10-008694TTS Manatee County School Board vs. Karyn Cena Status: Closed Recommended Order on Tuesday, March 1, 2011.

Summary: Physical contact with first grader was unnecessary and sufficient to warrant termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8694

)

KARYN CENA , )

)

Respondent . )

)

RECOMMENDED ORDER

On November 29, 2010, a formal administrative hearing was

conducted by video tele conference in Tallahassee and Sarasota,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Esquire

Manatee County School Board

215 Manatee Avenue, West, Second Floor

Bradenton, Florida 34205

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

T eacher Karyn Cena (Respondent).

PRELIMINARY STATEMENT

By an Administrati ve Complaint dated August 20, 2010, the

Petitioner alleged that on May 11, 2010, the Respondent forcibly

grabbed a student by the arm in a disciplinary incident that was

subsequently determined to be an incident of child abuse.

The Respondent denied the al legations and requested a

formal administrative hearing. The Petitioner forwarded the

dispute to the Division of Administrative Hearings , which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

six witnesses and had Exhibits 1 through 9 admitted into

evidence. The Respondent testified on her own behalf, presented

the testimony of one witness, and had Exhibits 1 through 10

admitted into evidence.

A T ranscript of the hearing was filed on January 3, 2011 .

Both parties filed Proposed Recommended Orders that have been

considered in the preparat ion of this Recommended Order.

FINDINGS OF FACT

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

a first grade teacher employed by the Petitioner to work at

Tillman Elementary School (Tillman) pursuant to a professional

services contract.

2. On May 11, 2010, the Tillman first grade students were

gathered in an auditorium to rehearse for a musical program to

be presented i n celebration of Memorial Day.

3. Th e students had been rehearsing for several days prior

to May 11, 2010. As might be expected, some first grade

students required occasional redirection. Such redirection was

generally communicated by a teacher delivering a "stern look" to

the non - complyin g student. If the correction was not

successful, a non - complying student was directed to go to the

back of the room and sit on a bench that essentially served as a

"time out" area.

4. At one point in the program, the students were

standing, singing, an d holding up their arms, pretending to

waive American flags. The flags had not yet been distributed to

the students. During this portion of the rehearsal on May 11,

2010, the Respondent apparently thought that one of the students

("S . M . ") was playing and not pretending to wave the no n - existent

flag appropriately.

5. The Respondent grabbed the student by the arm and

quickly walked the student to the back of the room , where the

Respondent placed the student forcefully on the time out bench.

The student di d not resist the Respondent in any manner.

6. There was no credible evidence that the Respondent

provided any redirection to the student prior to her physical

interaction with the student.

7. There was no evidence that the student was unable to

comply with a verbal directive delivered by the Re spondent or

any other teacher.

8. There was no evidence that the student was acting out

or posed any threat whatsoever to himself or any other student,

or to the Respondent or any other school employee.

9. Ther e was no evidence that any force or physical

contact was necessary whatsoever to correct the student's

behavior or to direct the student to the time out area.

10. At the hearing, the Respondent was described by

witnesses as appearing "angry" during the in cident. Although

the Respondent denied that she was angry with the child, the

Respondent's interaction with the student was clearly

inappropriate under the circumstances, and it is not

unreasonable to attr ibute her behavior to anger.

11. Observers of the incident testified that the student

appeared to be embarrassed by the incident, sitting with his

head bowed after being placed on the bench. Some teachers

testified that they felt personal embarrassment for the student.

CONCLUSIONS OF LAW

12. 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 . (2010). 1/

13. The Petitioner has the burden of proving by a

preponderance of the evidence the allegat ions set forth in the

Administrative Complaint underlying the proposed termination of

the Respondent's employment. McNeill v. Pinellas Cnty . Sch .

Bd . , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch . Bd . of

Dade Cnty . , 569 So. 2d 883 (Fla. 3d DCA 1990). In this case,

the burden has been met.

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

employed as a first grade teacher through a professional

services contract with the Petitioner. Manatee County School

Board Policy 6.11(12)(c) states as fol lows:

Any employee of the School Board may be

terminated from employment for just cause,

including, but not limited to, immorality,

misconduct in office , gross insubordination,

willful neglect of duty, drunkenness, or

conviction of any crime involving mora l

turpitude, violation of the Policies 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

Fl orida. (Emphasis supplied )

15. 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 individualÓs effectiveness in the

school system.

16. The Principles of Professional Conduct for the

Education Profession in Florida are set forth at Florida

Administrative Code Rule 6B - 1.006 and provides, in relevant

part, as follows:

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(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 studentÓs mental and/

or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

17. The evidence established that by her physical contact

with the student, the Respondent failed to make a reasonable

effort to protect the student from conditions harmful to

physical health or safe ty.

18. The evidence establishes that the Respondent

intentionally exposed the student to unnecessary embarrassment

by her conduct towards the student during the incident.

19. The superintendent of the Manatee County school system

credibly testified during the hearing that the Respondent's

misconduct was sufficient to impair her effectiveness in the

school system because she acted out of anger.

20. The Petitioner asserts that the Respondent violated

s ection 1003.32(1)(j), Florida Statutes, by use of excessive

force during the incident. The cited statute provides, in

relevant part, as follows:

In accordance with this section and within

the framework of the district school boar dÓs

code of student conduct, teachers and other

instructional personnel shall have the

authority to undertake any of the following

actions in managing student behavior and

ensuring the safety of all students in their

classes and school and their opportunit y to

learn in an orderly and disciplined

classroom:

* * *

(j) Use reasonable force, according to

standards adopted by the State Board of

Education, to protect himself or herself or

others from injury.

21. There is no evidence that the State Bo ard of Education

has adopted standards related to the use of reasonable force in

the classroom. However, there was no evidence presented that

there was any need for the Respondent to touch the student or to

apply any force whatsoever during the incident. There was no

evidence that the student posed any threat to himself or to any

other person.

22. The Administrative Complaint alleged that the incident

had been investigated by Child Protective Services (CPS) and the

Manatee County Sheriff's Office and t hat the CPS had completed

the investigation with "verified findings of child abuse." The

allegation was supported only by hearsay evidence that was

insufficient to support a finding of fact; accordingly, no such

findings have been made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Board enter

a f inal o rder, terminating the employment of Karyn Cena .

DONE AND ENTERED this 1st day of March , 2011 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah .state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of March , 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2010 version.

COPIES FURNISHED :

Scott A. Martin, Esquire

Manatee County School Board

215 Manatee Avenue , West, Second Floor

Bradenton, Florida 34205

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Lois Tepper , Acting Ge neral 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

Talla hassee, Florida 32399 - 0400

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 3420 5

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.