

Elementary School. She is certified in teaching emotionally

impaired children and has taught emotionally impaired children

in Taylor County since 1983. She is an outstanding teacher who

was recently named Taylor County Elementary School Teache r of

the Year and Taylor County District Teacher of the Year.

6. Ms. Kriedler is a master level instructor in Nonviolent

Crisis Intervention, which is a program of the Crises Prevention

Institute. The use of skills associated with the program is

general ly referred to as CPI. CPI arms teachers with the skills

necessary to de - escalate a crisis involving a student, or, in

the event de - escalation fails, provides the skills necessary to

physically control students. Ms. Kriedler has been the School

Board's C PI teacher since 1987.

7. CPI teaches that there are four stages of crisis

development and provides four staff responses to each stage.

These stages and responses are: (1) Anxiety - Supportive; (2)

Defensive - Directive; (3) Acting Out Person - Nonviolent Phy sical

Crisis Intervention; and (4) Tension Reduction - Therapeutic

Rapport. The thrust of CPI is the avoidance of physical

intervention.

8. The CPI Workbook notes that, "The crisis development

model . . . is an extremely valuable tool that can be utilized

to determine where a person is during an escalation process."

It then notes, helpfully, "Granted, human behavior is not an

orderly 1 - 4 progression."

9. The CPI Workbook provides certain responses for a

situation that has devolved into violence. CPI phy sical control

techniques include the "children's control position" which is

also referred to as the "basket hold." CPI also provides a

maneuver called the "bite release" which is used when a child

bites a teacher and the "choke release" which is used when a

child chokes a teacher.

10. CPI specifically forbids sitting or lying on a child

who is lying on the floor because this could cause "positional

asphyxia." In other words, the act of lying upon a child could

prevent a child from breathing which could r esult in injury or

death.

11. Ms. Kriedler teaches CPI throughout the District. The

School Board encourages teachers to learn and apply CPI in their

dealings with students. The use of CPI is not, however,

mandatory School Board policy nor is it require d by the State

Board of Education.

12. Dr. Whalen took and passed Ms. Kriedler's CPI course

and took and passed her refresher course. She had at least 16

hours of instruction in CPI. She could not accomplish some of

the holds taught because of her ph ysical handicap.

13. A memorandum dated April 7, 2003, and signed by

Principal Sylvia Ivey, was presented to Dr. Whalen by Principal

Ivey. The memorandum addressed conversations that Dr. Whalen

had with two of her colleagues on April 3, 2003. The memor andum

recited that these conversations raised concerns with regard to

whether Dr. Whalen was using appropriate CPI techniques. The

memorandum stated that Dr. Whalen's classroom would be video -

taped for the remainder of the school year, that Dr. Whalen was

to document each case of restraint used, that she should use

proper CPI techniques, and that she should contact the office

should a crisis situation arise in her classroom.

14. The record reveals that Dr. Whalen's classroom was

already being video - ta ped as early as November 20, 2002. It is

certain that the classroom was being video - taped daily from

April 2003, until the end of the school year. By January 2005

the practice of video - taping Dr. Whalen's classroom on a daily

basis had ended. The incide nt giving rise to this case was not

video - taped.

15. Principal Ivey's memorandum of April 7, 2003,

specified that ". . . Mr. Howard and I informed you that we will

video - tape your Classroom . . . ." Thus it is clear that it was

not Dr. Whalen's duty to c ause the classroom to be video - taped.

16. During January 2005, a school resource officer, who is

a deputy sheriff, was available should it become necessary to

physically restrain a child who was a threat to himself or

herself or others.

17. On January 19, 2005, J.R. a female, was a student in

Dr. Whalen's classroom. J.R. was ten years old and in the third

grade. J.R. had been a student in Dr. Whalen's classroom since

about January 10, 2005. Dr. Whalen did not know much about

J.R.'s history on January 19, 2005. At the hearing J.R.

appeared physically to be approximately as large as Dr. Whalen.

A determination as to exactly who was the larger could not be

made because Dr. Whalen was seated in a wheelchair at the

hearing. Assistant Principal Verges fo und that J.R.'s physical

strength was greater than average for an elementary school

student when once he had to restrain her after she bit another

person.

18. J.R. brought a CD player to class on January 19, 2005,

and after lunchtime, Dr. Whalen discovere d the CD player and

confiscated it. Dr. Whalen took possession of the CD player

because school rules forbid students to have CD players in

class. Dr. Whalen put it in a drawer by her desk. When this

happened, in J.R.'s words she, "Got mad."

19. A heate d discussion between Dr. Whalen and J.R., about

the dispossession of the CD player ensued, but after a brief

time, according to Dr. Whalen's aide, Angela Watford, "the

argument settled." Even though Ms. Watford's lunch break had

begun, she remained in the room, at Dr. Whalen's request, until

she was satisfied that the dispute had calmed.

20. Subsequent to the departure of Ms. Watford, J.R.

approached Dr. Whalen who was seated behind her desk working.

The configuration of the desk and furniture used by Dr . Whalen

was such that she was surrounded by furniture on three sides.

In order to obtain the CD player, it was necessary for J.R. to

enter this confined space. J.R. entered this space, moving

behind Dr. Whalen, and reached for the drawer containing the CD

player in an effort to retrieve it. When Dr. Whalen asked her

what she was doing, J.R. said, "I am getting my CD player and

getting out of this f _ _ _ _ _ _ class."

21. Dr. Whalen told J.R. to return to her desk. J.R.

continued in her effort to obta in the CD player and succeeded in

opening the drawer and grasping the headset part of the CD

player. Dr. Whalen attempted to close the drawer. J.R. reacted

violently and this surprised Dr. Whalen. J.R. attempted to

strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and

then put her arm around J.R. When J.R. pulled away, this caused

Dr. Whalen to fall from her wheelchair on top of J.R.'s back at

about a 45 - degree angle.

22. Immediately thereafter, J.R. bit Dr. Whalen several

times. The bite s broke Dr. Whalen's skin in three places and

the pain caused her to cry. J.R. began cursing, screaming, and

kicking. J.R. said she was going to "kick the s _ _ _" out of

her teacher. In fact, while on the carpet, J.R. kicked Dr.

Whalen numerous times. Dr. Whalen believed she would be in

danger of additional harm if she allowed J.R. to regain her

feet. This belief was reasonable. J.R. was in no danger of

asphyxiation during this event because Dr. Whalen removed part

of her weight from J.R. by extendin g her arms.

23. Upon returning from lunch Ms. Watford spotted T.B., a

boy who appears to be eight to ten years of age. T.B. was

standing outside of Dr. Whalen's classroom and he calmly said to

Ms. Watford, "Help."

24. Ms. Watford entered the classroom a nd observed

Dr. Whalen lying on top of and across J.R., who was face down on

the carpeted floor, and who was cursing and kicking while

Dr. Whalen tried to restrain her. Ms. Watford ran over to

assist in restraining her by putting her legs between J.R.'s

legs. J.R. thereafter tried to hit Ms. Watford with her right

hand. Ms. Watford grabbed J.R.'s right arm and was severely

bitten on the knuckle by J.R. The three of them ended up,

Ms. Watford related, "in a wad."

25. Within seconds of Ms. Watford's intervention, Frances

Durden, an aide in the classroom next door came on the scene.

She was followed by Takeisha McIntyre, the dean of the school,

and Assistant Principal Vincent Verges. Ms. McIntyre and

Mr. Verges were able to calm J.R. and safely sepa rate her from

Dr. Whalen.

26. Then J.R. stated that Dr. Whalen had bitten her.

27. Dr. Whalen and Ms. Watford went to the school's health

clinic to have their wounds treated. The wounds were cleaned

and Ms. Watford subsequently received an injection.

28. While Dr. Whalen and Ms. Watford were at the health

clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was

raised and the persons present observed two red marks between

her shoulder blades.

29. Dr. Whalen said that the marks must have been produced

by her chin or that possibly her teeth may have contacted J.R.'s

back. She said that she had forced her chin into J.R.'s back in

an effort to stop J.R. from biting her. Ms. McIntyre took

photographs of the marks. The photography was observed by

Mr. Verges.

30. The photographs reveal two red marks positioned

between J.R.'s shoulder blades. The two marks are vertical and

aligned with the backbone. They are from one, to one and one

half inches in length. The skin is not broken. There is no

wo und. Teeth marks are not discernible.

31. A teacher who has years of experience in the

elementary or kindergarten education levels, and who has

observed many bite marks, may offer an opinion as to whether a

mark is a bite mark. Mr. Verges has the requ isite experience to

offer an opinion as to the nature of the marks on J.R.'s back

and he observed the actual marks as well as the photographs. It

is his opinion that the two marks were caused by a bite.

Ms. McIntyre, who has also observed many bite mark s in her

career, and who observed the actual marks as well as the

photographs, stated that the marks were consistent with a bite.

Registered Nurse Cate Jacob, supervisor of the School Health

Program observed J.R.'s back on January 19, 2005, and opined

tha t the red marks on J.R.'s back were bite marks.

32. J.R. reported via her mother, the day after the

incident, that she had been bitten by a boy on the playground of

Taylor Elementary School, by a black boy with baggy pants,

possibly before the incident wi th Dr. Whalen. Facts presented

at the hearing suggest that it is unlikely that J.R. was bitten

under the circumstances described.

33. T.B. was the only nonparticipant close to the actual

combat who was a neutral observer. He did not see Dr. Whalen

bite J.R., but did see her chin contact J.R.'s back and he heard

Dr. Whalen say words to the effect, "I am going to make you say

'ouch.'"

34. Dr. Whalen denied biting J.R. She stated at the time

of the event, and under oath at the hearing, that she forcibly

c ontacted J.R.'s back with her chin. She stated that it was

possible that in the heat of the struggle her teeth may have

contacted J.R.'s back.

35. The opinion of the school personnel as to the origin

of the marks upon J.R.'s back is entitled to great we ight. On

the other hand, a study of the photographs exposed immediately

after the incident, reveals no teeth marks and no broken skin.

The marks are consistent with pressing one's chin upon another's

back or pressing one's teeth in one's back. In the lat ter case,

whether J.R. was bitten may be a matter of definition.

Generally, a bite occurs when the victim experiences a grip or

wound like that experienced by Ms. Watford or Dr. Whalen in this

incident. Although J.R. asserted that the marks occurred

beca use of the actions of, "a boy on the playground," given

J.R.'s general lack of credibility, that explanation is of

questionable reliability.

36. The evidence, taken as a whole, does not lend itself

to a finding as to the origin of the marks on J.R.'s back .

37. Principal Ivey's memorandum of April 7, 2003,

specified that ". . . Mr. Howard and I informed you that we will

video - tape your classroom . . . ." Thus it is clear that it was

not Dr. Whalen's duty to cause the classroom to be video - taped.

38. It i s found that the assault on Dr. Whalen was sudden

and unexpected.

39. J.R. was suspended from Taylor Elementary School for

ten days following this incident.

40. Sylvia Ivey has been the principal of Taylor

Elementary for three years. She has evaluated Dr. Whalen three

times. She has evaluated Dr. Whalen as "effective," which is

the top mark that a teacher may receive. Dr. Whalen received

memoranda of counseling on December 2, 2002, and April 7, 2003.

CONCLUSIONS OF LAW

41. The Division of Administr ative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.57(1) and 1012.33(3)(e) and (f). See also

Section S.2 of the Master Teacher Contract.

42. The burden of proof is on the party asserting the

affirmativ e of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the

School Board must establish facts upon which its allegations of

misconduct are prov en by a preponderance of the evidence. Dileo

v. School Board of Dade County , 569 So. 2d 883 (Fla. 3rd DCA

1990) and Sublett v. Sumter County School Board , 664 So. 2d 1178

(Fla. 5th DCA 1995). See also § 120.57(1)(j).

43. Section 1012.33(1)(a), provides that a teacher, such

as Dr. Whalen, who has entered into a professional services

contract may be dismissed only for just cause. This is

reiterated in Section S.2 of the Master Teacher Contract.

44. Section 1012.33(1)(a) defines just cause as misconduct

i n office, incompetency, gross insubordination, willful neglect

of duty, or conviction of a crime involving moral turpitude, and

states that these five reasons may be defined by rule of the

State Board of Education.

45. The State Board of Education has pro vided definitions

for the four of the five terms (willful neglect of duty is not

specifically defined), along with some obsolete terms (which are

not included below), in Florida Administrative Code

Rule 6B - 4.009, as follows:

6B - 4.009. Criteria for Suspens ion and

Dismissal.

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for four of the

five charges (willful neglect of duty is not

included in the rule) is hereby defined:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency 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 Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes; (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an ex tent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program fo r

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specializatio n.

* * *

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1 .006, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in natu re, and

given by and with proper authority.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude.

46. The letter dated January 27, 2005, which informs

Dr. Whalen that a recommendation of termination will be made to

the School Board, and which is the charging document in this

case, does not inform as to what specific rule has been

violated. It alleges two impermissible activities: (1) failing

to contact the school office for assistance until after the J.R.

incident escalated into a physical confrontation and (2) causing

the J.R. situation to escalate.

47. Failing to contact the school office for assistance

until the J.R. incident escalated into a physical confrontation

should be analyzed under Florida Administrativ e Code

Rule 6B - 4.009(4), because a failure to follow instructions is

alleged.

48. For this action to be just cause, the insubordination

must be a constant or continuing intentional refusal to obey a

direct order that is reasonable in nature. The only order

allegedly not obeyed was the order to contact the office in case

of a crisis. The letter recites one occurrence. A single

failure cannot be constant or continuing. Moreover, under the

circumstances, obedience could not have been reasonable. The

a ttack on Dr. Whalen was sudden. It was not foreseeable. Thus,

it is unreasonable to expect Dr. Whalen to have summoned

assistance.

49. The allegation that Dr. Whalen caused the J.R.

situation to escalate, alleges misconduct in office. In order

to defin e misconduct in office, it is necessary, according to

Florida Administrative Code Rule 6B - 4.009(3), to refer to

Florida Administrative Code Rules 6B - 1.001 and 6B - 1.006.

50. Florida Administrative Code Rule 6B - 1.001, provides as

follows:

6B - 1.001. Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of t he community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

51. Florida Administrative Code Rule 6B - 1.001, uses the

words "seek" and "strive" and is, therefore, aspirational and

does not provide for the specificity re quired to find just cause

to terminate or impose any discipline

52. Florida Administrative Code Rule 6B - 1.006, provides in

part as follows:

(3) Obligation to the student requires that

the individual:

( a) Shall make reasonable effort to protect

the st udent from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(f) Shall not intentionally violate or deny

a student's legal rights.

53. Upon reviewing the three subparagraphs recited above

it is determined that Dr. Whalen's actions on January 19, 2005,

did not violate any of them.

54. Article VII of the Master Teacher Contract, in the

first parag raph, recites: "The Board recognizes the necessity

for provision of measured [sic] to ensure both the authority and

personal protection of each member of the instructional . . .

staff." A teacher must have the authority necessary to control

her classroom , and this is provided by the Master Teacher

Contract.

55. The unrebutted testimony of Dr. Whalen proved that

school policy did not permit CD players to be possessed by

students in the classroom. It was reasonable for Dr. Whalen to

confiscate J.R.'s CD player and to place it in one of her

drawers. Dr. Whalen had the authority to do this.

56. Section D of Article VII of the Master Teacher

Contract provides that "an employee may use such force as is

deemed reasonable in protection from attack. . . ."

Dr. Whalen's reaction to J.R.'s assault was reasonable. Under

the circumstances, Dr. Whalen used remarkable restraint.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that Dr. Whalen be immediately reinstated to

her former position without diminution of pay or benefits,

pursuant to the Master Teacher Contract.

DONE AND ENTERED this 15th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administ rative 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 15th day of Ju ne, 2005.

COPIES FURNISHED :

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Angela M. Ball, Esquire

Post Office Box 734

Perry, Florida 32348

Daniel J. Woodring, General Co unsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John L. Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahass ee, Florida 32399 - 0400

Oscar M. Howard, Jr., Superintendent

Taylor County School Board

318 North Clark Street

Perry, Florida 32347

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the da te 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.