11-001592PL Dr. Eric J. Smith, As Commissioner Of Education vs. Jana Lantz Status: Closed Recommended Order on Wednesday, August 31, 2011.

Summary: Petitioner failed to prove an angry exchange between two teachers in the presence of sixth-grade students constituted conduct that seriously reduced the effectiveness of the charged teacher, failed to protect students from conditions harmful to learning.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 1592PL

)

JANA MARIE LANTZ, )

)

Respondent. )

_______________________________ _)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on June 2 1, 2011. The

parties, attorney for Petitioner , witnesses, and co urt reporter

participated by videoconferenc e in Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Charles J. Whitelock

Charles J. Whitelock, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Jana Marie Lantz, pro se

Post Office Box 813853

Hollywood, Florida 33081

STATEMENT OF THE ISSUE

The issue is whether Respondent's educator certificate

should be dis ciplined for a confrontation, in the presence of

students, that she had with a colleague and an administrator .

PRELIMINARY STATEMENT

By Administrative Complaint dated December 13, 2010,

Petitioner alleged that, on March 11, 2010, Respondent displayed

inap propriate conduct and acted unprofessional ly toward a

colleague and a school administrator. The Administrative

Complaint alleges that, when a reading coach assigned to

Respondent's classroom had rearranged the desks, Respondent

became upset and, in the pr esence of students, yelled at the

teacher in a menacing manner. Respondent allegedly stood in the

other reading coach's face, pointed a finger at her, and yelled,

"Go! Be gone! Go away! By the way, you don't do anything!"

When an assistant principal a ppeared and told Respondent to

refrain from further action in front of students, Respondent

allegedly told him, "I will deal with you later."

The Administrative Complaint alleges that this behavior

violates section 1012.795(1)(d), Florida Statutes, which

prohibits gross immorality or an act of moral turpitude; section

1012.795(1)(g), which prohibits personal conduct that seriously

reduces one's effectiveness as an employee of a school board;

and section 1012.795(1)(j), which incorporates the Rules of

Profe ssional Conduct -- specifically, rule 6B - 1.006(3)(a), Florida

Administrative Code, which requires a reasonable effort to

protect a student from conditions harmful to learning or a

student's mental health, physical heal th , or safety; rule

6B - 1.006(3)(e ), whi ch prohibits the intentional exposure of a

student to unnecessary embarrassment or disparagement; and rule

6B - 1.006(5)(d), which prohibits harassment or discriminatory

conduct that unreasonably interferes with an individual's

performance of professional or work responsibilities or with the

orderly processes of education or that creates a hostile,

intimidating, abusive, offensive, or oppressive environment, and

requires that a reasonable effort be made to assure that each

individual is protected from such ha rassment or discrimination.

At the hearing, Petitioner called four witnesses and

offered into evidence 23 exhibits: Petitioner Exhibits 1 - 23.

Respondent called one witness, herself , and offered into

evidence 27 exhibits . The exhibits were admitted, exc ept for

Petitioner Exhibits 6 - 11 and 18 - 23 and Respondent Exhibits 5.f.,

5.g., 5.h., 5.i., 11, 12.a., 12.d., 12.e., 12.f., and 13 - 19.

All exhibits not admitted were proffered. T he Administrative

Law Judge gave Petitioner until July 1, 2011, to file Petit ioner

Exhibits 22 and 23; Petitioner failed to do so , and they are

deemed withdrawn . The Administrative Law Judge gave Respondent

until July 15, 2011, to file an errata sheet to her deposition

transcript; she failed to do so.

The court reporter filed the T ranscript on July 13, 2011 .

Each party filed a P roposed R ecommended O rder by August 16,

2011.

FINDINGS OF FACT

1. Respondent holds Florida educator certificate number

725822. She has been employed as a teacher with the Miami - Dade

County School Board for 17 years. During the 2010 - 11 school

year, Respondent taught sixth - grade science at Thomas Jefferson

Middle School, which is operated by the Miami - Dade County School

Board. At the time of the hearing, Respondent stood at 63

inches and weighed 145 poun ds.

2. Marie Wallace is a reading coach. She has 11 years'

experience in education, including seven years as a reading

coach at Thomas Jefferson Middle School , where she also worked

during the 2010 - 11 school year . At the time of the hearing,

Ms. Wallac e stood at 60 inches and weighed 140 pounds.

3. Patrick Lacouty is an assistant principal at Thomas

Jefferson Middle School. He has been employed in various

professional capacities by the Miami - Dade County School Board

for 15 years. Given his limited r ole in the confrontation

between Respondent and Ms. Wallace , described infra ,

Mr. Lacouty's size is irrelevant.

4. On March 11, 2010, FCAT testing was taking place at

Thomas Jefferson Middle School . Respondent's science classes

were scheduled for first, third, and fifth periods on that day .

T he fifth period class started around 2:00 pm.

5. The administration had selected Respondent's classroom

as a location for FCAT testing. This testing proceeded without

incident at all times that Respondent's class room actually

hosted testing . The confrontation between Respondent and

Ms. Wallace arose after FCAT testing had been completed on March

11.

6. After being informed that her classroom would be used

for FCAT testing during first and third periods on March 11,

Respondent planned alternative locations for these classes.

Respondent took her first - period class to the auditorium and her

smaller second - period class to the science lab. Respondent was

informed that her classroom would be available for her fifth -

period class.

7. Third period immediately preceded lunch. Either during

class or lunch, Respondent chec ked her classroom and found

Ms. Wallace packing up her materials. Respondent asked her if

she was done with the classroom, and Ms. Wallace replied th at

she was and that she would send some students to rearrange the

desks and tables to their normal classroom configu r ation.

8. When Respondent returned to the classroom shortly prior

to the start of fifth period, she was displeased to find that

the desks and tables were not back in their normal places.

Respondent instructed a few waiting students to move the

furniture and told the rest to remain in the hallway.

9. Ms. Wallace returned to the classroom at this time, and

Respondent complained loudly that Ms. Wallace had not rearranged

the room, as she had promised and as she had found it.

According to Ms. Wallace, her behavior at all times during this

incident was exemplary. However, her testimony to this effect

is not credited for the reasons set forth below.

10. Ms. Wallace testified that it was normal for a teacher

not t o rearrange a classroom, essentially admitting that she had

not returned the classroom furniture to its original

configuration . Ms. Wallace's testimony that it is normal for a

teach er not to rearrange a classroom is not credited.

Ms. Wallace appears to have an imperfect understanding as to

customary practices concerning the temporary uses of clas srooms.

Ms. Wallace complained that Respondent had locked up some

supplies, also contra ry to custom, but Respondent explained

persuasively that she had locked up those supplies because she

had purchased them with her own money and , from time to time,

they were removed without authorization by persons unknown to

her.

11. Respondent and Ms. Wallace briefly disagreed over the

location of the furniture in the classroom and whose job it was

to restore the original configuration. The situation was

exacerbated by a mutual feeling of disrespect that each employee

had for the other.

12. In her st atement, Ms. Wallace eagerly described

incident s taking place at unde te rmi ned times prior to the

incident. She clearly ha s determined that Respondent has

behaved unprofessionally for a long time. As is obvious from

what Respondent said to Ms. Wallace, di scussed infra , it is

equally plain that Respondent does not hold Ms. Wallace in high

regard either.

13. S ome tension may have developed between the two

employees given Respondent's role as a steward in the teachers'

union and Ms. Wallace's selection by t he district office to

serve as its professional liaison to the classroom teachers.

14. According to her statement and testimony, Ms. Wallace

recounts only three things said by Respondent during the

confrontation. The first was a directive to her student s to

remain outside the classroom. The second was directed at

Ms. Wallace: "Go! Be gone, go away! By the way, you don't do

anything. You don't have a clue." The third was an invitation

from Respondent to Ms. Wallace to return th e next morning so

Resp ondent cou ld show her how to test students without moving

any classroom furniture.

15. Around the time that Respondent told Ms. Wallace to

leave the classroom , Mr. Lacouty appeared. He told Respondent

not to misbehave in front of the students. Responde nt held out

her hands in front of her and said, "I will deal with you

later," as she returned to her classroom to set it up for her

waiting class. Mr. Lacouty instructed her students to go inside

the classroom and left the area.

16. Ms. Wallace has char acterized Respondent as "ra nting

and raving" and "deranged, " but has only recounted the

statements set forth supra as to the contents of Respondent's

ranting. However, Respondent's directive to her students to

remain outside the classroom and her demand f or Ms. Wallace to

leave the classroom so she could do what Ms. Wallace had agreed

to do and get to work teaching her class were not irrational. A

parenthetical observation followed by an invitation to return

the following day do not suggest the ravings of someone

deranged. Ms. Wallace's characterization of Respondent as

"ranting and raving" and "deranged" is not credited.

17. Ms. Wallace's credibility also suffers in her

description of her feelings during this confrontation. In her

statement, Ms. Walla ce reported, "I felt that my safety along

with the safety of the student who witnesses this entire display

was threatened by [Respondent's] irrational behavior."

Ms. Wallace added: "In addition, as a larger built woman, I

felt that she was using her size . . . to instigate a fight in

the presence of the students." Questioning during the hearing

clarified this statement to mean that Respondent, not

Ms. Wallace, the reading coach, was the larger - built woman. But

as noted supra , the women are of approximat e equal size.

Ms. Wallace's statement about her safety being threatened is

entirely disingenuous. She testified at the hearing that she

was unafraid of Respondent, who does not impress as a woman

capable of inflicting physical injury on another adult.

1 8. The disingenuous statement of Ms. Wallace about her

safety is linked with her statement about her fear for the

students' safety. This statement is also disingenuous. At

hearing, when asked about the reaction of the students to the

exchange between th e two employees, Ms. Wallace testified that

she based her conclusory opinion that the students were

"terrified" on the facts that she could see the faces of the

students sitting along the outside wall of the classroom and

that the students were seated "tim idly."

19. But o ther facts speak more loudly than Ms. Wallace's

conclusory testimony concerning the impact of this confrontation

on the students . First, not a single student testified at the

hearing. Second, a s noted supra , Mr . Lacouty formed his own

o pinion as to the s afety of Respondent's student s when, after

witnessing the incident, he merely instructed them to return to

Respondent's classroom. If Respondent had posed a risk to her

students' safety, Mr. Lacouty would have relieved Respondent of

her duties that afternoon and assigned another teacher to the

class. At hearing, Mr. Lacouty failed to provide any details of

students' reaction to whatever part of this relatively brief

exchange they may have witnessed. Third, the principal

testified that M s. Wallace reported to her only that the

student s were staring, wondering what was going to happen.

Fourth , Respondent testified that instruction proceeded in

normal fashion for this class for the rest of the term. On

these facts, there is no basis to fi nd any impact to the

students who may have witnessed all or part of a frustrated

exchange between two teachers during the week of FCAT testing .

20. Just a few months later, the school principal assigned

Respondent and Ms. Wallace to attend a summer works hop together

in Orlando that summer. This decision suggests that the

confrontation between the two employees was not as significant

as Petitioner alleges.

21. Re spondent and Ms. Wallace are examples of different

kinds of nonresponsive witnesses. Repeat edly, Respondent would

not answer simple que stions; instead, she answered question s

that she wanted to answer. She was evasive and stubborn .

22. Ms. Wallace was nonresponsive in a different way.

Answering the question posed to her, she would then

enthu siastically answer what she anticipated would be the next

several questions. She was less a witness than a prosecutorial

assistant , who seized the opportunity to obtain j ustice for

years of what s he perceived to be Respondent's unprofessional

behavior.

2 3. The credibility of Respondent was further undermined

by repeated inconsistencies in her testimony and statements.

Not to be undone, though, Ms. Wallace's credibility, at least as

to her claim that she never lost her composure, was undermined

by her re peated losses of composure while testifying. Because

Ms. Wallace became agitated in the controlled environment of an

administrative hearing, it is very likely that she also become

agitated during the confrontation itself, especially given her

longstanding list of grievances concerning Respondent.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2003).

25. Section 1012.795(1), Florida Statutes, provide in

rele vant part:

The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

pub lic school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator ce rtificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the c ourt or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that personÓs effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

26. Florida Administrative Code Rule 6B - 1.006(3)(a)

and (e ) provides:

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 unnec essary embarrassment or

disparagement.

27. Florida Administrative Code Rule 6B - 1.006(5)(d)

provides:

Obligation to the profession of education

requires that the individual:

(d) Shall not engage in harassment or

discriminatory conduct which unreasonabl y

interferes with an individualÓs performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable e ffort to assure that each

individual is protected from such harassment

or discrimination.

28. Petitioner must prove the material allegations by

clear and convincing evidence. Dep ' t of Banking and

Fin . v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

29. Petitioner has failed to prove that Respondent is

guilty of gross immorality or an act of moral turpitude. This

issue requires no discussion.

30. Petitioner has failed to prove that Respondent is

guilty of personal conduct that seriously reduces her

effectiveness as a school boa rd employee. The incident was

neither as intense as Ms. Wallace described it, nor was

Ms. Wallace as free of responsibility for causing the inc ident,

or esca lating the exchang e, as Ms. Wallace described it.

Respondent's dismissive response to Mr. Lacouty's one - sided

intervention was insubstantial. As noted supra , Mr. L acouty did

not observe anything that required immediate intervention by the

administration. The insubstantiality of the incident is

reinforced by the principal's assignment of both parties to a

conference in Orlando just a few months later. Also, the fifth -

grade class proceeded through the remainder of the class

material without incident.

31. For largely the same reasons, Petitioner has failed to

prove that whatever the students witnessed of the confrontation

between Respondent and Ms. Wallace , or the dismissive treatment

by Respondent of Mr. Lacouty, rose to the level of a condition

harmful to learning or to the student's mental or physical

health or safety, or that Respondent intentionally exposed her

students to unnecessary embarrassment or disparagement.

Ms. Wallace candidly admitted to the principal, right after the

incident, that the st udents were only staring, wondering what

would happen next -- a version of events far tamer than her later ,

embellished claim that the students were terrified.

32. Lastly, Petitioner failed to prove that Respondent

harassed Ms. Wallace, so as to interfere unreasonably with her

work or the orderly processes of education, or created a

hostile, intimidating, abusive, offensive, or oppressive

environment. The two employees had an unfortunate disagreement,

more caused by Ms. Wallace than Respondent. Their brie f

exchange did not rise to the level of interfering with either

employee's discharge of her professional responsibilities or

creating a hostile, intimidating, abusive, offensive, or

oppressive environment. This allegation does not appear to

apply to Respo ndent's dismissive treatment of Mr. Lacouty, but,

if it did, the facts would not support it.

RECOMMENDATION

It is

RECOMMENDED that Petitioner dismiss the Administrative

Complaint against Respondent.

DONE AND ENTERED this 3 1st day of August , 2011 , in

Tal lahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 1st day of August , 2011 .

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington B uilding, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

L ois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

B ureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Charles T. Whitelock

Charles T. Whitelock, P.A.

300 Southeast Thirteen th Street, Suite E

Fort Lauder dale, Florida 33316

Jana Lantz

Post Office Box 813853

Hollywood, Florida 33081

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 thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.