11-006380PL Gerard Robinson, As Commissioner Of Education vs. Deidra Juniper Status: Closed Recommended Order on Friday, August 31, 2012.

Summary: Petitioner proved that Respondent allowed "birthday licks" to be given to a school volunteer with educational exceptionalities. Remainder of violations not proven. Recommend probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARD ROBINSON, )

AS COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 6380PL

)

DEIDRA JUNIPER , )

)

Respondent . )

)

RECOMMENDED ORDER

A duly - not iced hearing was conducted by video teleconference

with sites in Pensacola and Tallahassee On May 24 and 25, 2012,

and concluded on June 18, 2012 , in Pensacola, Florida, before

Administrative Law Judge Lisa Shearer Nelson of the Division of

Adm inistrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

DeFuniak Springs, Florida 32435

For Respondent: Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 East Vi rginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 1012.795(1)(d) or (g), Florida Statutes (2009) 1/ and/or

Florida Administrative Code Rule 6B - 1.006(3)(a) or (e), and if

so, what penalty should be imposed?

PRELIMINARY STATEMENT

On September 27, 2011, Gerard Robinson as Commissioner of

Education ("Petitioner" or "the Commissioner" ), filed a four -

count Administrative Complaint against Respondent, Deidra Juniper

("Respondent" or "Ms. Juniper"), alleging that she violated

section 1012.795(1)(d)and (g), and rule 6B - 1.006(3)(a) and (e),

based on conduct occurring during the 2009 - 2010 and 2010 - 2011

school years. On October 13 , 2011, Respondent filed an E lection

of R ights form dis puting the allegations in the Administrative

Complaint and requesting an administrative hearing pursuant to

section 120.57(1), Florida Statutes. On December 14, 2011, the

case was referred to the Division of Administrative Hearings for

the assignment of a n Administrative Law Judge.

The case was originally scheduled for hearing February 22,

2012, in Pensacola, Florida. At the request of Respondent, the

case was continued and rescheduled for April 5 - 6, 2012. At

Petitioner's request, the hearing was again r escheduled for

May 24 - 25, 2012, by video teleconference.

The hearing began as scheduled. However, it could not be

completed within the time allotted, and was reconvened and

completed in Pensacola on June 18, 2012.

Prior to hearing, the parties submitted a Joint Pre - Hearing

Stipulation that contained a limited number of stipulated facts

that have been incorporated into the findings of fact below. At

hearing, Petitioner presented the testimony of S.J., D.L., M.H.,

K.L., T.R., G.H., D.R., K.J., M.W. , 2 / Meg an Brees, Deborah Parker,

Sharee Cagle, Alan Scott, Judy LaBounty, T e .R., Michelle Cox, and

Troy Brown. Petitioner's Exhibits numbered 1 - 27 were admitted

into evidence. Respondent testified on her own behalf and

presented the testimony of K.S., Linda Mas hon, Uadona Lobley,

Theresa Delsignore, Holli Herron, Rebecca Hines, Je nnifer Kemp,

Ann Choat, D.V. , Nancy Reese, Dr. Randi McDonald, and Rose Mary

McGowen. Respondent's Exhibits numbered 1A, 1B, and 2 - 9 were

admitted into evidence. The four - volume trans cript was filed on

July 5, 2012. The parties were given until July 27, 2012, to

file their proposed recommended orders. Both parties have filed

post - hearing submissions that have been carefully considered in

the preparation of this Recommended Order.

F INDING S OF FACT

1. Petitioner is charged with the certification and

regulation of professional educators in the state of Florida,

pursuant to the provisions of section 20.15 and the Florida K - 20

Education Code, chapters 1000 - 1013, Florida Statutes (200 9 ).

2. Respondent , Deidra Juniper ("Respondent" or

"Ms. Juniper"), holds Florida Educator's Certificate 317540,

covering the area of elementary education, which is valid through

June 30, 2016.

3 . At all times material to the allegations in the

Administrati ve Complaint, Respondent was employed as an

elementary school teacher at Yniestra Elementary School

("Yniestra") in the Escambia County School District. Yniestra

was a Title I school. Since the events in this case, Yniestra

has closed.

4. During the 200 9 - 2010 school year, Respondent taught

fifth grade. She had taught at Yniestra since 2000.

5. At the beginning of the 2009 - 2010 school year, Yniestra

received a new principal, Dr. Sharee Cagle, following the

retirement of the former principal, Nancy Reese . Dr. Cagle was

also the principal for Hallmark Elementary School, serving in

that capacity at both schools simultaneously.

6. Shortly before the beginning of the school year,

Respondent's adult son died unexpectedly. Dr. Cagle, along with

other school district administrators, attended the wake for

Respondent's son to offer their condolences. Although Dr. Cagle

had attended a faculty meeting soon after her appointment was

announced at the end of the preceding year, this was the first

time that she and R espondent had met.

7. Respondent believed she had a good relationship with

Ms. Reece , and Ms. Reece's testimony was consistent with that

belief . She generally had a reputation of being a good,

professional, and knowledgeable teacher, with high standards for

her students. She did not share the same rapport with Dr. Cagle.

I. The 2009 - 2010 School Year

A. Medication

8. M.H. was a student in Respondent's fifth - grade class

during the 2009 - 2010 school year. He made B's and C's in her

class. M.H. claimed that Respondent told him that he needed to

be on medication and that she called him dumb in front of the

class . M.H. admitted that right before the alleged comment

regarding the need for medication, he was standing at his seat as

opposed to sitting, and l iked to move around the class a lot. He

did not recall her ever calling a student in the class stupid.

9. Respondent denied asking M.H. if he was on medication or

telling him that should be medicated. Respondent acknowledged

that she spoke to M.H.'s m other during a parent conference about

his behavior and asked whether he was on medication. Although

M.H. was unsure why he was removed from Respondent's classroom,

he was transferred to the other fifth - grade teacher (Ms. Sheater )

at his mother's request.

10. K.L. was also a student in Respondent's class .

Generally, he was a B - to - D student who Respondent did not

consider to be a discipline problem . K.L. was on medication that

help ed him with focus. One morning, K.L. failed to take his

medication befor e leaving for school. K.L could not stay still

that day and was not getting his work finished. K.L. testified

that Respondent asked him why he was not finishing his work, and

whether he had taken his medication that day. When he said no,

she told him he should take his medication. No testimony was

presented as to who else could hear the comments made to K.L.

1 1 . Respondent vaguely remembers an incident where K.L. was

not doing his work and was talking instead, but does not recall

telling K.L. that he s hould have taken his medication.

1 2 . Another student testified that on occasion, Ms. Juniper

would make the statement that the students were "on medication or

something" when they were noisy and disruptive as a class, and

she was trying to get them to b e quiet. The comments were

directed to the class as a whole , however, and this student

denied ever hearing Respondent tell an individual that he or she

needed to be on medicine.

1 3 . Dr. Cagle testified that it would be inappropriate to

tell an unfocused student who had already told her that he forgot

to take his medication that he needed to do so. According to

Dr. Cagle, it is not up to the teacher to determine whether

taking meds is going to help him have a better day, and it is not

appropriate to make a statement regarding medication in front of

other children.

14 . After review of all of the evidence presented, the

Commissioner presented clear and convincing evidence that

Respondent told K.L. that he needed to take his medication on the

day that he ack nowledged he had not done so. It is not

established by clear and convincing evidence that the statement

was heard by other students. The other allegations regarding

comments to students that they needed medication were not

supported by clear convincing e vidence.

B. Belittling or Disparaging Remarks

1 5 . M.H. claimed that Respondent called him dumb in front

of the class. He did not recall her ever calling a student in

the class stupid. M.H. admitted that Respondent told the entire

class that not doing t heir work was dumb, but insisted that she

also made that statement about him individually.

16 . K.L. also testified that she called him dumb in front

of the class. Another student, G.L., stated that she told a

student on a single occasion that they needed to be on medication

but could not identify the student and could not recall any of

the circumstances related to the incident.

17 . No student indicated that they heard Respondent call a

student crazy or retarded. While D.L. testified that Respondent

tol d a student he or she was not going to sixth grade, she was

unsure which student was involved.

18 . Other individuals, including students, parents, and

staff, testified that they had never heard Respondent accuse a

child of needing medication or call a stu dent dumb, crazy, or

retarded. Respondent denies ever making such statements. With

respect to the statement about going to sixth grade, she

testified credibly that the only time she would discuss a

student's promotion to the next grade would be in the co ntext of

parent - child conferences, and not in front of other students.

19 . The evidence is not clear or convincing that Respondent

called students crazy, dumb, or retarded.

C. Clothing

20 . Yniestra, as a part of the Escambia County School

District, had a dress code that prohibited clothing that could be

considered disruptive. On one occasion, a female student in

Respondent's class was wearing a t - shirt that depicted a vampire

biting in the general vicinity of the student's breast. The t -

shirt was cover ed by another shirt, but while the students in

Respondent's class were in line in the hallway , the overshirt had

come loose, exposing the t - shirt.

21 . Respondent found the t - shirt inappropriate, and noticed

that the boys in the line were talking about i t. Ms. Parker, the

reading coach at Yniestra, was also in the hallway. Respondent

asked Ms. Parker whether the shirt was inappropriate, and in

Ms. Parke r 's view, Respondent was speaking about the shirt too

loudly and where the class could hear her. Ms. Parker felt that

Respondent was being confrontational toward the child and that if

the shirt was a problem, the proper procedure was to send the

student to the clinic, where the student could either secure

something to wear over the shirt or arrange for ot her clothing.

22 . Ms. Juniper did not report the child or send her to the

office, but she admits that she asked the child to cover the t -

shirt. The child was never identified at hearing, and did not

testify, so it cannot be determined whether the stude nt felt

singled out or embarrassed by the incident.

23 . On another occasion, Respondent commented upon T.I.'s

pants which had a paint - splatter pattern on them. T.R., however,

testified that Respondent told T.I. that her clothes were dirty,

and when she d id so T.I. was wearing cut - up jeans and a white t -

shirt which was in fact dirty. T.I. did not testify.

24 . The evidence is not clear and convincing that

Respondent made inappropriate comments regarding students'

clothing.

D. Informal Conference

25 . On November 5, 2009, Dr. Cagle requested an informal

conference with Respondent to discuss complaints that she had

received regarding inappropriate comments to students , such as

"you need medication"; "you need counseling, you are crazy"; and

"you'll never m ake it to middle school." Dr. Cagle's notes from

the conference indicate that Respondent admitted saying things

"like this" but not in the way the statements reported.

Dr. Cagle spoke with her about talking with students privately

and appropriately. The documentation relates only the events

from Dr. Cagle's point of view, with no written comments from

Respondent.

26 . In February 2010, Dr. Cagle sent Respondent a memo

indicating that discipline was being considered for s everal

reports of inappropriate comments being made to students in front

of the class, and for not following appropriate procedures. The

reference to improper procedures apparently was in response to a

report that on at least one occasion, Respondent sent a student

to the office for dis cipline as opposed to having assistance sent

to her classroom. The memo outlined strategies for improvement ,

and Ms. Juniper was given a copy of the Discipline Procedures

from the Policy Book and a copy of a memorandum that outlined the

steps for discipli ne.

E. The Treatment of S . J .

2 7 . S.J. is by all accounts, a very bright child, and was

at the head of her class. She was generally considered to be a

model student. Respondent thought her to be a bright child, but

believed she at times had an attitude problem.

2 8 . The Administrative Complaint alleges that Respondent

singled S.J. out for disparagement and told other students S.J.

was a bad in fluence and was trying to get Respondent in trouble.

The allegations regarding S.J. revolve around three inci dents:

a claim by Ms. Brees, the art teacher, that Respondent singled

S.J. out for rebuke in the hallway; a claim by Ms. Brees that she

reprimanded S.J. in the classroom when S.J. had done nothing

wrong; and an incident where Respondent allegedly tore S. J.'s

citizenship card.

2 9 . Ms. Brees was the art teacher at Yniestra , and taught

there for six years. Her classroom is in a portable whereas

Ms. Juniper's was on the second floor of the school building.

Ms. Brees describes two incidents that led her to believe that

Respondent had singled out S.J. for disparaging treatment. The

first was an incident where students from Ms. Juniper's class

were standing in line in the hallway. According to Ms. Brees,

Respondent accused S.J. of talking and berated her for doing so,

when S.J. was actually one of few students standing quietly in

line.

30 . There was no testimony as to when this incident

occurred, or how long Ms. Brees had been observing the conduct of

the students. It is impossible to tell, from the evide nce

presented at hearing, whether S.J. may have been misbehaving

before Ms. Brees observed her or whether Respondent in fact

singled her out for rebuke.

3 1 . The second incident occurred at the end of art class on

or about February 16, 2010, when Responden t went to pick up her

students and escort them back to lunch. She and Ms. Brees were

standing in the doorway to Ms. Brees ' portable. According to

Ms. Brees, she was standing in the open doorway, with her back

against the frame of the door. Ms. Juniper w as standing in the

open doorway of the portable but was partially inside the

classroom. While the students were waiting to line up to leave,

Ms. Juniper testified that saw S.J. make a "smart face" at

Ms. Brees and say something under her breath. She told S.J.,

"that is not appropriate. You are our valedictorian and should

be an example to others." Ms. Brees testified that she did not

see or hear S.J. do anything that needed correction.

32 . While Ms. Brees testified that she could see S.J. the

whole t ime, and Ms. Juniper testified that Ms. Brees could not,

from both women's descriptions, Ms. Juniper would have had a

better view of the children and was closer to them in terms of

hearing what was said. It is found that Respondent had a basis

to correct S.J.'s behavior and did so.

3 3 . Ms. Brees acknowledged that there are times when a

student can present behavioral issues for one teacher and not for

others. Moreover , t here was a prior incident to which Respondent

testified she had observed Ms. Brees spe aking to a student in

what she believed to be an inappropriate manner, and had told

Ms. Brees that she "couldn't say those things to a kid." Whether

o r not Ms. Brees acted inappropriately in the prior incident is

not an issue in this case. However, Respo ndent's comment on

Ms. Brees' behavior, whether or not warranted, may have had an

effect on her attitude toward Respondent and her view of

Respondent's behavior.

3 4 . In any event, after the incident in the portable,

Ms. Brees wrote an e - mail to Ms. Cagle complaining about

Respondent's treatment of S.J.

3 5 . The third incident involved the tearing of a

citizenship card (also referred to as a conduct card . On or

about March 8, 2010, Respondent was filling out a citizenship

card for S.J. and S.J. asked her for it. Ms. Juniper was not

finished writing on the card when S.J. reached for it, and the

card tore as she took it. Although S.J. knew that Ms. Juniper

had not torn the citizenship card, she told both her mother and

Dr. Cagle that Respondent had ripped the citizenship card into

pieces. She did not retract her statement until after the school

year ended and never told Dr. Cagle that her accusation was not

true.

3 6 . After the incident with the conduct card, S.J. started

keeping a log of things that Respo ndent did or said that she felt

were improper. Shortly thereafter, on March 12, 2010, Dr. Cagle

issued an e - mail to Respondent and to Ms. Sheater, stating:

"[S.J.] will be moved to Mrs. Sheater's class effective Monday,

March 15, 2010. This is at the mot her's request and I believe it

will be the best for all parties involved."

3 7 . At the time Dr. Cagle made the decision to transfer

S.J., she had both the e - mail from Ms. Brees and a complaint from

S.J.'s mother in response to the alleged incident with the

conduct cardansferring the child to another classroom under

these circumstances was reasonable.

3 8 . However, the question remains what would cause S.J. to

pull the conduct card from Respondent's hand in the first place,

and then lie about the inci dent to both her mother and to

Dr. Cagle. It is implausible that a model child with absolutely

no discipline or attitude problems would attempt to snatch

something out of her teacher's hand to the point of tearing it.

The circumstances related to the tor n citizenship card lend

credence to Respondent's testimony that she was recording on the

card that S.J. had been disrespectful and belligerent in class

that day, and that the citizenship card would reflect that

information.

3 9 . Contrary to Ms. Brees' tes timony, the guidance

counselor, Ms. McGowen, testified that she had been in

Ms. Juniper's classroom and that her interaction with students

was appropriate. She did not believe that Respondent singled out

S.J. for disparagement. She testified that Respond ent had

actually come to her about S.J., stating that S.J. may need to

talk to Ms. McGowen about some personal problems away from

school. Respondent testified that she had suggested to S.J.'s

mother that she go to guidance. Given this testimony, it is

pl ausible that, for whatever reason, S.J. resented Respondent

and/or did not behave as well in her classroom as she did

elsewhere . Whether or not that is the case, the evidence is not

clear and convincing that Respondent singled her out for

disparagement.

F . The Code Yellow

40 . On or about April 5, 2010, a lockdown was initiated at

Yniestra . Lockdowns could be a code yellow or a code red. A

code yellow indicates that there is someone around the premises

or in the nearby community that could be or cause d anger. In

that circumstance, a teacher was to account for all of the

students in her class, and if accounted for, place a green sheet

of paper in the door, lock it, and continue instruction quietly.

4 1 . A code red indicated that someone has broken into t he

building. The same procedures are followed as for a code yellow,

except that students and staff are to remain silent and stay away

from windows and doors.

4 2 . The lockdown on April 5, 2010, was extremely long.

Initially, all of the students in Respon dent's class were at a

reading table in the back of the classroom. As the lockdown

continued, however, the students became restless and were

talking . Some of them were under the table, laughing, cutting

up , and banging their heads. Respondent instructed them to be

quiet, but to no avail.

4 3 . Ms. Juniper called the front office to find out why the

lockdown was taking so long, and no one answered. She then

called Ann Choat, a curriculum coordinator for the 2009/2010

school year at Yniestra, to ask what w as going on, and told

Ms. Choat that she had called the office and could not get

anyone. Ms. Choat confirmed at hearing that she had receiv ed the

call and testified as to the contents of the conversation, yet

none of the students remembered whether Ms. Ju niper used the

telephone during the lockdown. This is significant because it

indicates to the undersigned that the students were paying more

attention to their own conversations, which they were not

supposed to be having, than to what Ms. Juniper was doin g or

saying.

4 4 . D.L. was one of the students who was laughing with her

friends. When the students did not follow her directions to be

quiet, Ms. Juniper moved her away from the other students to a

spot along the wall under the windows, on the same side of the

room as the door. Her head was not above the windows and she

could not be seen from outside the room. At least one other

student was also moved in order to get the students to be quiet.

4 5 . D.L. testified that she did not like being moved, and

to ld Respondent that if someone was outside, they could see her

and shoot her. D.L. testified that Respondent said she hoped the

person would come in and shoot them. Respondent adamantly denies

making such a statement, and testified that she responde d to D .L.

by saying "I hope you aren't shot, but if you keep talking like

that, I couldn't stop one from coming through this door."

4 6 . The testimony from other students regarding this

incident was varied. Some testified that it was a code red,

while others te stified it was a code yellow. Student s remembered

other students being moved from the back of the room, but could

not remember who or how many were moved or the location to which

they were moved. They could not remember whether D.L. was

talking to Respon dent before Respondent's comment, and if they

could remember, did not recall what D.L. said. All remember some

version of Ms. Juniper saying she hoped that those who were

talking got shot.

4 7 . Given the level of noise in the room and the inability

to rem ember other details about the lockdown, it is just as

likely (and more plausible) that Ms. Juniper said "I hope you

aren't shot" as opposed to saying "I hope you are shot."

Dr. Cagle acknowledged that children sometimes relate what they

thought they heard rather than what was actually said. It is

farfetched to believe that these students, who were holding their

own conversations and could not identify with certainly any of

the details surrounding the lockdown, suddenly heard with crystal

clarity exactly w hat Ms. Juniper said. In any event, the

evidence does not rise to the level of clear and convincing

evidence that she told her students she hoped they were shot.

4 8 . Whether or not she actually made the statement, it is

clear that D.L. believed that she did. She became very upset and

once the lockdown was over, Respondent sent her to Ms. Sheater,

the other fifth - grade teacher , so that she could take a few

moments and calm herself down. While in Ms. Sheater's room, she

relayed her version of the events t o Ms. Sheater , who instructed

D.L. to write down what happened, and called Ms. Parker, the

reading coach.

4 9 . Ms. Parker had D.L. come to her room and tell her what

happened. D.L. was visibly upset . Ms. Parker spoke to another,

unidentified student in the hall who was in Ms. Juniper's class,

who verified D.L.'s story. She then called Dr. Cagle and to

report the incident.

G. Discipline by the School District

50 . Dr. Cagle spoke to D.L. and then spoke to the other

children in the classroom. As a resu lt of her investigation, the

district office was notified of the incident, and Ms. Juniper was

immediately placed on suspension with pay while the incident was

investigated by the district.

5 1 . After the district's investigation, on May 12, 2010,

Responde nt received a letter of reprimand "for use of abusive,

rude or inappropriate communication both to, and in front of,

students and other employees at Yniestra Elementary School." She

was required to attend the staff development training titled

"What is it about me you can't teach?" and to meet regularly with

her principal to discuss any and all concerns regarding her

students. Participation in the Employee Assistance Program was

suggested but not required.

5 2 . Respondent grieved the reprimand through the district's

process for doing so. Consistent with the notice provided in the

reprimand, Responded prepared a written response which stated in

part:

As a 36 year veteran teacher, I have spent

the last ten years at Yniestra Elementary.

I have received comme ndations from students,

parent and administrators throughout my

career. I have always conducted myself in a

professional manner, keeping the best

interests of my students in my mind. I am

cognizant of their individual differences,

respectful of their fee lings, and doing my

best to meet their needs.

Your letter stated that it was given to me

because of my professional demeanor was

determined to be inappropriate. Incidents

that occurred during the 2009 - 2010 year were

interpreted to portray me in a negativ e

light and to shed doubts on my

professionalism. I believe the District's

decision to discipline me is based on

information obtained from biased and shoddy

investigations, giving undue weight to

statements made by students known to have

discipline issues in my and other

classrooms. This led to a faulty

conclusion, casting me in a negative light.

. . .

II. The 2010 - 2011 School Year

A. Abusive Statements

5 3 . Dr. Cagle changed Respondent's teaching assignment for

the 2010 - 2011 school year from the fi fth grade to the second

grade. She testified that she believed there would be fewer

disciplinary challenges in a second - grade setting because children

generally love their teachers at that age and are generally easier

to manage. In her view, it was a bet ter match for Respondent.

She acknowledges that there were fewer issues in this school year.

5 4 . Dr. Cagle testified that while there were fewer issues,

at least three or more students complained to her that Respondent

made derogatory comments to them o r put her hands on them when she

was angry.

5 5 . On October 22, 2010, she sent a memorandum to Respondent

directing her to come to the office and discuss allegations that

she made inappropriate comments in class and engaged in

inappropriate touching of students. Although the memorandum

indicated that documentation gathered regarding these issues was

attached, no such documentation was entered into evidence .

Further , no student testified that inappropriate statements were

made to them or that Respondent touched them inappropriately.

Dr. Cagle could not name any of the students that she states

complained to her. Clear and convincing evidence was not

presented to support the allegation that Respondent made

disparaging or inappropriate remarks to students . The only

evidence to support the allegation regarding inappropriate

touching involved an incident with K.S., which is discussed below.

B. The Bathroom Incident

5 6 . Judy LaBounty, was a curriculum coordinator for Yniestra

and Hallmark Elementary Scho ols during the 2010 - 2011 school year.

She testified that on or about October 15, 2010, she was standing

in the hallway of the school and saw Ms. Juniper and her class as

the girls were going to use the restroom. According to policies

instituted by Dr. Ca gle, students and staff were not supposed to

talk in the hallways. She said that it appeared that Respondent

was upset or angry, and she called a student from the restroom to

the door. When the student appeared, she took her by the arm

above the elbow, p ulled her over to the wall and leaned over to

speak to her. Ms. LaBounty stated that she was about ten yards

from her and could not hear her, but from both people's body

language, she was reprimanding the student in an angry tone.

5 7 . Ms. LaBounty did n ot know why Ms. Juniper was

reprimanding the child, who m she could not identify by name, but

simply knew she was trying to get the child to leave the restroom.

She notified Dr. Cagle of the incident because Respondent had put

her hand on a student.

5 8 . The student involved in this incident was K.S., an

energetic and bright young girl. On this particular occasion,

K.S. said another child was "messing with me" in the bathroom, so

she jumped on the other girl's back. The other child came out of

the bathro om with tears in her eyes. When Ms. Juniper asked her

what was wrong, she relayed that K.S. had jumped on her.

5 9 . Ms. Juniper called to K.S. to come out of the bathroom

and had to call more than once. When she came out, according to

K.S., Ms. Junipe r "gently pulled me out of the bathroom and she

just talked to me about it." Ms. Juniper's testimony is

consistent with K.S.'s, and Respondent admits taking K.S. by the

arm as she exited the bathroom.

60 . Both Ms. LaBounty and Dr. Cagle stated that it i s

against Escambia County School District policy to lay a hand on a

child. However, no copy of any policy was placed into evidence,

and without the policy in evidence, no analysis of its parameters

can be made. In any event, from the evidence and the dem eanor of

the witnesses, it does not appear that there was any attempt by

Respondent to yank on K.S.'s arm, engage in corporal punishment ,

or to hurt K.S. in any way.

C. Birthday Licks

6 1 . M.W. is a special education student in the extended

services p rogram for the Escambia County School District . At the

time of the incide nt he was approximately 19 years old, and worked

as a volunteer at Yniestra. He is described as a good worker with

limited academic skills.

6 2 . February 22, 2010, was M.W.'s birth day, and consistent

with school custom, he was wearing a birthday ribbon. The

students in Ms. Juniper's class wanted to make him a birthday

card, and Ms. Juniper gave them permission to do so.

6 3 . When M.W . went into Ms. Juniper's classroom that day,

on e of the children asked to sing "happy birthday," and they did.

After singing to him, someone suggested that the students give him

"birthday licks." While the testimony is i n dispute as to whether

Respondent suggested the licks or simply acquiesced to th em, it is

clear that she allowed at l e ast two of the students in the class

to hit M. W . on either his buttocks or his lower back , and at least

one child hit him hard . M.W . was uncomfortable with the process

and told Ms. Juniper that "this was not a good id ea."

6 4 . At some point, Dr. Cagle walked into the room and

witnessed the children giving M.W . birthday licks. She

immediately told Ms. Juniper that it was not appropriate , and had

M.W. leave with her. Dr. Cagle had M.W. visit the clinic where he

was ex amined for any injuries caused by the licks. None were

noted. However, M.W. was embarrassed by the incident and felt he

was in trouble for it.

6 5 . Respondent did not think anything of having the children

give M.W. birthday licks, because during the m any years that she

taught for the Department of Defense schools overseas, giving

birthday licks was routine. However, Respondent had been in the

Escambia County School District for several years, and should have

known that it was not part of the culture i n this setting.

Moreover, having second graders give licks to a much older special

needs student was clearly inappropriate.

6 6 . Later in the day, Respondent took the card her class had

made to M.W., and he was still upset. She was then called to the

of fice and told to pack her things bec a use she was being

suspended. She told Dr. Cagle that the incident was her fault and

she would take the blame for it.

6 7 . Respondent was placed on suspension with pay during the

investigation of the incident. Ultimat ely, she was suspended

without pay for two days, beginning Wednesday, April 20, 2011, as

discipline for the incident.

D. The Relationship Between Dr. Cagle and Respondent

6 8 . Evidence was presented at hearing regarding the changes

at Yniestra once Dr . Cagle became principal, for the purpose of

showing bias or prejudice concerning Dr. Cagle's testimony. 3/

6 9 . Dr. Cagle did not know Respondent before she became

principal, and before that time her contact with Respondent was

limited. However, it is clear that Dr. Cagle's management style

was very different from that of her predecessor, Nancy Reese.

This proceeding is not the place to determine which, if either,

style is or was more effective, but it is clear from the testimony

that not all teachers who had taught under Ms. Reece were thrilled

with the changes. Several testified that they were removed from

committee assignments and did not feel that their contributions

were respected by the new leadership. Several transferred or

retired rather than stay at Yniestra.

70 . Yniestra was scheduled to close after the 2010 - 2011

school year, and Dr. Cagle was to stay on and serve as principal

for the Global Learning Academy, an elementary school that would

open in the same location as Yniestra. From the t otality of the

evidence, it appeared that Dr. Cagle was "cleaning house" in terms

of staff. While there is no question that some of the events

alleged in the Administrative Complaint in fact occurred, it also

appears that Dr. Cagle was motivated to remove Respondent from her

position. As Ms. McGowen stated, she did not believe Respondent

could please Dr. Cagle.

71 . For example, on June 23, 2011, Dr. Cagle wrote to the

Department of Education about Respondent's performance. At

hearing, Dr. Cagle indicat ed that she wrote the letter at the

request of an investigator at the Department of Education. The

letter, however, makes no reference to a pending investigation and

makes several statements that are inconsistent with the other

evidence presented at heari ng.

72 . For example, the first bullet point states that :

Ms. Juniper is emotionally unstable. She

lost her son unexpectedly right before school

starts. She cries often and for long periods

of time. She talks about his death daily to

her class. She ta lks endlessly to anyone who

will listen about him. I encourage her to go

to counseling but sh e says she does not need

to go.

7 3 . Dr. Cagle acknowledged at hearing that she is not

qualified to determine emotional instability, and no fitness - for -

duty ev aluation was ever requested. No other staff member from

Yniestra testified that Respondent was mentally unstable. To the

contrary, Linda Mas h on (who re tired in September 2010), Uadon a

Lobley (who transferred after the 2009 - 2010 school year), Holli

Herron (who transferred after the 2010 - 2011 school year), Jennifer

Kemp (who transferred after the 2009 - 2010 school year) , and Ann

Choat (who retired after the 2009 - 2010 school year) uniformly

described Respondent as having a reputation of being a

professional w ho worked well with her students and,

notwithstanding the loss of her son, no ne of them consider ed her

to be unstable.

7 4 . Dr. Cagle's letter identified several inflammatory

statements that she attributed to Respondent, some of which were

alleged in the Administrative Complaint and some of which were

not. Although this letter is supposed to be part of an

investigation into Respondent's behavior, she gives no specifics

as to the identity of the students to whom these statements were

made, who reporte d them, or when they were made in order for the

Department to investigate.

7 5 . The letter states that "eight parents requested that

their child be placed in another class the year [sic] ." At

hearing, she testified specifically about a request from D.V. that

her daughter not be placed in Respondent's class:

Q. And can you tell us the reasons why

these parents asked that their child be

removed from Ms. Juniper's class?

A. The first request came before the first

day of school. It came from a parent,

Ms. V.

Q. What is Ms. V's first name?

A. D.V. That her daughter not be placed in

Ms. Juniper's class. That she had past

experience with Ms. Juniper. I believe her

words were, the lady is crazy, I don't want

my daughter in that classroom. And I put

her in Ms. Sheater's classroom before school

started.

The other incidences, the other

students that were moved were for various

reasons. It was typically the result of a

situation that occurred between Ms. Juniper

and their child and that they wanted anoth er

teacher.

7 6 . When she was asked on cross - examination whether the

placement request could have been because Respondent and D.V. were

friends and Respondent had known the child for years, Dr. Cagle

stated that was not what was told to her and she had n o knowledge

of their friendship.

7 7 . D.V. was the only parent that testified at hearing whose

child was reassigned. D.V.'s testimony, however, directly

contradicted that of Dr. Cagle. She credibly testified that she

met with Dr. Cagle as she has met wi th the principal each year

with respect to her child's placement. According to D.V., her

daughter, J.V., is adopted and has bipolar disorder. She is

strong willed and can be manipulative. She flatly denied telling

Dr. Cagle that she did not want J.V. in Respondent's class because

Respondent was crazy: to the contrary, she did not want her

placed in Respondent's class because J.V. and Ms. Juniper knew

each other too well, and D.V. felt that her daughter would "make a

run on Deidra, play on her, on our re lationship." She denied ever

thinking that Respondent was unstable and denied telling either

Dr. Cagle or Ms. Parker that Respondent was crazy .

7 8 . Finally, the letter states that the former principal

"said she felt sorry for her because of her divorce and did not

take enough action but encouraged her to go to counseling."

However, Nancy Reece's testimony at hearing is inconsistent with

such a statement. Ms. Reece testified that Respondent was a very

professional teacher who stayed on task and exhibit ed good quality

teaching.

7 9 . The testimony and other evidence presented convinces the

undersigned that for whatever reason, Dr. Cagle was willing to

believe the worst of Respondent and not likely to give her the

benefit of the doubt should a complaint arise. To be sure, there

is at least one incident of inappropriate behavior that ha s been

proven by clear and convincing evidence. However, Respondent is

not the unstable, out - of - control disaster that Dr. Cagle clearly

believes her to be.

E. Dr. McDon ald's Evaluation

80 . For mitigation purposes, Respondent was evaluated by

Dr. Randi McDonald to obtain a current psychological evaluation in

order to determine the presence of mental health issues that

impair her ability to continue working as an element ary school

teacher. Dr. McDonald is a forensic psychologist with a doctorate

degree in psychology. She has been license d in Florida since

2009.

8 1 . Dr. McDonald conducted a forensic evaluation which

included the admini stration of psychological tests, i nterviews

with Respondent, and review of the Department of Education file.

She ultimately opined that Respondent does not suffer from any

significant psychiatric issue which would affect her ability to

teach.

8 2 . She did, however, stated that the test ing revealed that

Respondent does not want to admit to even minor shortcomings and

faults that most people have, and that her "underreporting" was

consistent with her very traditional background. Dr. McDonald

stated that Respondent has difficulty seeing w eaknesses because

they "just don't register in how she defines herself." As stated

in her report,

It is this evaluator's clinical impression

that Ms. Juniper is perfectionistic and

somewhat over - controlled in her general

approach to life and her interact ions with

others. These qualities can be quite

positive, in that they likely contribute to

excellent organizational skills and

leadership capacity and have most certainly

played a part in her success as a teacher

over the years. On the other hand, these

qualities can make her less amenable to

change at times. . . .

8 3 . Dr. McDonald's evaluation is consistent with

Respondent's demeanor and responses at hearing. Several of the

allegations in the Administrative Complaint were not proven by

clear and conv incing evidence, and in some instances, a change of

phrase makes a great deal of difference in how behavior is

perceived. The evidence as to some alleged events was simply not

sufficient to meet the clear and convincing standard. However,

even in those i nstances where Respondent essentially admitted to

the behavior at issue, she tended to minimize her role in the

negative result.

CONCLUSIONS OF LAW

8 4 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to t his

action. §§ 120.569 and 120.57(1), Fla. Stat. (2012) .

8 5 . This is a disciplinary action by Petitioner in which

Petitioner seeks to suspend Respondent's teaching certificate.

Petitioner bears the burden of proof to demonstrate the

allegations in th e Administrative Complaint by clear and

convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987).

8 6 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weig ht that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

v. Walker , 429 So. 2d 797, 8 00 (Fla. 4th DCA 1983) ) .

8 7 . The Administrative Complaint charged Respondent with

violations of subsections 1012.795(1)(d) and (j), Florida

Statutes , and Florida Administrative Code Rule 6B - 1.006(3)(a) and

(e) . Section 1012.795 authorizes the Education Practices

Commission to suspend, revoke, or otherwise penalize a teaching

certificate, provided it can be shown that the holder of the

certificate has committed any of the violations enumerated.

8 8 . The Administrative Complaint alleges the following fact s

as a basis for taking disciplinary action against Respondent:

3. During the 2009 - 2010 year, the

Respondent taught fifth grade at Yniestra

Elementary School. During the school year,

the Respondent:

(a) told students that they needed to be on

medicatio n or were "crazy" or words to that

effect;

(b) told student [sic] that they were

stupid and were not going to move on to the

sixth grade;

(c) made belittling and disparaging

comments to students in front of other

students regarding students' clothing and

appearance; and

(d) singled out S.J. for disparagement and

told other students that S.J. was a bad

influence and was trying to get the

Respondent in trouble.

4. On or about April 5, 2010, during a

school lockdown that was initiated due to

concern s ab out an [sic] shooting reported

off - campus, the Respo ndent observed several

student [sic] who were talking and laughing.

The Respondent told a student, D.L., to sit

near the door and commented that she hoped

that the student "would get shot by the

gunm an" or words to that effect.

5. During the 2010 - 2011 school year, the

Respondent taught second grade at Yniestra

Elementary School. During the school year

the Respondent:

(a) told students that they were "slow,"

"had ADD," were acting "retarded" and ne eded

to be on medication, or words to that

effect; and

(b) grabbed a student by the arm when the

student came out of the restroom.

6. M.W. is a nineteen year - old male student

who is classified as an exceptional

education student and was a volunteer at

Yniestra Elementary School. On or about

February 22, 2011, M.W. entered the

Respondent's classroom and the students

noted that it was M.W.'s birthday. The

Respondent held M.W. by the arm and

solicited students to come forward and hit

M.W. on the back or rear - end as a form of a

birthday spanking or "licks." Several

students hit M.W. with force. M.W. was

embarrassed by the incident.

8 9 . After a complete review of the evidence, Petitioner

proved by clear and convincing evidence that Respondent told K.L.

he needed to take his medication on the day he forgot to do so,

and that she, at the very least, allowed the students in her

second - grade class to give birthday licks to M.W. The evidence

supporting the other factual allegations in the Administrative

Com plaint was not sufficient to meet this high evidentiary

standard.

90 . Count One of the Administrative Complaint charges

Respondent with violating section 1012.795(1)(d), which makes it

an offense subject to discipline where a certificateholder "has

been guilty of gross immorality or an act involving moral

turpitude."

9 1 . In order to prove that Respondent has violated the

charge contained in Count One , Petitioner must show that

Respondent's conduct , as alleged in the Administrative Complaint,

amounts to a cts of gross immorality.

9 2 . The Education Practices Commission has not defined

"gross immorality" or "moral turpitude" for the purposes of

discipline to be imposed pursuant to section 1012.795, Florida

Statutes. The Commission has, however, defined "i mmorality" and

"moral turpitude" for use by school districts in taking action

against instructional personnel in Florida Administrative Code

Rule 6B - 4.009. This rule provides in pertinent part:

(2) Immorality is defined as conduct that is

inconsistent wi th the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties;

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to soci ety in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

9 3 . The Supreme Court of Florida has also defined moral

turpitude as "anything done contrary to justice, honesty,

principle, or good morals, alt hough it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933). In Brogan v. Mansfield , No. 96 - 02 86 (Fla. DOAH Aug. 1,

1986; Educ. Practices Comm'n. Oct. 18, 1986), the hearing officer

observed that "[t]he term "gross" in conjunction with

"immorality" has heretofore been found to mean "immorality which

involves an act of misconduct that is serious, ra ther than minor

in nature, and which constitutes a flagrant disregard of proper

moral standards."

9 4 . In this case, the two acts that were proven are telling

a student they need to take their prescribed medication, and

participating in or allowing her se cond - grade students to give an

exceptional education student/volunteer birthday licks. The

question becomes whether Respondent's conduct with respect to

these acts rises to the level of not just immorality, but gross

immorality. It is concluded that the events proven here simply do

not rise to that level.

9 5 . The medication issue will be discussed more fully with

respect to a different count, but in any event does not constitute

gross immorality. With respect to the birthday licks, Respondent

used extr emely poor judgment in allowing this behavior in her

classroom. While the practice may have been permitted in

Department of Defense schools where she taught, and is a practice

perhaps permitted among friends or family, administration of

birthday licks, es pecially to a volunteer with significant

learning disabilities, in a classroom setting is clearly not

appropriate. However, it is not an action rising to moral

turpitude or gross immorality. Count One has not been

demonstrated by clear and convincing evi dence.

9 6 . Count Two charges Respondent with violating the

Principles of Professional Conduct for the Education Profession,

in violation of section 1012.795(1)(j). By virtue of the

conclusions made below with respect to Counts Three and Four,

Petitioner has proven Count Two by clear and convincing evidence.

9 7 . Counts Three and Four charge Respondent with violating

subsections of Florida Administrative Code Rule 6B - 1.006(3)(a) and

(e). The relevant provisions of rule 6B - 1.006 state in part:

(1) The f ollowing 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 educatorÓs

cer tificate, 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 studentÓs mental and/

or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

child to unnecessary embarrassment or

disparagement.

9 8 . With respect to the incident involving birthday licks,

Petitioner has proven a violation of Counts Three and Four by

clear an d convincing evidence. M.W., while a volunteer at

Yniestra, was a student in the Escambia County School District

with the exceptional education program. Although not her

student, he was still a student in the school district. Placing

him in a position w here much younger children were hitting him

under the guise of a birthday celebration is an expression of

poor judgment that caused M.W. to feel embarrassed and

humiliated. It also exposed him to physical harm.

9 9 . The same cannot be said with respect to the comments

made to K.L. regarding his medication. The undersigned found his

testimony regarding the medication to be clear and credible, but

was less convinced that Respondent ever referred to K.L. or any

other student as dumb or stupid. While Dr. Cag le testified that

it was inappropriate for Respondent to tell K.L. that he needed

to take his medication (which Respondent clearly knew he took),

she pointed to no policy or rule that would prohibit a teacher

from privately reminding a child to do what has been prescribed

for him. Her reminder is not a prediction that taking his

medication will make him have a better day, but rather a

reinforcement that he should follow the directions already given

to him.

100 . The Education Practices Commission has adop ted

disciplinary guidelines for the imposition of penalties

authorized by section 1012.796. Florida Administrative Code Rule

6B - 11.007 provides a range of penalties from probation to

revocation for violations of the rules at issue in this case.

101 . The Commissioner recommended that Respondent's

certificate be suspended for one year; that she undergo an

evaluation by the Recovery Network Program upon terms set by the

Education Practices Commission; that she be placed on two years

of probation upon terms set by the Commission, that that she pay

an administrative fine of $500. However, the recommended penalty

is based upon the assumption that all of the allegations in the

Administrative Complaint were proven, and not all of the

allegations were found by cl ear and convincing evidence to have

occurred . The undersigned has considered the aggravating and

mitigating factors identified in rule 6B - 11.007(3), including

that the Commission did not present any evidence of previous

discipline by the Commission; that Respondent has been teaching

for over 35 years; and that there has been no physical damage

caused, although there was the potential for some. After a

review of all of the factors present in this case, it is

concluded that while punishment is warranted, th e discipline

suggested is too severe.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order finding that Respondent has violated section

1012.795(1)(g), Florida Statutes, and ru le 6B - 1.006(3)(a) and

(e), and placing Respondent on probation for a period of two

years, subject to terms and conditions imposed by the Commission.

DONE AND ENTERED this 31s t day of August, 2012, in

Tallahassee, Leon County, Flor ida.

S

LISA SHEARER NELSON

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.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 1s t day of August , 2012 .

ENDNOTE S

1/ All references to the provisions in chapter 1012, Florida

Statutes, are to the 2009 codification.

2 / S tudents , as well as any parents who testified, have been

identified only by initials.

3/ Petitioner objected to the defense inquiry into the work

environment as being beyond the scope of the allegations in the

Administrative Complaint. However, section 90.608 (2) , Florida

Statutes, prov ides that any party may attack the credibility of a

witness by showing that the witness is biased. "Bias or

prejudice of a witness has an important bearing on his

credibility, and evidence to show such bias is relevant." Lloyd

v. State , 909 So. 2d 580, 5 81 (Fla. 2d DCA 2005)(quoting Webb v.

State , 336 So. 2d 416, 418 (Fla. 2d DCA 1976)). "A defendant

should be afforded wide latitude in demonstrating bias . . . on

the part of a witness." Id.

Included in the types of evidence that demonstrate bias are

prejudice, interest in the outcome of a case, intimate familial

or illicit relationships, past or present employment

relationships, pending criminal charges , or the witness's

occupation. Tobin v. Leland , 804 So. 2d 390, 394 (Fla. 4th DCA

1994) and Jones v. State , 678 So. 2d 890 (Fla. 4th DCA 1996).

Moreover, "utterances of a witness indicating motive or bias do

not constitute hearsay when offered for impeachment purposes."

Green v State , 691 So. 2d 49, 50 (Fla. 4th DCA 1997) (quoting

Fields v. State , 60 8 So. 2d 899 (Fla. 1st DCA 1992)).

The ability to present evidence of bias or prejudice is not

unfettered, however. In Tobin , the court stated:

Evidence of bias is subject to balancing

under the provisions of section 90.403, and

a trial court's determi nation of how far an

inquiry into bias may proceed is within the

trial court's discretion.

Although attorneys should be given wide

latitude when cross - examining witnesses to

demonstrate bias or prejudice, that latitude

is not without its limits.

804 So. 2d at 393 (citations omitted) .

COPIES FURNISHED:

David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 3 2435

[e-mail]

Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

[e-mail]

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois S. Tepper, G eneral Counsel

Department of Education

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Ta llahassee, Florida 32399 - 0400

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 Or der should be filed with the agency that

will issue the Final Order in this case.