09-002966TTS Brevard County School Board vs. Rita M. Green Status: Closed Recommended Order on Wednesday, April 28, 2010.

Summary: Respondent unnecessarily used force to attempt feeding of an autistic student, leaving bruising. Such conduct is just cause for termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2966

)

RITA M. GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on January 12-13, 2010, in Viera, Florida, before J. D. Parrish,

the designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joseph R. Lowicky, Esquire

Glickman, Witters and Marell, P.A.

1601 Forum Place, Suite 1101

West Palm Beach, Florida 33401

For Respondent: Matthew E. Haynes, Esquire

Jeffrey Sirmons, Esquire

Johnson and Haynes, P.A.

The Barrister’s Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Rita M. Green (Respondent), committed the

violations alleged, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 5, 2009, the superintendent of schools on behalf of

Brevard County School Board (Petitioner), issued a letter to

advise Respondent that she was being recommended for termination

from her employment with Petitioner. Prior to that time (on or

about February 19, 2009) Petitioner advised Respondent that an

investigation would be conducted concerning allegations that

Respondent force fed an autistic student assigned to her class.

In follow-up to the investigation, Petitioner determined it had

"just cause" to terminate the Respondent's employment with the

district.

More specifically, Petitioner maintains that Respondent

committed violations of the professional standards for teachers

in Florida constituting misconduct in office and rising to the

level that justifies termination of her employment. Respondent

has disputed the allegations of the case and timely requested an

administrative hearing. The case was forwarded to the Division

of Administrative Hearings (DOAH) for formal proceedings on

May 29, 2009.

At the hearing, Petitioner presented testimony from 11

witnesses. Petitioner's Exhibits numbered 1-19, 21 and 23-32

were admitted into evidence. Respondent testified on her own

behalf and offered testimony from three witnesses. Respondent's

Exhibits numbered 1-7, 9-13, 14-20 and 23 were also admitted

into evidence. The two-volume Transcript of the proceedings was

filed with DOAH on February 1, 2010. By stipulation the parties

agreed to file their proposed recommended orders not later than

March 3, 2010. Both timely filed proposals that have been fully

considered in the preparation of this Order. Unless otherwise

noted, all references are to Florida Statutes (2009).

FINDINGS OF FACT

1. Petitioner is a duly-constituted entity charged with

the responsibility and authority to operate, control, and

supervise the public schools within the Brevard County Public

School District (school district). As such, it has the

authority to regulate all personnel matters for the school

district.

2. At all times material to the allegations of this case,

Respondent was an employee of Petitioner and was subject to the

disciplinary rules and regulations pertinent to employees of the

school district.

3. Respondent was assigned to teach an exceptional student

education class at University Park Elementary School (UPES).

Respondent's class at UPES consisted of a group of pre-K

handicapped students with varying exceptionalities. Respondent

allowed two students from a nearby sixth grade class to "help

out" during a portion of the school day. Additionally, a full-

time teacher's aide was assigned to Respondent's class who also

assisted Respondent with the students. It is undisputed that

Respondent's students were challenging due to their various

limitations and exceptionalities.

4. One of the students in Respondent's class was a young,

non-verbal autistic child who typically spent only a half day at

the school. The child, who was three or four years old, brought

food for the lunch period but would primarily eat the finger

foods packed by the mother that did not require a utensil. The

child's mother packed a special spoon with a certain design and

color that the child used for foods like applesauce.

5. Autistic children require consistency and a strict

adherence to routine. Deviations from their comfort zone and

routine can lead to tantrums or other undesirable reactionary

behaviors. The autistic child in Respondent's class was typical

in this regard. The student did not adjust well to change and

would exhibit adverse responses to the unexpected.

6. Respondent knew the child well enough to understand the

need for, and the importance of, consistency and adherence to

routine. With regard to the student's individual education plan

(IEP), the student was to begin working on feeding skills using

a hand-over-hand teaching method. Eventually it was expected

that the student would develop the skill to self-feed those

foods requiring a utensil. Force feeding was not prescribed by

the IEP or expected by the student. In fact, whether or not the

student actually consumed food was not required by the IEP.

7. On February 18, 2009, Respondent's aide began to set up

the lunch foods for the students in the class. This was one of

the aide's assigned duties and was a routine of the class day.

With regard to the autistic student previously described, the

aide set out the finger foods packed in the lunchbox as well as

jars of other foods requiring a utensil. Unfortunately, the

student's mother had forgotten to pack the special utensil that

the student was accustomed to using/seeing.

8. The student began to eat the finger foods and did not

display any agitation or poor conduct. When Respondent

approached the student with a disposable "spork" that she

intended to use for the food in jars, the child began to

tantrum. It was evident the autistic student did not react well

to the spork. Respondent observed the adverse reaction but

persisted in her efforts to feed the student. She wrongly

presumed that if the student would taste the food, the

familiarity of the food would overcome the adverse reaction to

the spork. The more Respondent tried to get the student to eat,

the more the student resisted and fought.

9. At one point Respondent enlisted the assistance of one

of the helper sixth grade students (both of whom were in the

classroom at the time). Respondent directed the student to hold

the autistic child so that she could put the spork/food into the

student's mouth. Despite continuous opposition from the child,

Respondent held the student's face with one hand and used her

other hand to shove food toward the student's mouth. This

behavior was confirmed by both of the sixth graders as well as

the aide who was also present.

10. As a result of the incident described above, the

autistic student was left with bruises that depicted a handprint

on one side of the face. This bruising remained visible the

next day and was photographed by authorities.

11. Respondent maintained that the student had caused the

injuries by resisting and pulling away from her. It is common

for autistic children to injure themselves during tantrum

events. Nevertheless, had Respondent not held the face so

tightly, the bruising would not have occurred. The simple

solution to avoid the injury would have been for Respondent to

release the student when the adverse reaction to the spork

began.

12. In fact, the proper response to any stimulus that

causes an adverse reaction with an autistic child is to remove

the offending trigger. Autistic children will continue to

respond adversely so long as the offensive trigger remains. In

this case, Respondent merely wore the student out. The

thrashing and resistance continued until the student could fight

no more.

13. When the student was scheduled to go home (at the

usual pick up time), Respondent advised the mother that the

student was asleep. She returned later to pick up the child but

noticed the student's demeanor and behavior were different.

Further, the bruising on the student's face was evident. The

mother accepted Respondent's explanation for the discoloration.

oubled by what she had observed Respondent do, the

aide reported the incident to school administrators.

Administrators spoke with the two sixth-grade students who had

been in the class at the time of the incident who corroborated

the aide's representation of what had occurred. The witnesses

confirmed Respondent restrained the child with her legs, held

the student's face tightly with one hand, and attempted to shove

food with the spork.

15. As is required by law, the school administrators

reported the incident to authorities who initiated an

investigation into abuse allegations. Respondent did not then,

and did not at hearing, accept responsibility for causing the

bruising on the student's face.

16. Nevertheless, it is undisputed that as a direct result

of Respondent's behavior the autistic student suffered bruising.

No other person grabbed the student's face and held it with the

force necessary to leave bruises. Respondent failed to

understand that such behavior is unacceptable. Respondent

failed to acknowledge that the proper response to the student's

adverse reaction would have been to let the student go.

17. Respondent was not required to feed the autistic

student. Respondent was not required to hold the student so

tightly that bruises were left. Respondent was not preventing

the student from self-injurious behavior.

18. The student in question was not the first autistic

child assigned to Respondent's class. Prior to the incident

complained, of Respondent had many times dealt with students who

were similarly handicapped or limited. Prior to the incident

complained of, Respondent had enjoyed a good reputation for

dealing with a challenging student population. Respondent

offered no credible explanation for why her behavior on the date

in question deviated from acceptable teaching standards.

Teachers in Florida are not allowed to physically harm students.

19. Subsequent to the investigation of the incident

Respondent was suspended from her teaching duties. On May 5,

2009, Richard A. DiPatri, acting as superintendent for the

school district, notified Respondent that he intended to

recommend termination of her employment as a teacher at the

May 12, 2009, meeting of the Brevard County School Board. The

notice further explained the basis for the termination and

stated, in pertinent part:

The reason for my decision is that an

investigation has shown that on or about

February 18, 2009, you physically abused a 3

year old special needs student assigned to

your Pre-K handicapped class at University

Park Elementary School. Specifically, you

attempted to force feed the student by

shoving a spoon down his throat while

holding him by the head and neck. In doing

so you used such force that the student was

gasping for air and spitting up the food and

suffered bruises on his face, neck and back.

20. Respondent timely challenged the proposed termination

and the matter was appropriately forwarded to the Division of

Administrative Hearings for formal proceedings.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

22. Petitioner bears the burden of proof in this cause to

establish by a preponderance of the evidence that Respondent

committed the violations alleged. See McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

23. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942). As reviewed in this matter,

Petitioner has established by a preponderance of the evidence

that Respondent inappropriately held the autistic student in

such a manner that the child was bruised and thereby proved that

there is “just cause” for Petitioner's termination from

employment.

24. Section 1012.33, Florida Statutes, provides, in

pertinent part:

. . . 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: immorality, misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or being convicted

or found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

25. In this case "just cause" includes those items

specifically addressed by the statute but also includes other

conduct that may be denoted by the "not limited to" language of

the statute. See Dietz v. Lee County School Board , 647 So. 2d

217 (Fla. 2nd DCA 1994). Also, “misconduct in office” in the

instant matter must be considered in relation to the injury to

the autistic student.

26. "Misconduct in office" is defined by Florida

Administrative Code Rule 6B-4.009(3) as:

. . . a violation of the Code of Ethics of

the Education Profession as adopted in Rule

6B-1.001, FAC,, and the Principals 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.

27. Florida Administrative Code Rule 6B-1.001, provides:

(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.

28. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession 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.

29. It is concluded that Respondent caused an injury to

the autistic student. Respondent failed to acknowledge that her

conduct in grabbing the student, holding the student with a grip

that injured the face, and attempting to feed the student under

adverse conditions was totally unnecessary and in violation of

policies of conduct for teachers. The sixth-grade students who

witnessed the encounter as well as the aide who was present all

were concerned for the autistic student's well-being. The

incident left a lasting and unfavorable impression on all three.

If Respondent had merely stopped when the student reacted to the

spork, no injury would have occurred.

30. Instead, Respondent stubbornly continued to try to

feed the student. It was unnecessary and shows extremely poor

judgment on Respondent's part. In this case misconduct may

result when the conduct engaged in "speaks for itself," in terms

of its seriousness and its adverse impact on the teacher's

effectiveness. Proof of the conduct, or, as in this case, the

attempt to force feed the student resulting in bruising may be

considered proof of impaired effectiveness. See Purvis v.

Marion County School Board , 766 So. 2d 492 (Fla. 5th DCA 2000).

31. In this state, educators are held to a high standard

of ethical behavior. It is concluded that Respondent’s behavior

violated that standard. Respondent failed to reasonably protect

the autistic student from conditions harmful to learning and

failed to protect his physical health and safety. The hand-

print bruising on the student's face was directly related to

Respondent's conduct. Therefore, Respondent's misconduct

constitutes sufficient grounds for termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board

enter a final order terminating Respondent's employment with the

school district.

DONE AND ENTERED this 28th day of April, 2010 in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 28th day of April, 2010.

COPIES FURNISHED :

Joseph R. Lowicky, Esquire

Glickman, Witters and Marrell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401

Matthew E. Haynes, Esquire

Jeffrey Sirmons, Esquire

Johnson and Haynes, P.A.

The Barrister’s Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

Thomas Johnson, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Fran Jamieson Way

Viera, Florida 32940-6601

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.