09-001972TTS Manatee County School Board vs. Alaine S. Chevalier Status: Closed Recommended Order on Tuesday, November 17, 2009.

Summary: Termination of employment is warranted for slapping student after a prior reprimand for excessive use of corporal punishment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-1972

)

ALAINE S. CHEVALIER, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 4 and 5, 2009, a formal administrative hearing

was conducted in Bradenton, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert J. Shapiro, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9069

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

The issue in this case is whether the Manatee County School

Board (Petitioner) has just cause to terminate the employment of

Alaine S. Chevalier (Respondent).

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 27, 2009, the

Petitioner alleged that on February 6, 2009, the Respondent

slapped the upper leg of a female student in class for not

sitting "lady-like." The complaint further alleged that, on

January 8, 2009, a "severe reprimand" had been issued to the

Respondent for an incident of "excessive force and unauthorized

corporal punishment" towards a student on October 31, 2008.

The Respondent denied the allegations and requested a

formal administrative hearing. The Petitioner forwarded the

dispute to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

On July 24, 2009, the parties filed a Joint Pre-hearing

Stipulation, including stipulated facts that have been

incorporated herein as necessary.

At the hearing, the Petitioner presented the live testimony

of eight witnesses, the deposition testimony of two witnesses,

and had Exhibits 1 through 6 and 8 through 15 admitted into

evidence. The Respondent testified on her own behalf, presented

the testimony of four witnesses, and had Exhibits 1 through 5

admitted into evidence.

A Transcript of the hearing was electronically filed on

September 9, 2009. Prior to the deadline for filing proposed

orders, counsel for the Petitioner became unavailable. On

September 17, 2009, Notices of Appearance on behalf of the

Petitioner were filed by substitute counsel, as well as a Motion

for Extension of Time seeking to extend the deadline for filing

proposed orders. On September 18, 2009, the motion was granted.

On October 5, 2009, both parties filed Proposed Recommended

Orders that have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Petitioner has employed the Respondent as a teacher

since 1995. During the 2008-2009 school year, the Respondent

was assigned to teach math at Buffalo Creek Middle School

(BCMS).

2. The principal at BCMS was Scott Cooper. During the

fall of 2008, Mr. Cooper became concerned about the Respondent's

ability to control her classroom and provide appropriate

instruction to her students based on negative comments from

parents and other staff members about the Respondent's ability

to manage the classroom.

3. After informally observing the situation in the

Respondent's classroom, Mr. Cooper obtained a math specialist

employed by the Manatee County School District to provide

instructional assistance to the Respondent.

4. Despite the assistance, Mr. Cooper remained

dissatisfied with the Respondent's performance. In

October 2008, Mr. Cooper met with Meghan Murray, the chair of

the BCMS math department, and Sharon Scarbrough, his assistant

principal, to discuss his concerns about the Respondent's

performance.

5. During the meeting, Mr. Cooper decided to merge the

classes taught by the Respondent with those taught by Ms.

Murray. The intent of the merge was to permit Ms. Murray to

handle the class instruction while the Respondent provided

support. Mr. Cooper also believed the merge would allow the

Respondent to benefit from observing Ms. Murray's teaching

methods.

6. Mr. Cooper met with the Respondent and Ms. Murray and

discussed the merge. The Respondent was amenable to the idea of

"team teaching," and, shortly thereafter, the two classes were

combined.

7. The original class rosters remained separate with each

student listed on the roster of his or her original teacher, but

the instruction took place in a joint classroom, generally led

by Ms. Murray.

8. Although the classroom environment improved when both

teachers were present, the Respondent still had difficulty

controlling the large group of students and providing

instruction in Ms. Murray's absence.

9. On January 8, 2009, Mr. Cooper issued a severe written

reprimand for use of "excessive force" against a student on

October 31, 2008. The reprimand advised that recurrence could

subject the Respondent to additional disciplinary action,

including termination of employment. Although the Respondent

denied the incident underlying the reprimand, clearly, the

Respondent was made aware that such physical contact with a

student was unacceptable and could result in further

disciplinary action.

10. The reprimand also directed the Respondent to contact

"Peggy Wolfe" for "classroom assistance" and returned the

Respondent to "documentation" apparently related to continuing

concerns about the Respondent's job performance. Returning a

teacher to "documentation" permits school officials to formally

observe and evaluate a teacher's job performance.

11. Mr. Cooper was apparently not the only person

concerned about the Respondent's ability to provide appropriate

instruction to her students. On or about January 30, 2009,

Mr. Cooper met with the mother of S.T., a student assigned to

the Respondent's roster, who believed that her child was still

not learning from the Respondent, even after the Respondent's

students were combined with Ms. Murray's class.

12. A few days after S.T.'s mother met with Mr. Cooper,

the Respondent admonished S.T. for talking in class and told the

student that she would report the student's behavior directly to

the mother "who just came in here and yelled at me."

13. On February 6, 2009, Ms. Murray was absent from the

combined classroom. The students were unruly, and the

Respondent was unable to manage them. S.T. sat at a table

talking to classmates. The Respondent decided to separate S.T.

from her friends and directed S.T. to move to another table

nearby. Thereafter, the Respondent continued her unsuccessful

attempts to maintain control over the classroom, while

circulating through the room to assist students in completing

tasks.

14. As the Respondent later passed the table where S.T.

sat, she observed S.T. sitting in a slanted position with her

legs together and apparently extended from under the table. The

Respondent slapped S.T.'s left leg just above the knee and

directed her to "sit like a lady." The Respondent then picked

up S.T.'s jacket and heavy backpack from the floor and dropped

them on the table where S.T. was sitting.

15. At the hearing, the student testified that the slap

caused pain described as similar to a "pinch." After class was

dismissed, S.T. went into a restroom to lower her jeans and look

at her leg and saw a red "puffy" mark at the location of the

slap.

16. S.T. and two friends who observed the incident then

went to the office of S.T.'s guidance counselor. The counselor

directed the student's friends to return to class and not to

discuss the incident with others. The counselor then reported

the incident to Mr. Cooper.

17. Mr. Cooper immediately came to the counselor's office

where S.T. told Mr. Cooper what had occurred. Mr. Cooper asked

the student to write a statement and then directed her to the

school clinic where a nurse was present.

18. At about 11:30 a.m., the school nurse observed the

location of the slap and noted a red area approximately four

inches by five inches on the student's left leg just above the

knee. The nurse directed the student to return to class and

reported her observations to Mr. Cooper.

19. Mr. Cooper reported the incident to an investigator

for the Petitioner’s Office of Professional Standards, who

directed that photographs of the student's leg be obtained. The

student returned to the clinic. At about 12:30 p.m., the school

nurse photographed the mark, which by that time had faded to a

light pink color.

20. On February 6, 2009, the Respondent was placed on paid

administrative leave.

21. At the hearing, Mr. Cooper testified that he believed

the fact that the slap through S.T.'s jeans left a mark on the

student's leg indicated that the force used was excessive and

that the Respondent's effectiveness as an employee of the school

was impaired by the incident. He also expressed concern about

her behavior in light of the severe reprimand that had been

issued a few weeks earlier. Mr. Cooper's testimony has been

fully credited.

22. Tim McGonegal, the superintendent of the Manatee

County School District, testified at the hearing that the

Petitioner's policies prohibit corporal punishment of any kind,

including spanking. He testified that the fact that the

February 6, 2009, incident occurred within a few weeks of a

reprimand for corporal punishment indicated that the behavior

would be repeated and that further progressive discipline would

be unproductive. Mr. McGonegal also testified that the

Respondent's effectiveness in the classroom was impaired by the

incident and that he had no confidence in her ability to manage

and maintain control over the students in her classroom.

Mr. McGonegal's testimony has been fully credited.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

24. The Petitioner has the burden of proving by a

preponderance of the evidence the allegations underlying the

proposed termination of the Respondent's employment as set forth

in the Administrative Complaint. McNeill v. Pinellas County

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

Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990). The

burden has been met.

25. At all times material to this case, the Respondent was

employed by the Petitioner as a member of the instructional

staff. Subsection 1012.33(1)(a), Florida Statutes (2008),

states that persons so employed may be dismissed during the term

of the contract only for just cause and provides as follows:

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.

26. Subsection 6.11(1) of the Policies and Procedures

Manual of the School District of Manatee County provides as

follows:

Suspension or Termination of Employees:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment,

for just cause including, but not limited

to, immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policy and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

statute, violation of the Code of Ethics and

the Principles of Professional Conduct of

the Education Profession in Florida.

27. Florida Administrative Code Rule 6B-4.009 provides the

following relevant definitions:

(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.

28. The Code of Ethics of the Education Profession in

Florida, set forth at Florida Administrative Code Rule 6B-1.001,

provides as follows:

6B-1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one’s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

29. The Principles of Professional Conduct for the

Education Profession in Florida are set forth at Florida

Administrative Code Rule 6B-1.006 and provide, in relevant part,

as follows:

6B-1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(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.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

30. The evidence establishes that in slapping a student on

February 6, 2009, the Respondent committed misconduct in office

by violating the Principles of Professional Conduct for the

Education Profession in Florida. The Respondent failed to make

a reasonable effort to protect the student from conditions

harmful to learning and the student’s health and exposed the

student to unnecessary embarrassment or disparagement. The

evidence establishes that the misconduct is sufficiently serious

to impair the Respondent's effectiveness in the school system.

31. Additionally, the Respondent violated the Petitioner's

policy prohibiting corporal punishment, despite having been

reprimanded on such basis on January 8, 2009. The violation is

sufficient under Subsection 6.11(1) of the Policies and

Procedures Manual of the School District of Manatee County to

warrant termination of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Board

enter a final order, terminating the employment of Alaine S.

Chevalier.

DONE AND ENTERED this 17th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 17th day of November, 2009.

COPIES FURNISHED :

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Robert J. Shapiro, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9069

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

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206-9069

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.