09-002404TTS Seminole County School Board vs. Cydney Abrams Status: Closed Recommended Order on Tuesday, February 2, 2010.

Summary: Respondent violated standards of professionalism, but termination is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2404

)

CYDNEY ABRAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on November 30 and December 1, 2009, in Sanford, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

For Respondent: Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for

termination of Respondent's contract of employment with the

Seminole County School Board.

PRELIMINARY STATEMENT

Respondent is an employee of the Seminole County School

Board (the "School Board"). By letter dated March 27, 2009, the

superintendent of public schools for Seminole County notified

Respondent that she was being suspended without pay and that a

recommendation would be made to the School Board to terminate

Respondent's employment. A Petition for Termination was

thereafter filed at the Division of Administrative Hearings

("DOAH") by the School Board. The matter was assigned to the

undersigned for the purpose of conducting a formal

administrative hearing. The hearing was held on the dates set

forth above, and both parties were in attendance.

At the final hearing, Petitioner presented the testimony of

four witnesses: P.M., parent of a child in Respondent's

classroom; Cydney Abrams; John Reichert, executive director of

Human Relations for the School Board; and Michael Blasewitz,

principal of Winter Springs High School (the "School").

Petitioner's Exhibits 1 through 13 were admitted into evidence.

Respondent called ten witnesses: Joseph Lim, a mental

health counselor who was offered and accepted as an expert in

the field; T.L., parent; M.M., parent; L.R-B., parent; D.B.,

parent; Cornelius Pratt, former assistant principal at the

School; Jimmie Blake, ESE teacher at the School; Joyce Smith,

paraprofessional at the School; Margo Rolle, ESE teacher; and

Cydney Abrams. Respondent's Exhibits 1 through 9 were admitted

into evidence.

At the conclusion of the final hearing, the parties advised

the undersigned that a transcript of the proceeding would be

ordered. The Transcript was filed at DOAH on December 16, 2009.

Due to the upcoming holiday schedule, the parties asked that

their proposed recommended orders be due on January 18, 2010.

Each party timely submitted a Proposed Recommended Order and

each was duly considered in the preparation of the Recommended

Order.

FINDINGS OF FACT

1. The School Board is responsible for hiring, monitoring

and disciplining teachers for the School. The School Board is

the governing board of the School District of Seminole County,

Florida, pursuant to Section 4, Article IX, Florida

Constitution, and Sections 1001.32, 1001.33, 1001.41, 1001.42

and 1012.33, Florida Statutes (2009). (Unless stated

specifically otherwise herein, all references to the Florida

Statutes shall be to the 2009 codification.)

2. Respondent is a licensed school teacher, certified by

the State of Florida. She began teaching in 1992; her

employment at the School started in 2002. Respondent is

certified as an Exceptional Student Education (ESE) teacher and

an Emotionally Handicapped (EH) teacher for grades K through 12.

3. In the 2008-2009 school year, Respondent was teaching

social studies and math classes for mentally handicapped

students at the School. On March 11, 2009, during her third

period math class, Respondent engaged in an argument with one of

her female students (J.P.). J.P. was a junior (11th grade

student) at that time. The argument between J.P. and Respondent

forms the basis of the School Board's decision to seek

termination of Respondent's employment.

4. On the date in question, another student (B.) had been

disciplined by Respondent and sent to the dean's office, because

the student lied to Respondent about why she was tardy to class.

J.P. was upset about B. being disciplined, because B. was J.P.'s

friend.

5. After B. was sent to the office, there were five

students remaining in Respondent's class. J.P. was observed by

Respondent talking to one of the other students, L.S.

Respondent told J.P. to stop talking and to do her work. J.P.

took great offense to this and began to berate Respondent about

not being an effective teacher.

6. Up until this point in time, Respondent considered J.P.

to be one of her favorite students. Respondent had taught

J.P.'s brother in previous years and had taught J.P. for three

years. The relationship between J.P. and Respondent had always

been cordial, friendly, and positive. Respondent would purchase

food for her students (including J.P.) and would subsidize her

students' field trips out of her own funds.

7. On the March 11, 2009, date, however, J.P. was very

upset with Respondent and made several derogatory comments about

Respondent. J.P. told Respondent that she (Respondent) did not

teach well and did not help her students when they needed help.

Among other comments, J.P. said that Respondent talked on the

phone too much, did not go over work with students, and did not

know how to teach. (There was no non-hearsay corroboration of

these allegations by any other students at final hearing.)

8. When J.P. first started talking, Respondent was calm

and seemed amused by J.P.'s accusations. The discussion,

however, then degenerated into a veritable shouting match

between the student and the teacher. During that shouting

match, ugly things were said by both Respondent and J.P.

Respondent used several curse words that were inappropriate in

the classroom setting. J.P. initiated the cursing between the

parties, but Respondent, apparently in an effort to show J.P.

that she was not going to be shocked by J.P.'s language,

repeated the offensive words in response to J.P.

9. Respondent made disparaging remarks bout J.P. and

J.P.'s family and even made comments about J.P.'s mental

capacity and inability to learn. The tone of the comments was

very harsh.

10. During the entire tête-à-tête between Respondent and

J.P., there were other students in the classroom. While the

debate was going on, some students were working on their

assigned tasks. One student (L.S.) began taping the

conversation at some point in time on her MP3 player. That

recording was provided to administration at the School and

formed the basis of an investigation by the School Board.

11. The argument lasted for the majority of the class

period on that date. The MP3 recording lasted 26 minutes and

ended when the bell rang for the end of class. While the

argument was going on, it seems that Respondent was moving

around the classroom, but she was obviously not helping any

students with problems at that time. Her entire energies were

devoted to the argument with J.P.

12. The tone used by Respondent and words she used were,

she admits, inappropriate and wrong. It is clear the student

was somewhat out of control, but engaging in a vicious debate

with her was not the appropriate response from a teacher.

Respondent is extremely remorseful about what transpired between

her and the student on that day.

13. Respondent had been previously reprimanded for using

inappropriate words in a classroom setting in the 2003-2004

school year. In the 2004 incident, however, Respondent had

written various curse words on the board after hearing a

mentally handicapped student utter such a word. Respondent used

that incident as a teaching moment to instruct her class that

some words were not acceptable in the classroom or in public.

For some reason, the School Board determined that the

presentation of those words, even when intended to be

instructional in nature, was wrong. (Apparently the only

cursing condoned at all at the School is by sports coaches

during practice times.) Respondent was issued a written

reprimand for that incident and warned not to utilize those

words in class again.

14. During the March 11, 2009, argument with J.P. (five

years after her prior reprimand), Respondent did utter some of

the words she had been instructed not to repeat. Granted, her

use of the words was in direct response to J.P.'s initiation of

the words, but Respondent did technically violate her directive

from the earlier reprimand.

15. Besides the use of inappropriate language during the

argument with her student, Respondent also overstepped the

boundaries of professionalism in other ways. First, she

disclosed certain confidential information about J.P. to other

students. Respondent stated out loud that J.P. was seeking a

special diploma, because J.P. was incapable of earning a regular

diploma. Second, Respondent made disparaging remarks about J.P.

and J.P.'s family, comments which were intended to embarrass or

hurt J.P.

16. The tone of the argument, though heated, carried an

underlying hint of the long (and friendly) relationship between

Respondent and the student. Respondent said she could not

conceive of J.P.'s speaking that way to any other instructor; it

was outside her normal behavior. J.P. apparently told the

School administrators that she had never spoken to another

teacher in that fashion. But J.P. obviously felt comfortable

enough with Respondent to voice those opinions to Respondent in

that manner.

17. Respondent's tenure at the School has been generally

positive. Her teaching skills have resulted in very laudatory

annual evaluations. In September 2008, Respondent was provided

an investigative summary of an incident, but there was no

discipline imposed. A memorandum was issued by Assistant

Principal Nash in May 2004 concerning an incident, but, again,

no discipline was imposed. Respondent did receive a reprimand

for the March 2004 incident concerning curse words mentioned

above.

18. Each of the students' parents who had met with

Respondent and observed her teaching skills was complimentary

about her. (The single parent testifying at the final hearing,

who had negative comments about Respondent's working with ESE

students, had never met Respondent, never attended his child's

IEP meetings with Respondent, and had never had any

communication with Respondent. Even that parent, however, said

he believes Respondent "needs another chance.")

19. Respondent has a good reputation with other educators

and administrators.

20. The School Board is seeking termination of

Respondent's employment for the March 11, 2009, incident. The

basis for the recommendation for termination seems to be that

the argument was serious in nature and followed on the heels of

a prior warning against using improper language in the

classroom. However, other disciplinary cases against educators

guilty of somewhat similar (though different in some respects)

violations have resulted in much less severe punishment. For

example:

A letter of reprimand and two-day suspension

without pay was given to an instructor who cursed

at students in the stairwell of the school.

A teacher who became upset over the change in her

own son's schedule at the school simply left the

campus, saying that she was sick of the place. She

was charged with abandoning her classes and leaving

the students without supervision. The teacher was

docked pay for the time she was absent without

leave and also suspended without pay for three

days.

A teacher who cursed at a school administrator in

front of other staff members was disciplined with

two days' suspension without pay.

21. In the case of Respondent, it is clear that her

actions are deserving of some form of discipline. Each witness

who testified, including Respondent, agreed that some sort of

discipline was warranted because Respondent's actions were

wrong.

22. At the time of the incident in question, Respondent's

supervisor was Assistant Principal Cornelius Pratt. Respondent

was considered by Pratt to be an exceptional teacher; he often

used Respondent as a "lead" teacher, i.e., an experienced

teacher, who could help new or struggling teachers succeed.

Pratt considers Respondent's teaching style and skills to be

first rate.

23. Pratt, as Respondent's supervisor, was not asked to

make a recommendation to the School Board as to what degree of

discipline should be imposed on Respondent for this incident.

Pratt believes termination is too severe a discipline based on

Respondent's history, skills, and the fact that other teachers

have been disciplined far less for similar violations.

24. Respondent's behavior toward J.P. is contrary to her

normal interaction with students. There is no evidence that

Respondent ever acted in such a fashion prior to this incident.

25. Respondent has been seen by a licensed mental health

counselor, Drim. It is the opinion of Drim that

Respondent would be able to safely return to the classroom and

that, in the short term without any intervention, there is

little likelihood of Respondent repeating her unprofessional

behavior. (This is due to the amount of trauma experienced by

Respondent as a result of her actions.) Drim further opined

that Respondent could benefit from anger management counseling

in order to ensure no further outbursts in the long term.

26. The director of Human Resources for the School Board

testified that in his experience, there was no other incident as

severe as the one at issue in this proceeding. He recommended

termination as the appropriate penalty. However, the director

was not aware of the relationship between Respondent and J.P.,

he was not aware of the situation in Respondent's classroom as

to the use of assistants (or lack thereof), and he had not

talked to J.P. or J.P.'s parents. His recommendation, while

reasonable based on his experience, lacks weight due to his

unfamiliarity with other salient facts about the matter.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

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

affirmative 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). In this matter, Petitioner

has the burden to prove, by a preponderance of the evidence,

that the allegations against Respondent are true and warrant

termination of Respondent's contract. See Sublett v. Sumter

County School Board , 664 So. 2d 1178 (Fla. 5th DCA 1995); and

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

DCA 1990).

29. The School Board has proven, by a preponderance of the

evidence, that Respondent's behavior on March 11, 2009, was

inappropriate and a violation of the standard of conduct

expected of school teachers.

30. The superintendent of schools for Seminole County,

Florida, has the authority to recommend to the School Board that

an employee be suspended or dismissed from employment.

§ 1012.27, Fla. Stat.

31. Dismissal of an annual contract teacher within the

contract period must be for good and sufficient reasons. Any

dismissal or disciplinary action for continuing contract

teachers shall be for just cause in compliance with Florida

Statutes and the Florida School Code. See Official Agreement

Between Seminole Education Association, Inc., and the School

Board of Seminole County, Sanford, Florida (the "Collective

Bargaining Agreement"), Article VIII, Sec. D.

32. In the absence of a rule or written policy defining

just cause, Petitioner has discretion to set standards which

subject an employee to discipline. See Dietz v. Lee County

School Board , 647 So. 2d 217 (Fla. 2nd DCA 1994). Nonetheless,

just cause for discipline must rationally and logically relate

to an employee's conduct in the performance of the employee's

job duties, and which is concerned with inefficiency,

delinquency, poor leadership, lack of role modeling or

misconduct. State ex. Rel. Hathaway v. Smith , 35 So. 2d 650

(Fla. 1948); In Re: Grievance of Towle , 665 A. 2d 55 (Vt. 1995).

33. In determining whether an action constitutes just

cause, one may consider Section 1012.33, Florida Statutes, which

states:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted and

found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

34. Of the prescribed acts constituting just cause above,

Respondent's actions most closely align with the "misconduct in

office" violation. Fla. Admin. Code R. 6B-4.009(3) states:

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.

35. The School Board did not prove, by a preponderance of

the evidence, that Respondent's effectiveness in the school

system had been impaired by her actions. The incident, while

egregious in its own right, does not seem indicative of

Respondent's normal demeanor. Despite having engaged in the

admittedly wrong behavior, Respondent has shown the requisite

remorse and willingness to prevent any further outbursts.

36. Respondent should be disciplined in some fashion for

her unprofessional behavior with student J.P. Respondent has,

in fact, already suffered financially and emotionally a great

deal as a result of the incident.

37. The use of vulgar language, especially in the context

of its usage by Respondent in the two incidents concerning her

classroom, is not a singular basis for termination of a

teacher's contract. The incidents involving foul language by

other teachers resulted in suspension without pay. Respondent

has already been suspended without pay for an entire school

year.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Seminole County School Board: (1) finding Respondent's behavior

to be inappropriate; (2) upholding the suspension without pay

to-date; (3) reinstating Respondent as a classroom teacher; and

(4) placing Respondent on probation for a period of two years.

DONE AND ENTERED this 2nd day of February, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of February, 2010.

COPIES FURNISHED :

Dr. Bill Vogel

Superintendent of Schools

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Dr. Eric Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

231 East Colonial Drive

Orlando, Florida 32801

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.