07-002698TTS Orange County School Board vs. Barbara Aboushahba Status: Closed Recommended Order on Friday, March 7, 2008.

Summary: Respondent touched and intimidated students after repeated disciplinary warnings. Respondent should be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-2698

)

BARBARA ABOUSHAHBA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on January 11, 2008, in Orlando, Florida.

APPEARANCES

For Petitioner: Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-0271

For Respondent: Lindsey N. Oyewale, Esquire

deBeaubien, Knight, Simmons,

Mantzaris & Neal, LLP

332 North Magnolia Avenue

Post Office Box 87

Orlando, Florida 32801-0087

STATEMENT OF THE ISSUES

Whether Respondent, Barbara Aboushahba, committed the

violations as alleged in the Administrative Complaint, and, if

so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

On May 14, 2007, Petitioner, Orange County School Board,

filed an Administrative Complaint seeking the severance of

Respondent, Barbara Aboushahba, who had a professional service

contract with Petitioner pursuant to Section 1012.33, Florida

Statutes (2006), for acts alleged in the Administrative

Complaint, which are, individually and collectively, in

violation of school board policies, constituting misconduct in

office, and are a violation of the Code of Ethics and the

Principles of Professional Conduct of the Education Profession

in Florida. On May 30, 2007, Respondent requested an

administrative hearing on Petitioner's decision to terminate her

employment. The case, forwarded by Petitioner, was received by

the Division of Administrative Hearings on June 15, 2007. On

June 18, 2007, an Initial Order was sent to both parties

requesting mutually convenient dates for a final hearing. Based

on the parties' response to the Initial Order, on June 27, 2007,

the case was scheduled for final hearing on October 11, 2007.

On September 28, 2007, Petitioner sought an amendment to

the Administrative Complaint to include the allegation that

several alleged acts of Respondent constituted "gross

insubordination." On October 10, 2007, an Order Allowing Motion

to Amend was entered. On October 2, 2007, the parties jointly

moved to continue the final hearing. The final hearing was

rescheduled for January 11, 2008, in Orlando, Florida.

At the January 11, 2008, hearing, Petitioner presented the

testimony of Danny Axtell, Carol Russ (who also testified as a

rebuttal witness), Jeff Bauer, Maggie Reynolds, and two

ten-year-old students, E.B. and E.M. Petitioner offered eight

exhibits, which were received into evidence and marked

Petitioner's Exhibits numbered 1 through 8.

Respondent testified on her own behalf and offered the

testimony of Kelly Ann Daugherty and Gabrielle Achlach.

Respondent offered eight exhibits, which were received into

evidence and marked Respondent's Exhibits numbered 1 through 8.

The two-volume Transcript of the hearing was filed with the

Clerk of the Division of Administrative Hearings on January 25,

2008. Proposed recommended orders were to be filed by

February 13, 2008. Both parties timely filed Proposed

Recommended Orders, which were thoughtfully considered.

All references are to 2006 Florida Statutes, unless

otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Petitioner, Orange County School Board, is the

governmental entity responsible for the operation, supervision,

and control of public schools in Orange County, Florida,

including the employment of personnel associated with the

educational process.

2. Respondent was employed by Petitioner as a kindergarten

teacher pursuant to the terms of a professional services

contract with Petitioner.

3. Respondent is a member of the bargaining unit covered

by the Collective Bargaining Agreement between the School Board

of Orange County and Orange County Classroom Teachers

Association.

4. On June 25, 2003, Respondent received a written

directive "to provide clarification or guidance" from the

principal of the school where she taught that she "must avoid

touching students except as is absolutely necessary to effect a

reasonable and lawful purpose," and "to avoid even the

appearance of verbal intimidation of students."

5. On May 18, 2005, Respondent received a letter of

reprimand for misconduct from her principal, because she

"grabbed a student to get his attention." In the letter she was

warned that "should there be another incident of a similar

nature, discipline, up to and including dismissal, may be

recommended."

6. On May 31, 2005, Respondent received a letter of

reprimand for violating "prior directives and [that you] again

placed your hands on a student in a manner that could be

interpreted as punitive." In addition, on that date Respondent

received a directive that she avoid "touching a student in a

manner that serves no educational or lawful purpose" and that

she "must exercise care and professional judgment to avoid the

appearance of the inappropriate use of physical intimidation."

She was urged to "carefully consider when and how to respond to

student behaviors."

7. On May 26, 2006, Respondent was suspended without pay

for five days as a result of "allegations that you used

inappropriate force against a student" and that she "violated

two previous directives regarding placing your hands on a

student."

8. On March 26, 2007, Respondent executed a Settlement

Agreement to resolve an Administrative Complaint that had been

filed by the Education Practices Commission in John L. Winn v.

Barbara Aboushahba , Case No. 056-0009-V. The Settlement

Agreement included a letter of reprimand and a $400.00 fine.

9. On April 22, 2007, E.B., a ten-year-old student in

Respondent's computer lab, had not completed his assignment.

Respondent grasped E.B.'s hand and placed his hand on the

computer keyboard and/or mouse, with her hand superimposed on

his hand. This apparently upset E.B., who then pulled his shirt

up and over his head. Respondent then pulled E.B.'s shirt down

from his face and told him to "stop crying like a baby." E.B.

was crying as a result of being upset by Respondent's actions.

10. Respondent's touching of E.B. was minimal, but

unnecessary and inappropriate. Her comment to him was callous

and insensitive. Given the fact that this incident occurred

less than one month after the above-referenced settlement with

the Education Practices Commission, it is apparent that

Respondent has not responded appropriately to the directives,

reprimands, and guidance directed to similar inappropriate

conduct.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of these

proceedings . § 120.57, Fla. Stat. (2007); Sublett v. District

School Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA

1993).

12. Petitioner is the constitutional entity charged with

the operation, control, and supervision of public schools in

Orange County, Florida. Art. IX, § 4, Fla. Const.

13. A district school board is considered the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes. As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or other legitimate

reasons." § 447.209, Fla. Stat. Any instructional staff member

may be suspended or dismissed at any time during the school year

for just cause, which includes misconduct in office and/or gross

insubordination, as those terms are defined by the State Board

of Education. § 1012.33(1)(a), Fla. Stat.

14. The appropriate standard of proof in a school board

dismissal proceeding, such as the instant case, is preponderance

of evidence. Sublett v. Sumter County School Board , 664 So. 2d

1178 (Fla. 5th DCA 1995).

15. Respondent is employed by the terms of a professional

services contract with Petitioner. Termination of employment is

governed by Subsection 1012.33(1), Florida Statutes, which

provides, in pertinent part, as follows:

(1)(a) Each person employed as a member

of the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a).

16. When a school board seeks to terminate an employee's

contract for just cause, it must establish each and every

element of the charge. MacMillan v. Nassau County School Board ,

629 So. 2d 226 (Fla. 1st DCA 1993).

17. Any disciplinary action taken against the employee may

be based only upon the conduct specifically alleged in the

written notice of specific charges. Lusskin v. Agency for

Health Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999); Cottrill v. Department of Insurance , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Department of Business and

Professional Regulation , 625 So. 2d 1237, 1238 (Fla. 2d DCA

1993); and Delk v. Department of Professional Regulation ,

595 So. 2d 966, 967 (Fla. 5th DCA 1992).

18. Petitioner's Amended Administrative Complaint, which

is the "charging document," alleges, in pertinent part:

1. The Respondent, at all times material to this

Complaint, was employed as a classroom teacher by the

Petitioner, the School Board of Orange County,

Florida. The Respondent was hired on October 1, 2001,

and is currently a reading teacher at Frangus

Elementary School.

2. The Respondent holds a professional service

contract of employment with the School Board of Orange

County, Florida.

3. That on or about June 25, 2003, the

Respondent received written directives for pushing a

student out of the way.

4. That on or about May 20, 2005, the Respondent

received a written reprimand for grabbing a student

with such force that the child fell to the ground.

5. That on or about May 31, 2005, the Respondent

received a written reprimand for violating prior

directives and placing her hands on a student.

6. That on or about May 26, 2006, the Respondent

received a five-day suspension without pay for

grabbing and pushing students.

7. That on or about November 22, 2006, the

Commissioner of Education, John Winn, found probable

cause to justify sanctions against the Respondent's

certificate.

8. That on or about April 26, 2007, the

Respondent attended a predetermination meeting

regarding new allegations of touching a student by

grabbing his hand and pulling his shirt down.

Respondent admitted to touching the student and told

him to "stop acting like a baby . . . go ahead and

pout . . . I don't care."

9. Such actions, individually and collectively,

by the Respondent are in violation of School Board

Policies, misconduct in office, gross insubordination

and a violation of the Code of Ethics and the

Principals of Professional Conduct of the Education

Profession in Florida.

10. Said violations, individually and

collectively, are sufficient grounds to sever the

professional service contract status of Respondent,

Barbara Aboushahba, and to terminate her employment

with the School Board of Orange County, Florida.

19. The term "misconduct in office" is not defined in

Subsection 1012.33(1)(a), Florida Statutes; the term is defined

in Florida Administrative Code Rule 6B-4.009, as follows:

(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, F.A.C., 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.

20. The term "gross insubordination" is not defined in

Subsection 1012.33(1)(a), Florida Statutes; the term is defined

in Florida Administrative Code Rule 6B-4.009, as follows:

(4) Gross insubordination or willful neglect

of duties is defined as a constant or

continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

21. The "Code of Ethics of the Education Profession,"

Florida Administrative Code Rule 6B-1.001 reads, as follows:

(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 the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

22. The "Principles of Professional Conduct for the

Education Profession in Florida," Florida Administrative Code

Rule 6B-1.006, reads, in pertinent part, as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education in Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student 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. . . .

23. Petitioner has not met the burden of proof as it

relates to its allegation that Respondent violated the Code of

Ethics and Principles of Conduct of the Education Profession in

Florida. Fla. Admin. Code R. 6B-1.001 and 1.006. While

Respondent's touching of E.B. and her comments were

inappropriate and do not reflect a level of self-control

expected of an educational professional, her actions were not so

egregious as to raise to the level that would be harmful to

E.B.'s opportunity to learn or effect his mental or physical

health or safety. While he was admittedly upset, he did not

suffer unnecessary embarrassment or disparagement or a serious

diminution of his legal rights.

24. Petitioner has failed to prove "misconduct in office"

as defined in Florida Administrative Code Rule 6B-4.009(3).

There is no factual evidence that suggests that Respondent's

treatment of E.B. was "so serious as to impair her effectiveness

in the school system." Nor has any student, parent, or educator

so opined. Purvis v. Marion County School Board, 766 So. 2d

492 (Fla. 5th DCA 2000); McNeill v. Pinellas County School

Board , 678 So. 2d 476 (Fla. 2d DCA 1993).

25. Petitioner has proved "gross insubordination" as

defined in Florida Administrative Code Rule 6B-4.009(4).

Respondent's lengthy history of directives, reprimands, and the

Settlement Agreement with the Education Practices Commission,

all related to inappropriate touching and verbal intimidation of

students, including her April 22, 2007, interaction with E.B.,

evidences an intentional refusal to obey a direct order,

reasonable in nature, and given by and with proper authority.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Respondent, Barbara Aboushahba's, "gross insubordination"

constitutes "just cause" under Section 1012.33, Florida

Statutes, to dismiss her from her employment as a teacher with

Petitioner, Orange County School Board.

DONE AND ENTERED this 7th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of March, 2008.

COPIES FURNISHED :

Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-0271

Lindsay N. Oyewale, Esquire

deBeaubien, Knight, Simmons,

Mantzaris & Neal, LLP

332 North Magnolia Avenue

Post Office Box 87

Orlando, Florida 32802-0087

Ronald Blocker, Superintendent

Orange County School Board

Post Office Box 271

Orlando, Florida 32802-0271

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department 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 Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.