05-003084 St. Johns County School District vs. Kara Mort Status: Closed Recommended Order on Thursday, May 18, 2006.

Summary: Petitioner failed to show force against student by Respondent teacher was unreasonable under factual circumstances and therefore no misconduct and loss of effectiveness proven. Termination of Respondent reversed and all relevant lost benefits awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST JOHNS COUNTY SCHOOL )

DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3084

)

KARA MORT, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on f or formal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted in St. Augustine , Florida, on November 29 - 30, 2005 .

The appearances were as f ollows:

APPEARANCES

For Petitioner: Thomas J. Leek, Esquire

Kelly Parsons, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

For Respondent: Anthony D. Demma, Esquire

Meyer & Brooks, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether Respondent's employment as a teacher should be

terminated for just cause , as delineated in Section

1012.33(1 )(a), Florida Statutes (2005).

PRELIMINARY STATEMENT

This cause arose upon service on the Respondent, Kara Mort,

by a letter of July 12, 2005, of the recommendation that the

Respondent be terminated or dismissed from her teaching position

for alleging str iking a student. The Superintendent of the St.

Johns County School District, Joseph Joyner, recommended that

the Board dismiss the Respondent and the Board subsequently

voted to do so.

The Respondent elected to dispute the reasons for her

dismissal and h er dismissal itself, asserting that her behavior

under the circumstances was reasonable and lawful when she was

confronted with an altercation with a Ne a se High School Student

on May 17, 2005. Because she requested a formal proceeding , the

matter was refe rred to the Division of Administrative Hearings

and the undersigned Administrative Law Judge for conduct of a

formal proceeding and hearing.

The cause came on for formal hearing as noticed in St.

Augustine, Florida. The Petitioner presented the testimo ny of

five witnesses , one of which was on rebuttal, and one exhibit.

The Respondent presented the testimony of six witnesses,

including the Respondent herself, and introduced five exhibits

which were admitted into evidence. The proceedings were

transcrib ed and the parties availed themselves of the right to

submit proposed recommended orders after the filing of the

transcript. Upon the grant of an extension to the proposed

recommended order filing time, the Proposed Recommended Orders

were timely filed an d have been considered in the rendition of

this Recommended Order.

FINDINGS OF FACT

1 . Kara Mort (Dr. Mort) has worked in the field of

education since 1969 and in her chosen fi eld as a Special

Education teacher from 2001 through May 2005 in St. Johns

Cou nty, Florida. She earned a Bachelor's Degree in Art

Education from the University of North Carolina in 1968 ; a

Master's Degree in Emotionally Disturbed Student Education from

the Peabody College of Vanderbilt University in 1969 ; a Ph.D. in

Special Educati on and Administration and Supervision from the

University of North Carolina in 1982 ; and a Juris Doctorate

Degree from the University of Florida in 1989. She has been

certified to teach in North and South Carolina, Georgia, and

Florida and holds an active Florida teaching certificate in the

areas of Art, Emotionally Dist ur bed, Learning Disabled, Mental

Retardation, and Administration and Supervision. H er licensure

has never been subjected to any disciplinary action in any of

the states in which she h as ha d certification as an educator and

the evidence reflects no prior employment discipline during her

practice in the teaching profession.

2. Dr. Mort has been a National Board Certified Teacher

since 2001 , which allows her to earn a bonus of 10 percent of

the statewide average teacher's salary for each year of

employment in a full - time position in a Florida public school.

National Board C ertified T eachers in Florida can also earn

another 10 percent of the statewide average teacher salary as a

separate bon us in any year in which they perform a required

amount of mentoring services to help other teachers improve

their classroom skills. Dr. Mort earned both types of bonuses

in each of her four full years of service as a teacher for the

Petitioner School Dist rict , but was ineligible to receive either

bonus for the 2005 - 2006 school year because of the termination

action .

3. In April 2005 , the St. Johns County School Board

(Board) approved the Respondent for tenured teacher status under

a professional service s contract (PSC). Based upon her work in

the 2004 - 2005 school year at Nease High School she received an

outstanding performance evaluation. Principal Fred Cole offered

praise of her relationships with her students and her leadership

skills that year and she was selected by District officials to

attend a two - day leadership retreat as one of the District's

"cadre of excellent teachers and educational leaders."

4. Dr. Mort had two classroom aides beginning with the

2004 - 2005 school year, M s . Martha Lucas an d Ms. Kathleen Tolx.

Dr. Mort and the two aides were all new to Nease High School

that year. Dr. Mort had been hired by the Principal of Nease

High School, Robert Schiavone, to implement a new special

education program. The program included students wit h

significant learning disabilities and emotional disabilities.

The curriculum was focused on basic level academic skills , as

well as social , daily living , and employability skills.

5. Dr. Mort had eight or ten Special Education students in

her class at any given time during her school day that year.

The students were all mentally retarded to one degree or

another , with most having other substantial deficits , physical

or emotional , or sometimes both. One of the students, J.H., has

a history of engaging in physical attacks upon teachers, staff,

and parents, apparently often related to seizures. J.H. is a

large student , bein g approximately 5'10" tall and between 180

and 190 pounds in weight. When he is agitated he displays great

physical strength and agi lity and is difficult to restrain or

control. He often attacks his caretakers for seemingly minor

reasons or totally unpredictably . His attacks typically involve

grabbing his caretakers ' arms to claw and scratch at them. He

is extremely limited in his a bility to communicate . H is speech

is very limited and the sign language he knows is imperfect and

is best understood only by members of his family.

6. Ms. Lucas had been previously involved in J.H.'s

education, when she was part of a summer school progra m in which

he was enrolled in a prior school year. He attacked Ms. Lucas

during that summer school program and made a similar attack upon

Dr. Mort in the fall of 2004. After that attack on Dr. Mort in

the full of 2004 , Ms. Lucas told Dr. Mort that she wo uld not

intervene if he became violent again , although she would

continue to work with him on academic skills.

7. J.H. made significant progress during the 2004 - 2005

school year as to his academic and developmental progress. His

attacks on others diminis hed in frequency. His parents were

very pleased with Dr. Mort's program , her relationship with

their son , and the manner in which she managed his conduct when

he became violent. Jane H. , J.H.'s mother, and her husband

continue to feel the same way about Dr. Mort and her ability to

work effectively with J.H. and other students, notwithstanding

the May "striking incident" described below. They made those

feelings known to the Superintendent of the School District as

well as the School Board when the termin ation of Dr. Mort's

employment was under consideration.

8. Dr. Mort and her staff and J.H.'s mother, Jane H. , on

some occasions are able to diminish the anger and violent

conduct of J.H. by using certain techniques , such as threatening

to call the school resource officer, a deputy sheriff,

repeatedly making him aware that his conduct will not let him

get his way; and persuading him to take his oral medication

(Ativan) that tends to calm him down. His fits of anger and his

attacks are unpredictable, howev er, as to when the occur , how

long they will last, or how violent they may be.

9. During their discussions concerning J.H.'s progress and

management during the 2004 - 2005 school year, Mr. and Mrs. H and

Dr. Mort agreed that the Ativan should only be used sparingly

because it tends to put J.H. to sleep, wasting the rem a inder of

the school day after the medication is administered.

Additionally, since the medication is given orally , J.H. must be

willing to cooperate for it to be taken or administered in ord er

to achieve its calmative effect . B ecause of this discussion and

circumstance , Dr. Mort chose to use verbal techniques to calm

J.H. down , when possible , without given him the medication.

During those times when he remained agitated and aggressive he

wa s likely to refuse to take the medication anyway. The A tivan

was kept in the office area between the two adjoining Special

Education classrooms, one of which was Dr. Mort's.

10. The District provides " walkie - talkie " communicators to

teachers to enhance t heir ability to communicate with each

other, the staff, and the school resource officer (SRO) during

emergency situations. Ms. Binns kept two walkie - talkies in her

classroom area next door to Dr. Mort's classroom. Dr. Mort and

her classroom was not assig ned a walkie - talkie because

apparently the school did not have available the type that

Dr. Mort requested.

11 . During the 2004 - 2005 school year the Petitioner began

training a few of its special education teachers in a new crisis

intervention program kn own as PCM. Ms. Binns received the

training in the first half of that school year and her aide ,

Ms. Zwolinski , received PCM training in April or May of that

school year. The Respondent ha d requested the train ing, but was

not scheduled to attend any of th e 2004 - 2005 training session s .

PCM training was not provided to Ms. Lucas or Ms. Tolx during

that year either.

12. The special floor mat that is required in order to use

PCM restraint techniques was not present at Ne a se High School

during the school ye ar and the school did not yet have a full

PCM team of three or more trained persons during that school

year. PCM techniques are not authorized to be use d in

restrai n ing students by persons not trained in PCM techniques.

The physical restraint methods use d in PCM require two, three,

or four PCM trained individuals.

13. On March 7, 2005, Dr. Mort suffered a serious injury

to her left wrist and arm when another student, N.W., accidently

pushed her to the ground while trying to get past her. She

fractured h er wrist in trying to break her fall, hurt her

tailbone, and hit her head on a cabinet. She was unable to use

her left hand or arm during the reminder of the 2004 - 2005 school

year. He r left hand remains substantially useless as of the

date of the hearing . Although she was seriously injured ,

Dr. Mort had the presence of mind to remain calm and spoke

kindly to N.W. in order to keep him from feeling guilty about

causing her injury.

14. On May 17, 2005, J.H. was not feeling well . He

apparently was upset ab out school personnel changes he had

recently heard about involving the principal and assistant

principal leaving the school at the end of that school year. He

wanted to go home beca use he felt badly. He became very

agitated when Dr. Mort told him she was unable to send him home

because she was unable to contact his parents to come get him at

that time. Over the cour se of that morning J.H. intermittently

became upset, calmed down to the point where he would lie down

for periods of time, only to become agi tated again.

15. During the lunch period that day , shortly before noon,

he again became angry and frustrated about his circumstances and

acted out by throwing book s and other objects off a classroom

table and onto the floor , which caused a great deal of n oise.

Dr. Mort repeatedly told him in a stern tone that he would have

to pick up the books before he could go home. Eventually, he

did kneel down and beg in picking up the books.

16. Ms. Zwolinski , Ms. Binns ' a ide, heard the books land

on the floor and l ooked through the window between the

classrooms to se e what was happening. She entered Dr. Mor t 's

room briefly through the hallway between the rooms and heard

Dr. Mort twice ask Ms. Lucas to press the "panic button" to get

help. This is a button by which help can be summoned from

elsewhere on the campus during an emergency situation.

Ms. Zwolinski saw Ms. Lucas push the emergency button after

Dr. Mort's second, more agitated request. M s . Zwolinski then

returned to Ms. Binns ' room to work with the studen ts who were

returning from lunch. During the event she observed ,

Ms. Zwolinski did not see Ms. Tolx in Dr. Mort's room nor did

she see Ms. Tolx passing through Ms. Binns ' room on the way to

the adjoining room from the cafeteria. She never heard Ms. Tolx

ask Dr. Mort if she needed help dealing with J.H.

17. Dr. Mort then went to a nearby table where student

J.P. was seated. He was in the vicinity of where the books

landed. Dr. Mort was trying to be sure that he had not been hit

or hurt by the flying boo ks. In the meantime, J.H. stopped

picking up the books and went to the day bed in the classroom.

After sternly telling J.H. on ce again that he would not be able

to go home until he picked up the books, Dr. Mort began to kneel

down to help J.H. pick the b ooks up. At that moment J.H. ran at

Dr. Mort, and grabbed her arms as part of the first of three

attacks over a period of the next few minutes.

18. Initially he grabbed Dr. Mort's arms and clawed at the

lower parts of both arms. Dr. Mort stepped back and pulled away

from J.H. slightly and then he grabbed her again and beg a n

clawing at her breast area with one hand and the upper part of

her usable arm with his other hand. She continued to try to

twist out of his grasp as best she could, managing to bre ak free

slightly from his hold. He then attacked more violently a third

time resumed his clawing of Dr. Mort's upper arms and buried his

head into her chest and began biting her breast. By the time of

this third assault Dr. Mort moved back to a nearby ta ble and was

leaning back against it with her lower body. J.H. 's clawing and

biting of her breast caused severe pain , during which Dr. Mort

continued to ple a d for Ms. Lucas' assistance. Ms. Lucas was in

the room during the attack and finally pushed the em ergency

button at some point to summon help from the administration. No

help ever came. The attacks intensified and Dr. Mort continued

pleading for Ms. Lucas to help her. Ms. Lucas then retreated

into Ms. Binns ' classroom and got the walkie - talkie to tr y to

summon the school resource officer. This was to no avail. The

d eputy , the SRO , never arrived.

1 9 . Dr. Mort's sever e pain continued as she tried

unsuccessfully to fend J.H. off with her one functional arm and

hand. She was very concerned that his severe biting would cause

damage to her breast and nipple and made repeated efforts to

verbally snap J.H. out of his trance - like state , to no avail.

Seeing no sign of any help and being in severe pain, Dr. Mort

testified that she " cupped " her good hand a nd struck firmly one

time at J.H.'s upper shoulder. Dr. Mort hoped that a "cup - pop"

type of blow would create noise that would snap J.H. out of his

seizure like state and stop the attack.

20 . Dr. Mort's one strike of J.H. coupled with her request

for him to stop hurting her ultimately caused him to end his

assault and he let go of her immediately thereafter.

2 1 . The single blow, on or near J.H.'s left shoulder was

administered in the hope by Dr. Mort that it would prevent

further serious harm to her wi thout harming him. She did not

strike him out of anger , but as a means to defend herself and

snap him out of his tra n ce - like state and end the attac k . J.H.

suffered no injury or bruises with respect to the May 17th

incident , although Dr. Mort certainly d id. Moreover, J.H. was

never injured during the 2004 - 2005 school year , apart from

occasional self - inflicted bit e m arks on his arms.

22. Both Ms. Tol x and Ms. Lucas maintained that Dr. Mort

had sla pped J.H. in the fac e with her open hand, rather than

ad ministering a "cup - pop strike" to J.H.'s shoulder. In fact,

however, the competent , persuasive evidence shows that M s . Tolx

was in the lunchroom during the May 7, 2005, incident and did

not even see the attack of J.H. upon Dr. Mort nor Dr. Mort's

strike o f J.H. Ms. Lucas could not clearly seeing what was

occurring between Dr. Mort and J.H. because the room was

somewhat dark, she was busy locating and trying to use the

walkie - talkie in the next room and has poor visi o n. She

generally tried to avoid dealin g with J.H. when he beca me

violen t .

2 3 . Ms. Tolx and Dr. Mort ha d been roommates for a few

months in the Falll and W inter of 2004, because two hurricanes

had rendered Dr. Mort's home temporarily unlivable . Ms. Tolx

had angrily ordered Dr. Mort to leave her home one evening in

January of 2005 for allegedly causing an argument between her

and her 36 - year - old developmentally disabled son that resulted

in him leaving the house. Moreover, the relationship between

Ms. Lucas and Dr. Mort was a strained one as well. Dr. Mort

considered Ms. Lucas a poor employee and had previously told her

so. Ms . Lucas and Dr. Mort had had a heated argument only a

week before the J.H. incident and Ms. Lucas believed that

Dr. Mort planned to have her fired. Ms. Lucas sought a re -

assignment at some point and no longer works for the school

district.

2 4 . It is determined that the testimony of Ms. Lucas and

Ms. Tolx's under the above - found circumstances is not credible

and persuasive . T he testimony of Dr. Mort and Ms. Zwolinski is

more credible. Consequ ently , Dr. Mort's testimony concerning

the details of the incident involving the attack on her by J.H.

is more credible and is accepted over that of Ms. Lucas and

Ms. Tolx . Moreover, J.H. is a quite large , 190 pound student

who i s unpredictably aggressive and violent . If , indeed ,

Dr. Mort had slapped his face in an effort at self - defense and

in trying to get him to end an ac utely painful and injurious

attack, it is deemed to have been reasonable force , undertaken

in a last ditch effort at self - defense , to prevent further

physical harm to herself , w h ile caus ing the least possible harm

to the student in trying to stop his attac k . She did not strike

J.H. in anger or as a means of retaliation for his hurting her.

Under the circumsta nces found herein , based on persuasive ,

credible evidence, e ven more force than a slap to the fac e would

have been reasonable .

2 5 . The Department of Education has adopted guidelines to

evaluate the reasonableness of incidents of force used by

teachers t o prevent physical harm to themselves, school staff,

or students. Those guidelines were adopted in 1997 by the

Department of Education , as required by Section 1003.32(1)(j),

Florida Statutes (2005). Given the circumstances with which

Dr. Mort was confron ted on May 17, 2005, her physical response

to J.H.'s repeated and increasin g ly violent, painful, and

injurious attacks was undertaken solely to prevent more serious

injury to herself and to minimize injury to the student J.H. (in

fact he was not injured at all) . Such constituted reasonable

force as authorized by Section 1003.32(1), Florida Statutes

(2005), the referenced guidelines, as well as the applicable

collective bargaining agreement.

2 6 . Nothing Dr. Mort did on May 17, 2005, reduced her

effectivene ss as an employee of the School District. The

testimony adduced from witnesses presented by the Petitioner , to

the effect that there has been a loss of trust by parents, other

teachers, and students in Dr. Mort , because of her striking

J.H. , and to the ef fect that she cannot in the future maintain a

calm , positive , productive , and safe educational environment in

her classroom and with staff and parents is deemed unpersuasive.

2 7 . There is no persuasive evidence that other parents ,

some of whom testified, have found her to have lost her

effectiveness as a teacher and an employee of the School

District nor that parents have lost confidence and trust in

Dr. Mort as a teacher of their children. More credible and

accepted is Dr. Mort's testimony and that of J. H.'s mother

herself (and the other parent witnesses) who find that Dr. Mort

has provided an effective, po sitive, productive, and loving

educational environment for J.H. and other students. In fact ,

it is undisputed that Dr. Mort is academically well - quali fied to

teach exceptional students and the parents of the students in

her classroom have characterized her as an effective teacher

during her tenure at Nease High School. Additionally, Mr. Cole,

who was responsible for evaluating her during the 2004 - 2005

school year, observed and found a health y learning environment

maintained by Dr. Mort . H e gave her a very favorable formal

evaluation for that year.

2 8 . Dr. Mort's replacement for the 2005 - 2006 school year,

Mr. Hill, did receive PCM training. That mean s that Nease High

School now has a full PCM trained team of three individuals. In

the fall of the 2005 - 2006 school year, Mr. Hill and

Ms. Zowlinski responded to yet another physical encounter

between J.H. and Ms. Tolx. The y had to use an aggressive two -

person PCM restraint technique to subdue J.H. In order to

restrain J.H. , who continue d f l ailing and scratching at them

during this occurrence, Mr. Hill and Ms. Zowlinski ultimately

had to sit on him for an hour and ten minutes before calling the

school re source officer to help end the encounter.

Ms. Zowlinski suffered a serious back injury as a result of this

incident and restraint of J.H.

2 9 . Because of the termination action, Dr. Mort lost a

substantial amount of regular salary, supplemental pay , and

bonus income she would have otherwise earned. Among those lost

wages and bonuses are her previously - approved summer school pay,

hospital/home bound salary for services she expected to provide

that summer and into the next school year , and almost $10,000.0 0

payable to her because of her N ational B oard T eacher 's

certification status. Additionally, she could not attend, and

was not paid for an approved two - day leadership retreat to which

she had been invited. She has lost both leave and retirement -

related credits and benefits and ha d to pay COBRA insurance

premiums of over $400.00 dollars per month to secure continued

medical insurance coverage since October 1, 2005.

30 . In summary, the above - found facts , based upon

persuasive , credible testimony and evid ence show that Dr. Mort

employed reasonable force in her involvement in the incident of

May 17, 2005.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § § 120.56 9 and 120.57(1), Fla. Stat. (2005).

3 2 . The Petitioner has the burden of proving by a

preponderant evidence that it has just cause to terminate the

Respondent's employment as a tenured classroom teacher. In

order to do so it must show that Respondent, D r. Mort, engaged

in misconduct in office and engaged in acts of misconducts so

serious as to impair her effectiveness as an employee of the

School District.

3 3 . In accordance with the provisions of Section

1003.32(1), Florida Statutes (2005), a Florida te acher has

authority to use reasonable force to protect herself or others

from injury , according to standards adopted by the State Board

of Education. In accordance with Article VII B of the

collective bargaining agreement , in evidence , of which the St.

Jo hn s County School District is a signatory, teachers employed

by that School District have authority to use such legal force

as is necessary to protect themselves from attack and to prevent

bodily injury to themselves or others .

3 4 . In consideration of t he facts determined in this case

and the application of the reasonable force guidelines of the

Department of Education , State Board of Education , the physical

contact with J.H. engaged in by Dr. Mort in the May 17, 2005,

incident constitutes the employment of reasonable force. Thus,

the Petitioner has not proven that Dr. Mort engaged in any

act ual misconduct. Therefore, it did not prove impairment of

her effectiveness as a District e mployee. In fact, and at law,

the conduct engaged in by Dr. Mort did not constitute an

impairment of her effectiveness as a District e mployee.

3 5 . The Petitioner has accused the Respondent of

misconduct in office because she allegedly struck J.H.

Misconduct in office is defined at Florida Administrative Code

Rule 6B - 4.009( 3) as constituting:

[A] violation of the Code of Ethics of the

Education profession as adopted in Rule 6B -

1.001, Florida Administrative Code, and the

principles of professional conduct for the

education profession in Florida as adopted

in Rule 6B - 1.006, F. A.C., which is so

serious as to impair the individual's

effectiveness in the school system.

3 6 . This definition of misconduct has been generally held

to require proof of not only serious misconduct, but also of

resulting, meaningful, impairment in the in dividual ' s level of

classroom effectiveness. See e.g. , McKinney v. Castor , 667 So.

2d 387, 389 - 390 (Fla. 1st DCA 1995); Tenbroeck v. Castor , 640

So. 2d 164, 168 (Fla. 1st DCA 1994); MacMillan v. Nassau County

School Board , 629 So. 2d 226, 230 (Fla. 1st DC A 1993); Braddock

v. School Board of Nassau County , 455 so. 2d 394, 396 (Fla. 1st

DCA 1984).

I. Misconduct in Office

A. Whether the Striking of J.H. Constituted Lawful

Reasonable Force

3 7 . Section 1003.32, Florida Statutes (2005), delineates

the au thority and responsibilities of classroom teachers in

creating and maintaining control and discipline in their

classroom. Section 1003.32(1)(j), Florida Statutes,

specifically authorizes teachers and other school personnel to

"[u]se reasonable force, acco rding to the standards adopted by

the State Board of Education, to protect himself or herself or

others from injury."

3 8 . Recommended Reasonable Force Guidelines were approved

by the State Board of Education in 1997 as a result of the work

and recommenda tion of a committee formed by the Florida

Department of Education. See Joint Exhibit 3 in evidence.

Those recommendations set forth the types of situations which

might require a teacher to exercise reasonable force, and Item E

of the recommendations spec ifically includes instances where

force may be needed to protect school personnel from harm or

injury. The guidelines set forth parameters that should be

applied to known facts to determine whether or not a particular

use of force constitutes reasonable u se of force. The factors

to be considered are :

1. Severity of offenses.

2. Size and physical condition of

participants

3. Patterns of behavior

4. Potential danger, physical and other.

5. Availability of assistance.

6. Actions taken prior to use of physical

force.

3 9 . The recommendation further define s reasonable force as

"appropriate professional conduct including physical force as

necessary to maintain a safe and orderly learning environment."

The recommendations describe a safe environ ment as one in which

persons are protected from injury or t h reat of injury. Although

the State Board recommendations include no mathematical formulas

to help assess how the various factors must be weighed and

analyzed together, all the relevant factors ta ken from the

guidelines appl ied to the subject situation demonstrate that

Dr. Mort used reasonable force in the course of the May 17,

2005, incident.

40 . The is no question that Dr. Mort was physically harmed

and caused severe pain by J.H.'s attack at th e time she struck

him in an effort to defend herself and stop the ongoing assault.

It is also undisputed that J.H. is a large , strong student , with

a history of frequent , unpredictable attacks on teachers and

staff in ways that can cause physical injury c onsidering his

large size and strength when he launches a violent assault .

J.H.'s attack on Dr. Mort presented much more than a minimal

risk of harm to Dr. Mort , particularly when one considers that

she was unable to use her left hand and arm at all to p rotect

herself due to a previous injury caused by another student.

41 . Certain of the Petitioner's witnesses attempted to

draw a parallel between J.H.'s May 17, 2005, attack on Dr. Mort

with other less significant attacks on staff members that were

stopp ed without the use of force. Dr. Mort's testimony

concerning the intensity, severity, and pain inflicted by J.H.'s

assault on her on May 17, 2005, is , however , more persuasive and

credible as to what actually occurred on that occasion. The

pictures of Dr . Mort's resulting injuries , depicited in

Respondent's Exhibit Five in evidence , support her testimonial

account of the intense , physically harmful , and painful attack.

These pictures show that , a t a minimum , J.H. had exceeded his

typical practice of scra tching the lower arm s of those he

attacked to far more damaging attempts to gouge at Dr. Mort's

upper arms and to severely bite her breast and nipple. The

testimony of J.H.'s mother concerning the unpredictability of

the level of violence associated with her son's seizure - induced

attacks further confirms that J.H. is easily capable of

inflicting the type of severe injuries Dr. Mort described .

Thus, factors two and three of the State Board Guidelines

concerning reasonable force , as well as factor four just ify a

finding of reasonable force.

4 2 . The Petitioner's position at hearing , beyond the

rather curious contention that all physical force i s

inappropriate and unlawful, despite the existence of the State

Board's guidelines, quoted above ( and indeed the a bove - cited

statute ) , essentially involved raising the issue of what

assi s tance might have been available to Dr. Mort and whether

Dr. Mort took adequate and reasonable steps to obtain it to end

the attack prior to striking J.H. Concerning this issue the

av oidance methods described by the Petitioner's witnesses were

all previously shown to be those which Dr. Mort had no

opportunity or time to employ , (under the harried circumstances

of the attack) nor the training or resources to have employed ,

under the set of circumstances that existed in the classroom at

the time . Several witnesses testified concerning the use of

walkie - talkies to obtain assistance from other parts of the

campus , including that of the school resource officer. The

record shows, however, t hat Dr. Mort had no walkie - talkie in her

classroom. She had requested one but had not been issued one.

This apparently was because she requested a different model from

the standard walkie - talkie , such as that used in the adjoining

classroom , and which no n - standard type was apparently not on the

school's "purchase list." Be that as it may, when M s . Lucas

finally and belated ly attempted to use the walkie - talkie in the

neighboring classroom to summon help, no one responded. It is

also true that Dr. Mort re peatedly asked Ms. Lucas to push the

emergency button to summon help from the administration or the

School Resource Officer , but that Ms. Lucas was slow to respond.

When she did press the emergency button no one responded.

4 3 . The Petitioner also offe red testimony concerning the

availability of medication for J.H. which might have been

effective in calming him. Both Dr. Mort and J.H.'s mother

testified, however, that their plan throughout that year was to

use that medication very sparingly , only when absolute ly

necessary. This is because it caused J.H. to go to sleep and

effectively cancelled out any productive time in the classroom

for the rest of the day when he took the medication. Moreover,

J.H. often refused to take oral medications at a time wh en he

was agitated . It is generally impossible to distinguish between

J.H.'s p ermanent or temporary periods of calm. Therefore,

before J.H. became violent on May 17, 2005, Dr. Mort reasonably

believed that his periods of calm or resting indicated that th e

situation could be controlled that day without the use of the

Ativan medication. Once the physical assault got under way ,

Dr. Mort had no opportunity to get to the medication which was

kept in the office between the two classrooms , and certainly no

hope of getting him to comply with taking the oral medication

under his agitated , violent , seizure - dominated state.

4 4 . Two special education officials, Ms. Chancey and

Ms. Resnick, testified concerning the virtues of the recently

adopted crisis management t echnique known as PCM , in controlling

situations such as J.H.'s attack. Dr. Mort did not use PCM

methods to control J.H. or to help avert the need to strike him.

However, to the extent these witnesses might imply that Dr. Mort

was remiss in this regard, the evidence is undisputed in that

Dr. Mort was never provided such training , even though she

requested it , and that an untrained individual has no authority

to use PCM technique s. Neither of Dr. Mort's aides had PCM

training and a PCM team was not in pla ce at the school in that

school year. The restraint mat for PCM techniques did not

arrive at Nease High School until the following school year .

4 5 . In any event, no amount of training or resources would

have helped Dr. Mort stop J.H.'s attacks by herself with the use

of only one hand and it is undisputed (and deplorable) that

Ms. Lucas offered no physical assistance. It is unrealistic to

assume that Dr. Mort alone would have been able to prevent the

incident with J.H. had she used the preliminary series of PCM

de - escalation techniques, which she had not been trained to use.

Such an assumption would be wholly inconsistent with the facts

established by preponderant evidence concerning the

unpredictable nature and severity of J.H.'s intermittent atta cks

on staff members. In fact, in the following school year , during

one of the attacks , two PCM trained , able - bodied employees took

more than an hour to restrain and control an attack by J.H.

4 6 . A few of the Petitioner's witnesses testified that

J.H. c alm s down at the mere mention of the name of the school

resource officer. The record reveals, however, that it often

takes the actual arrival of the school resource officer to calm

J.H. down. At times that does not even prove effective. The

preponderan t evidence, however, establishes that verbal

reference s to calling the school resource officer were made

during the May 17, 2005, incident , which had no calming effect

on J.H. In fact, Dr. Mort did all she could to seek

paraprofessional and school adminis trator assistance and

repeatedly tried to verbally de - escalate the situation during

the short time she had to do so. Thus F actors 5 and 6 of the

State Board guidelines , applied to th ese facts , support a

finding of reasonable force by Dr. Mort.

4 7 . Facto r 1 of the State Board guidelines refers to the

" severity of offenses. " This factor refers to the extent of

physical contact engaged in by the teacher. There is a factual

dispute in the testimony as to whether Dr. Mort slapped J.H. in

the face with her o pen hand or hit him with a cupped hand in the

upper shoulder area to get him to focus on what he was doing and

stop the attack. Either action in th ese painful, injurious,

factual circumstances constitutes reasonable force . Indeed,

additional force would have been reasonable under these

circumstances.

4 8 . There is no dispute that J.H. was not hurt and that

the physical contact by Dr. Mort brought the incident to a swift

conclusion. Dr. Mort also engaged in no contact with J.H. after

he stopped his attac k upon her. Regardless of the exact amount

of the cupping of the hand that Dr. Mort used and the precise

location of the st r ike, the preponderant , credible evidence

leads to a conclusion that her purpose in striking him was only

to do so in such a manner as to b ring him out of his trance - like

state and end his attack with the least amount of harm to her or

to him. The preponderant credible evidence presented favors the

Respondent as to each of the six reasonable force factors of the

State Board of Educati on guidelines. It is thus concluded that

Dr. Mort used reasonable force under these circumstances and

thus did not engage in an act of misconduct in office. c.f.

Packer v. Orange County School Board , 881 So. 2d 1204, (Fla. 5th

DCA 2004).

B. Effectivenes s as a Teacher

4 9 . The Petitioner presented s everal witnesses who gave

conclusory and somewhat self - serving testimony regarding their

opinion that Dr. Mort had lost the ability to be an effective

teacher because of fears and loss of trust that her conduc t

toward J.H. might have created among students, parents , and her

colleagues . This testimony, however, is accorded little weight

when contrasted with direct classroom observation - derived

testimonial and documen tary evidence showing long - standing and

ongoi ng effectiveness in her fi eld. Moreover, if Dr. Mort

engaged in no misconduct , as has been concluded and found above ,

then the issue of continued effectiveness is moot in any event .

50 . Dr. Mort possess es impressive academic credentials and

job experie nce in all matters related to special education

curriculum, methodology, and instruction. She was evaluated

near the end of her first year of Nease High School and found by

Mr. Fred Cole who evaluated her, to have done a "great job" and

to have demonstrat ed excellent educational leadership. Mr. Cole

consistently observed a good learning environment in Dr. Mort's

classroom during that school year. That was the same school

year when the incident with J.H. occurred . The evaluation was

dated April 13, 2005, approximately one month before the

incident with J.H. There is no reason to conclude that

Dr. Mort's single physical response in self - defense against a

violen t, injurious attack involving gouging, biting of her

breast and nipple, etc. by a large Special Education student ,

with a history of attacking school staff, can be such serious

conduct as to render Dr. Mort ineffective when she has been an

otherwise outstanding teacher her entire career.

51 . Any conclusion of serious misconduct or loss of

eff ectiveness is render ed incredible in view of the clearly

demonstrated fact that the singl e blow struck by Dr. Mort

(whether cupped hand or open hand ; to the shoulder or to the

face) ended the attack by J.H. without causing any harm to him.

5 2 . Parents of three of Dr. Mort's eight full - time

students in that 2004 - 2005 school year testified on behalf of

the Respondent. Each of those parents was happy with the work

Dr. Mort had done with their children , said positive things

about Dr. Mort's job knowledge and performance and manner of

interacting with students. They each specifically would welcome

another opportunity to have Dr. Mort teach their child.

5 3 . The most significant parental testimony came from Jane

H. Jane H. testified extensively about the q uality of

Dr. Mort's instruction, the depth Dr. Mort's knowledge of her

son's needs, and the level of Dr. Mort's commitment to J.H.'s

progress inside and outside the classroom. Jane H. knows more

about the nature of her son's developmental problems and hi story

of violent behavior than anyone else. With full knowledge of

th e striking inciden t , she understands the necessity of

Dr. Mort's conduct in that situation and has been in similar

situations with her son . She respects Dr. Mort to this day , as

does J. H. himself. In fact, and significantly, Jane H.

testified that Dr. Mort was the first person to inform her of

the May 17, 2005, encounter , later that same day. These parents

who know their children's challenges best , and have had to deal

with special edu cation programs and teachers for many years , all

want Dr. Mort to continue teaching. Such testimony is

considerably more credible , persuasive and probative of

Dr. Mort's actual teaching effectiveness than is the non -

observational , conclusory testimony add uced by the Petitioner.

5 4 . The Petitioner simply failed to prove by preponderant

persuasive evidence that the May 17, 2005, incident between

Dr. Mort and J.H. could possibly justify a finding of misconduct

nor that it was so serious as to impair her eff ectiveness as an

employee of the District. Therefore, the burden to sustain a

just cause reason for her termination has not been met.

C. Witness Credibility

5 5 . Dr. Mort's testimony and that of Ms. Zwolinski is

deemed more credible and persuasive than that of witnesses

Ms. Lucas and Ms. Tolx. There is no question that J.H.

physically attacked Dr. Mort , who subsequently struck J.H. in an

effort to defend herself and stop the attack. There is a

dispute beyond that concerning the severity of the attack , the

sufficiency of attempts made by Dr. Mort to calm J.H. before

striking him, the degree of assistance offered by Ms. Lucas , and

the precise details of how Dr. Mort struck J.H. The Respondent

maintains that Dr. Mort , as the closest observer of the events

and the person who felt the pain of the attack and feared for

her safety, provided the most competent , credible testimony

about those disputed matters. The Respondent also presented

testimony from which it is reasonable to infer that both Ms.

Lucas and M s. Tolx harbored animosity towards Dr. Mort and ample

evidence to support findings that Ms. Lucas did not see the

events clearly and that Ms. Tolx was not present at all to

observe the material events surrounding the attack itself.

5 6 . Ms. L ucas claims s he clearly saw Dr. Mort slap J.H.

with an open hand, but later admitted that it was hard to see

much in the dimly lit room and that she subsequently was

distracted from the struggle between Dr. Mort and J.H. by her

efforts to find the walkie - talkie in the adjoining room and

contact the SRO. She also testified that Dr. Mort never asked

for help, which is directly contrary to the testimony of

Ms. Zwolinski and Dr. Mort , as well as the common sense

inference one may draw that a teacher being g ouged and bitten on

the breast and nipple by a violent student would seek assistance

from any other adult in the classroom.

5 7 . Another negative impingement on the credibility of

Ms. Lucas' testimony concerns her testimony that she was "very

upset" when this incident occurred because she was so close to

J.H. That testimony is directly contradicted by Jane H., J.H.'s

mother. Further Ms. H.'s assessment of that relationship is

consistent with Dr. Mort's testimony to the effect that

Ms. Lucas did not like dealing with J .H. closely because she

feared his history of attacking her and others. Whether a

function of confusion, bad memory or an attempt to distort the

facts, Ms. Lucas is the only person who testified that these May

17th events took place around 2:00 p.m. All other witnesses

place the events as occurring near the end of the lunch period

from approximately 12:00 p.m. to 12:15 p.m.

5 8 . In addition to these inconsistencies and errors is the

fact that Ms. Lucas had had a significant argument with Dr. Mort

only a week or two previously and apparently believed that

Dr. Mort was intent upon getting her fired from her job.

Ms. Lucas is simply not a credible witness and her testimony is

not credited to the extent it is contrary to that of Dr. Mort

and other witnesse s.

5 9 . Ms. Tolx's testimony is also discredited because the

preponderant persuasive evidence shows that she was not in

Dr. Mort's classroom during the attack or when Dr. Mort struck

J.H. All other testimony places her in the cafeteria and even

her own t estimony shows that she was going back and forth from

the cafeteria to the classroom and seeing only a small portion

of the struggle between J.H. and Dr. Mort. Although Ms. Tolx

claims to have walked back into the room just as Dr. Mort

slapped J.H., the r emainder of her testimony indicates she was

in the room only briefly at the precise time , earlier , that

Ms. Lucas was trying to push the emergency button. By ever y

other account , including Ms. Zwolinski's, Ms. Lucas's, and

Dr. Mort's , that period of time actually occurred shortly after

J.H. t hrew the books on the floor , and well before any physical

contact between J.H. and Dr. Mort occurred.

60 . Ms. Zwolinski had no reason to lie about Ms. Tolx,

Ms. Lucas, or anyone else involved in the matter. She cred ibly

testified that she did not see Ms. Tolx in the vicinity of the

hallway entrance between the two classrooms at that time.

Ms. Zwolinski also testified that she never heard Ms. Tolx ask

Dr. Mort if she needed help, as Ms. Tolx claims to have done.

She never saw Ms. T olx walking through Ms. Binns classroom to

get to Dr. Mort's classroom either.

61 . Ms. Tolx might have a motive for being less than fully

accurate in what she claims she saw occur in Dr. Mort's

classroom because she had a major dispute wi th Dr. Mort several

months earlier during that school year , described in the above

findings of fact .

6 2 . Ms. Tolx demonstrates a somewhat less than close

acquaintanceship with truth and accuracy with regard to her

testimony in other ways . For instance , she denied that J.H. had

ever attacked her during the fall of 2005 - 2006 , thereby caus ing

Ms. Zwolinski and Mr. Hill to use PCM techniques to try to get

J.H. under control. Ms. Zwolinski however, specifically

described this incident and testified that sh e and Mr. Hill

intervened because J.H. was attack ing Ms. Tolx. Ms. Zwolinski

has good reason to recall that incident since she sustained a

substantial back injury in the process . S he and Mr. Hill

a pparently had to sit on J.H. for over an hour until they

obtained other assistance in controlling J.H. Ms. Tolx also

claimed to have 36 - years experience with emotionally handicapped

students and then had to admit , during voir dire , that she was

not referring to her employment experience but simply to her

dealin gs with her 36 - year old handicap ped son over such a period

of time. She similarly attempt ed to enhance the basis for her

knowledge of J.H.'s needs , condition , and idiosyncrasies by

highlighting what was really a very limited several years

experience with him while she was a "bus aide" from 2001 - 2004.

6 3 . In view of these an d other credibility deficits

arising from the testimony from Ms. Lucas and Ms. Tolx , their

testimony , to the extent it contradicts or is inconsistent with

that of Ms. Zwolinski, Dr . Mort, and other witnesses , is not

credited .

II. Remedy

6 4 . In asmuch as it has been determined that the Petitioner

did not have just cause for the termination of Dr. Mort ,

Dr. Mort therefore should be reinstated in her position and

should be made whol e through the payment of all wages and

benefits she would have received had she not been wrongfully

terminated. In Dr. Mort's case there are a number of items of

l o st pay and benefits which should be part of the remedy.

6 5 . In addition to her right to recoup the regular wages

she would have earned in the 2005 - 2006 school year had she not

been terminated (including any pay increases she would have

received this school year) , Dr. Mort should be paid for the

National Board Certification bonuses she would have received had

she remained employed as a teacher in 2005 - 2006 and for the

hospital/homebound services she was slated to provide in the

summer of 2005 and into the 2005 - 2006 school year. She should

also be paid for the hospital/homebound services for w hich she

was not paid, but which services she provided during the 2004 -

2005 school year. She should also be paid for the summer school

duties she had been approved to provide prior to the termination

action, and for the May 2005 Learning Leadership Retrea t she had

been asked to attend and had planned to attend.

66. She ha s paid COBRA health insurance premiums of some

$422.00 per month since October 2005 to continue her medical

care coverage, and all such COBRA payments should be reimbursed.

Dr. Mort al so would have accrued or had the opportunity to use

additional leave during the 2005 - 2006 school year, and would

have received uninterrupted Florida R etirement S ystem service

credit had she remained employed. As part of the remedy in this

case , the Distri ct should take all steps necessary to restore

the leave and retirement credit Dr. Mort would have accrued but

for this termination.

6 7 . The Petitioner raised issues during the hearing

regarding Dr. Mort's current workers' compensation status and

employme nt limitations placed upon her by workers' compensation

physicians since mid - September 2005. Dr. Mort testified that

she has been receiving partial pay from the workers'

compensation program since sometime in mid to late September

2005 , when those physici ans determined she could not return to

her old job until her therapy was concluded and/or her work

situation change d .

6 8 . Upon reinstatement , Dr. Mort should receive full pay

until a date her workers' compensation partial payments began.

She should rece ive the difference between that partial pay and

what her full pay would have been had she not been terminated,

at least until such time as she finishes her physical therapy

and knows definitely what teaching - related limitations, if any,

remain. Since the hearing Dr. Mort has undergone physical

therapy and more remains to be provided in an effort to increase

her left arm function. Adopting such an approach to the issue

of Dr. Mort's appropriate back pay would have the effect of

truly making her whole, whil e also recognizing the impact of her

workers' compensation situation on the employer's attempt to

provide make - whole relief.

6 9 . In summary, for the reasons found and concluded

herein , the Petitioner has failed to meet its burden to prove by

preponderant evidence that Dr. Mort engaged in any act of

misconduct in office. Consequently, all charges should be

dismissed and a final order be entered reinstating Dr. Mort to

her employment position ,

RECOMMENDATION

H aving considered the foregoing Findings of Fac t,

Conclusions of Law, the evidence of record, the 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 St. Johns County dismissing all char ges and reinstating

Dr. Mort to her employment position with the full range of

regular and supplemental back - pay and reimbursement of all

categories of lost benefits, a s delineated above, as a "make -

whole" remedy.

DONE AND ENTERED this 18th day of Ma y , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

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

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 18th day of Ma y , 200 6 .

C OPIES FURNISHED :

Thomas J. Leek, Esqui re

Kelly Parsons, Esquire

Cobb & Cole

Post Office Box 2491

Daytona Beach, Florida 32115 - 2491

Anthony D. Demma, Esquire

Meyer & Brooks, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

Dr. Joseph Joyner

Superintendent

St. Johns County School Board

4 0 Orange Street

St. Augustine, Florida 32084 - 3693

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Depar tment of Education

Turlington Building, Suite 1244

325 West Gaines Street

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 Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.