10-000629TTS Broward County School Board vs. Alexandra Kralik Status: Closed Recommended Order on Monday, December 6, 2010.

Summary: Evidence consisting primarily of testimony of a 5-year-old alleged victim and 6-year-old classmate is insufficient to prove that kindergarten teacher used physical force to place crying/disruptive child in chair for timeout.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0629

)

ALEXANDRA KRALIK , )

)

Respondent . )

)

RECOMMENDED ORDER

Administrative Law Judge Eleanor M. Hunter held a final

hearing in this case by video teleconference between sites in

Lauderdale Lakes and Tallahassee, on June 1 and 2, 2010, and

August 18, 2010.

APPEARENCES

For Petitioner: Steve Rossi, Esquire

Travis Stock, Esquire

Law Offices of Steve Rossi, P.A.

533 Northeast 3rd Avenue, Suite 2

Fort Lauderdale, Florida 33301

For Respondent: Mark A. Emanuele, Esquire

Greg McDermott, Esquire

Panza, Maurer & Maynard, P.A.

Bank of America Building, Third F loor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

PRELIMINARY STATEMENT

In an Administrative Complaint dated January 8, 2010, the

Superintendent of Broward County Schools gave notice of his

intent to recommend that the Broward County School Board

terminate the employment of a teacher, Alexandra Kralik. In a

letter dated January 25, 2010, Kralik timely requested an

administrative hearing. The request was referred to the

Division of Administrative Hearings (DOAH) on February 9, 2010.

The case was assigned to Administrative Law Judge John G. Van

Laningham who set the case for hearing on April 2, 2010. On

March 8, 2010, the parties filed a Joint Motion to Reset Final

Hearing and the case was re - sche duled for June 1, 2010.

During the course of the proceedings, Judge Van Laningham

ruled on a number of motions as follows: (1) denied the School

Board's Emergency Motion for Protective Order that sought to

exclude Kralik from the depositions of three 5 - yea r - old

children; (2) denied without prejudice the School Board's

Emergency Motion to File Return of Service Under Seal; (3)

denied Kralik's Motion to Appoint a Special Master To Rule on a

Motion in Limine; and (4) denied without prejudice Kralik's

Motion in Limine seeking to exclude information on past

allegations, investigations, and discipline.

The case was transferred to Administrative Law Judge

Patricia M. Hart in the regular course of DOAH procedures. On

May 26, 2010, the School Board filed an Emergenc y Motion for

Protective Order seeking to have Kralik observe the testimony of

one child by closed circuit television rather than have her

present in the hearing room. Judge Hart determined that an

evidentiary hearing on the Motion was necessary and should be

held immediately before the final hearing commenced.

When Judge Hart became ill, the case was transferred to the

undersigned to conduct the final hearing. When the final

hearing began on June 1, 2010, the School Board presented

evidence in support of its Motion for Protective Order. That

evidence included an affidavit signed by the mother of the

alleged child victim (marked as Motion Hearing Exhibit A); the

mother's testimony , which contradicted some of the statements in

the affidavit; 1 and the testim ony of the alleged victim, Q.P.

Following the evidentiary hearing , the Emergency Motion for

Protective Order was denied.

The hearing was not concluded on June 1, 2010, and was

continued on June 2, 2010, but again it was not concluded . The

case was scheduled to continue on June 30, 2010 . A fter the

parties filed a Joint Motion for Continuance , th e case was re -

scheduled for and completed on August 18, 2010.

At the hearing, the School Board presented the testimony of

Q.P. , Q.P.'s m other, D.L., Principa l Davida Johnson of A. C.

Perry Elementary School , Assistant Principal Laferne McLean -

Cross , Curriculum Specialist Kristi Burdick , Investigator Edna

Pollack , and Investigator Craig Kowalski . Petitioner's Exhibits

1, 2, 4, 5, 9, 16, 17, 19, 21A, 25 - 27, 29 - 32, and 34 - 38 were

received in evidence either during or after the hearing.

Respondent testified on her own behalf and offered no exhibits.

The Transcript of the proceedings held in June was filed

July 12, 2010 . Proposed R ecommended O rders were filed

October 11, 2010. T hrough an apparent oversight, the Transcript

of the proceedings held on August 18, 2010, was not filed at

DOAH until October 29, 2010.

On August 17, 2010, Respondent's Motion to Exclude

Deposition Transcripts of Minor Witnesses and Re spondent's

Motion to Exclude William's Rule Evidence were filed .

Petitioner's Responses to the motions were filed August 24,

2010, and additional arguments were included in the proposed

recommended orders . Unless otherwise indicated, all references

to Fl orida Statutes in this Order are to the 2010 publication.

The Motion to Exclude Deposition Transcripts of Minor

Witnesses is granted, except for those prior statements by Q.P.

that are consistent with her testimony that was challenged on

cross - examination as a recent fabrication. 2 The Motion to

Exclude William's Rule Evidence is denied. 3

FINDINGS OF FACT

1. Alexandra Kralik ("Respondent" or "Kralik") has taught

in schools operated by the Broward County School Board for 2 2

ye ars. During the 2009 - 2010 school year, she was assigned to

teach kindergarten at A. C. Perry Elementary School where she

had taught since the 2004 - 2005 school year.

2. In September 2009, Q.P., a five - year - old , started

kindergarten at A. C. Perry in a cla ss taught by a different

teacher. After a week of testing, Q.P. was re - assigned to

Kralik's class when students were grouped by ability.

3 . Q.P. was having problems adjusting to kindergarten and

was crying for her mother every day during the first weeks of

school.

4 . Kralik tried a number of strategies to get Q.P. to stop

crying. She tried having her mother sit with her, but Q.P. ran

out the door after her mother when she tried to leave. Kralik

had the reading specialist sit with Q.P. , but that did not help.

5 . One day d uring Q.P.'s second week in her class , Kralik

put what she called a " q ueen - of - the - no - crier s " crown on Q.P.'s

head , but Q.P. still did not stop crying .

6. At 8:15 a.m. that day , Kralik took her class to music.

When she picked them up at 8:45 a . m . , the students were supposed

to return to the classroom and sit on the carpet for a lesson.

7. Kralik said Q.P. did not sit on the carpet , but instead

sat in a chair at her table. Kralik testified in her deposition

t hat "I said okay, as long as she was not crying, it was fine.

She could sit at her table, no problem."

8 . Q.P. kept crying and got louder , disrupting the class

while Kralik tried to teach . Kralik said she told the children

to ignore Q.P., but the other children were calling her "stupid"

and "crybaby." Kralik swore that she did not touch Q.P.

9 . Kralik called the office twice to get a staff person to

come assist her with Q.P. S he found their slow response

frustrating. It took at least thirty minutes before a computer

specialist came and removed Q.P. from the class.

10 . In the meantime , Kralik said Q.P. got angry about

something , took the crown off , and tore it up , as she was

getting more upset and crying loud er . Kralik denied taking the

crown away from Q.P. In notes of Kralik's statement the day

after the incident, Kralik is reported to have asked Q.P. for

the crown and then tried to take it from Q.P., which caused Q.P.

to start screaming.

11 . Q.P. returned to her cla ss at approximately 1:15 p.m. ,

the same day . According to Kralik, Q.P. was no longer crying ,

but she was mad about something. Kralik testified that she did

not know why , but for no apparent reason, Q.P. said , "I'm going

to tell my mom." Kralik said she stayed away from Q.P. , and did

not interact with her because she wanted to avoid having any

more disciplinary issues like the ones she has had in the past .

1 2 . Q.P. testified that sometime that same day, Kralik

called her "cry baby" and "stupid." In notes taken by one of

the people who investigated the incident, Kralik was quoted as

having said that Q.P. was crying when she returned that

afternoon and that Kralik said to Q.P. that it was stupid for

her to sit there crying rather than cutting up m agazines and

having fun. Q.P. demonstrated how she said Kralik hit her arm

and said it hurt her. She also testified that Kralik pushed her

on the ground, but later said it was an accident.

13 . After a break in the hearing for lunch, Q.P. was

cross - exami ned . She repeated her earlier testimony and said

"[S]he pushed me on the ground . . . . " She called me 'cry

baby.' She called me 'stupid.' Q.P. also testified that she

was mad when Kralik took the crown away from her. That

information was elicited by Kralik's counsel on cross -

examination as presumably an explanation for Q.P.'s claims,

although Kralik denied taking the crown away from her.

14. F or the first time, on cross - examination, Q.P. added ,

"She pulled me -- she pulled me and put me at the back tab le."

Q.P. said she was put at the back table because she was crying.

Q.P. also testified that during lunch, despite the rule of

sequestration having been invoked and explained to her mother,

her mother talked to her about Kralik's pulling her arm an d

sea ting her at the back table as if to put her in timeout.

Kralik denied having a timeout in her room, although timeout is

listed as a kindergarten consequence in the A. C. Perry School

Guidelines for Behavior. Kralik' s denial is not credible .

Notes on her interview the day after reflected that Kralik said

she used the students' seats for timeout.

15 . On redirect, Q.P. said while they were at lunch, her

Mother only told her "talk to that lady" (meaning the

undersigned) but not anything else. Her mother wa s questioned,

in an evidentiary hearing on a motion to strike Q.P.'s

testimony , and denied having said anything to her during lunch

other than "talk to that lady." Q.P.'s references to being

pushed to sit down at a table appear in her deposition and in

no tes taken by the a ssistant p rincipal on September 3, 2009.

The claims of recent fabrication of her testimony and of her

incompetence as a witness are , therefore, rejected. 4

1 6 . D.L. is six years old and he was also in Kralik's

kindergarten class. He remembers Kralik calling Q.P. a "big

baby." According to D.L., Kralik pulled Q.P.'s arm but not

hard. He said it was the other children , not Kralik , who call ed

Q.P. "cry baby." D.L. said Q.P. was placed at the end of the

line an d got no treats because of her crying.

17. D.L. remembered that Kralik gave Q.P. a crown, but

believed it was for her birthday. D.L. did not remember

Kralik's taking the crown away from Q. P.

18 . O n the afternoon of September 2, 2009, Q.P.'s mother

complained to Davida Johnson, the p rincipal at A. C. Perry, that

Kralik had hit Q.P. and had called her derogatory names.

19 . Johnson assigned Assistant Principal Laferne McLean -

Cross and Curriculum Specialist Kristi Burd ick to investigate

and determine if there was any validity to the complaint. After

talking to Q.P, her mother, several students in the class, and

Kralik, McLean - Cross and Burdick advised Johnson that there was

some corroboration of Q.P.'s complaint of exc essive physical

contact that amounted to physical force . Physical force is only

permitted if there is a medical emergency, or if students have

placed themselves or others in imminent danger .

20. Kralik was ordered removed from A. C. Perry on

September 4, 2009 , and Johnson submitted a Personnel

Investigation Request to the School Board's Professional

Standards and Special Investigative Unit (SIU). The request w as

prompted not only by the t he information Johnson received from

McLean - Cross and Burdick , but also based on Johnson's history of

disciplinary actions against Kralik for similar acts as the one s

alleged by Q.P.

Johnson's Prior Incidents with Kralik

21 . On April 6, 2006, Johnson issued Kralik a written

reprimand because "you put your hands on a student in a rough

manner." Kralik was accused of pulling a student out of line

and pushing her. Kralik claimed to have only said something to

the student , not touched the student , who was in another

teacher's class, and only because she overheard the student

threatening another student .

22 . On December 4, 2007, Johnson issued a Written

Reprimand Regarding Insubordination, citing the prior written

reprimand after "a parent of another child in your class room

informed me this year that you 'grabbed' her daughter's arm too

tight [ly] causing her discomfort and you held her behind the

neck forcing her to look at something on the floor." Kralik

claimed to have only touched the student on the shoulder and

told her to look at the floor because the child had c olored on

the floor with her crayons.

23 . On March 2, 2009, and March 4, 2009, Johnson was

notified by the Execptional Student Education specialist that,

while she was working with children in Kralik's classroom, she

observed Kralik "inappropriately put [ her] hands on student[s] "

by grabbing and pulling them . Kralik testified that she did not

recall that there were two separate reports, but only one . In

that incident, Kralik said she was separating students who were

fighting. On March 16, 2009, Johnson recommended that Kralik be

suspended for three days without pay. The suspension did not go

into effect and was pending when the issues arose with Q. P.

24 . On March 23, 2009, Johnson referred Kralik to the

Employee Assistance Program.

SIU , PSC , and the Superintendent's Action s

25 . A f t er receiving Johnson's request, the SIU conducted

its own investigation and forwarded its report to the

Professional Standards Committee (PSC). T he PSC held a pre -

disciplinary meeting and , on December 2, 2009, rec ommended

terminating Kralik's employment. The Superintend e nt a greed to

make the same recommend ation to the School Board and filed the

Administrative Complaint in this case . The charges against

Kralik are that her conduct with Q.P. constitutes misconduct in

office , 5 immorality , 6 and incapacity . 7

26 . In addition to the incidents at A. C. Perry that

Johnson had considered, the SIU, PSC, and later, the

Superintendent , had access to and considered Kralik's entire

disciplinary history.

Incide nts Prior to Employment at A. C. Perry

2 7. O n March 11, 1998, at Dania Elementary School, Kralik

was charged with "inappropriate discipline of a student" when a

child in her class received lacerations and bruises when his

face hit a counter. Kralik said the child moved too quickly and

hit his own face on the counter. She entered into a

Disciplinary Action & General Release Agreement. The Agreement

provided, in relevant part, that Kralik was suspended without

pay from April 24, 1998 through June 30 , 1999, that the

suspension will remain on her disciplinary record, and that "an

official written reprimand will be placed in [Kralik's] file

regarding the charges contained in the Administrative

Complaint. "

28 . While a teacher at Bethune Elementary, on O ctober 24,

2002, Kralik was alleged to have "grabbed [ a student's] arms,

picked her up and shoved her to the concrete sidewalk to make

her sit down." Kralik said the child got out of clas s early ,

came to the bus loop, and got upset when Kralik told her sh e

could not leave early. Kralik and the School Board entered into

a Disciplinary Action & General Release Agreement that (1) she

would be suspended without pay for twenty days; (2) that the

Agreement would constitute a written reprimand; (3) "that this

is 'last chance' agreement and that any further disciplinary

proceedings can and will result in termination." Kralik was

also placed on probation for two years.

ULTIMATE FINDINGS OF FACT

29 . Kralik's denial that she was culpable in any of the

past inciden ts that resulted in discipline is not credible.

Kralik's denial that she touched Q.P. is not credible given the

testimony of Q.P. and D.L.

30 . The evidence is, however, insufficient to determine

exactly what Kralik did to Q.P. other than calling her some kind

of "baby," as described in Findings of Fact 7 through 17 . T hat

factual evidence is also insufficient to prove that her touching

Q.P. constituted physical force that was rough, hard , or

inappropriate.

31. Based on the fa ilure of the School Board's proof to

establish the truth of the mother's allegations, it is

determined the refore, that Kralik is not guilty of the offense s

of misconduct in office, immorality , and incapacity as charged

in the Administrative Complaint.

CONCLUSIONS OF LAW

32 . The Division of Administrative Hearings has subject

matter jurisdiction over this case and personal jurisdiction

over the parties to this proceeding. §§ 120.569 and 120.57(1),

Fla. Stat.

33 . The School Board seeks to terminate Res pondent's

employment. In order to do so, the School Board must prove by a

preponderance of the evidence that Respondent committed the

violations as charged in the Administrative Complaint, and that

the proposed punishment is appropriate. McNeill v. Pinel las

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

School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Dade County , 569 So. 2d 883

(Fla. 3d DCA 1990).

34 . The preponderance of the evidence standa rd requires

proof by "the greater weight of the evidence " or evidence that

"more likely than not" tends to prove a certain proposition.

Black's Law Dictionary 1201 (7th ed. 1999). See Gross v. Lyons ,

763 So. 2d 276, 289 n.1 (Fla. 2000) (relying on American Tobacco

Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) quoting

Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

35. The charges in the Administrative Complaint are the

only ones that are properly under consideration as grounds for

termination. See Miami - Dade School Board v. Dolz , Case No. 09 -

4029, Fla. Div. Admin. Hrg. (R.O. 10/23/09; F.O. 2/18/10);

citing Lusskin v. Agency for Health Care Administration , 731 So.

2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of

Insurance , 6 85 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v.

Department of Business and Professional Regulation , 625 So. 2d

1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992); and Willner v. Depar tment of Professional Regulation , 563

So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295

(Fla. 1991).

36. Whether Kralik should be terminated depends on the

specific allegations that, on September 2, 2009, she called Q.P.

"stupid" or "crybaby , " and pushed, pulled, and/or grabbed her in

an inappropriate manner. The violations charged in the

Administrative Complaint relate only to that one incident.

Reference is made to "having been counseled and disciplined in

the past," but a pattern of behavior was not charged or proven

as the basis for termination . 8

37. The charges against Kralik necessarily fail, as a

matter of fact. Due to this dispositive failure of proof, it is

not necessary to render additional conclusions of law. `

RECOMMENDA TION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board

enter a final order dismissing the c harges brought against

Kralik in this proceeding .

DONE AND ENTERED this 6th day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December , 2010 .

ENDNOTES

1. T he affidavit stated that Q.P. started having nightmares

after her deposition was taken with Kralik present in the room.

Q.P.'s Mother testified that Q.P. was having nightmares before

the day of the deposition.

2. See § 90.801(2)(b) ; Gardner v. State , 480 So.2d 91, 93 (Fla.

1985) ; Jackson v. State , 498 So.2d 906, 909 (Fla. 1986) . See

also Wise v. State , 546 S o. 2d 1068; 1989 Fla. App. LEXIS 3119

(R.O. May 31, 1989) ([A six - year - old 's ,] prior consistent

statements [to h er mother] were erroneously presented before

defense counsel presented any evidence from which the jury could

infer that the appellant was conte nding that [the child] was

improperly influenced, had a motive to falsely accuse the

appellant, or had recently fabricated any part of her expected

testimony.); and Bianchi v. State , 528 So. 2d 1309 (Fla. 2nd DCA

1988) ( It would appear that Section 90.801( 2)(b) envisions the

cross - examiner attempting to show improper influence, motive, or

recent fabrication on the part of the testifying witness. Then,

after that occurs, the prior consistent statement could be

introduced through that witness on redirect exa mination or a

subsequent witness to show the consistency of the testifying

witnesses' statements. C. Ehrhardt, Florida Evidence § 611.2

(2d ed. 1984)).

3. Respondent relied on Section 90.401 (defining relevant

evidence as tending to prove or disprove a material fact);

90.403 (excluding relevant evidence if the danger of unfair

prejudice substantially outweighs probative value); and 90.404,

Florida Statutes , and 120.57(1)(d), Florida S tatutes ,

([S] similar fact evidence of other violations, wrongs, or acts

is admissible when relevant to prove a material fact in issue,

such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident, but it

is inadmissible when the evidence is relevant solely to prove

ba d character or propensity. ) Respondent conceded that "just

cause" for discipline includes consideration of progressive

discipline.

4. The ore tenus Motions to Strike for violation of the r ule of

s equestration and due to the incompetenc e of the witness w ere

denied. ( If, in fact , the witness is unable to testify because

of age, then Florida Rule of Civil Procedure 1.330(3) would

allow all of her deposition testimony to be received in

evidence, which Respondent also has opposed.) Cf. Department of

Health and Rehabilitative Services v. D. H. , Case No. 91 - 1392,

1991 Fla. Div. Adm. Hear. LEXIS 6654 (R.O. May 21, 1991)

(Petitioner called S.J., who is three years old. After brief

examination by the Hearing Officer, S.J. was determined not

competent to testify due to age.) See also Charles W. Ehrhardt,

Florida Evidence § 601.1 (20 10 ed.) In Florida, whether a child

witness is competent to testify is based on "his or her

intelligence, rather than his or her age and in addition,

whether the child possesses a sen se of obligation to tell the

truth." Lloyd v. State , 524 So. 2d 396, 400 (Fla. 1988) ; Bell

v. State , 93 So. 2d 575, 577 (Fla. 1957) . Q.P.'s ability to

testify was limited only by her five - year - old vo cabular y , and

her understandable impatience with the process , having been

asked some of the same questions during a motion hearing, on

direct examination , and on cross - examination. She was

intelligent enough to notice that the attorneys were able to

stop talking when they announced the end of their questioning,

so she also told the undersigned, "I don't have no more

questions."

5. Florida Administrative Code Rule 6B - 4.009(3) provides that:

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.

6. Florida Administrative Code Rule 6B - 4.009(2) is as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

indiv idual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

7. Incapacity in Florida Administrative Code Rule 6B -

4.009(1)(b)(1) has one or more of the following characteristics:

(b ) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

8. Compare , e.g. , Polk County School Board v. Lindemann , Case

No. 01 - 2508, 2001 Fla. Div. Adm. Hear. LEXIS 3154 (R.O.

October 26, 2001).

COPIES FURNISHED :

Mr. James F. Notter, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

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 St reet

Tallahassee, Florida 32399 - 0400

Mark A. Emanuele, Esquire

Panza, Maurer & Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

Steve Rossi, Esquire

Travis Stock, Esquire

Law Offices of Steve Rossi, P.A.

533 Northeast 3rd Avenue, Suite 2

Fort Lauderdale, Florida 33301

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.