12-002270TTS Lake County School Board vs. Jaclyn Ockerman Status: Closed Recommended Order on Wednesday, November 14, 2012.

Summary: Petitioner failed to prove, by a preponderance of the evidence, misconduct in office sufficient to warrant termination of Respondent from employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. )

) Case No. 1 2 - 2270TTS

JACLYN OCKERMAN , )

)

Respondent . )

)

RECOMMENDED ORDER

This case was he ard on September 10, 2012 , in Leesburg ,

Florida, before E. Gary Early, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen W. Johnson , Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

1000 West Main Street

Leesburg , Florida 3 4749

For Respondent: Alfred Truesdale , Esquire

Jill S. Schwartz & Associates, P.A.

655 West Morse Boulevard, Suite 212

Winter Park, Florida 3 2789

STATEMENT OF THE ISSUE

W hether Respondent violated Florida Administrative Code

Rule 6B - 1.006(3)(a) of the Code of Ethics and the Princip l e s of

Professional Conduct of the Education Profession in F lorida as

alleged in PetitionerÓs June 6, 2012 , notice of recommendation

of termination and , if so, the nature of the sanctions .

PRELIMINARY STATEMENT

On June 6, 20 12, the Lake County School District

Superintendent of Sc hools notified Respondent of the

SuperintendentÓs intent to recommend that the Lake County School

Board (School Board) terminate Respondent's employment as a

teacher at the Fruitland Park Elementary S chool . Prior to the

proposed termination, Respondent taught a kindergarten - level

class for students with Autism Spectrum Disorder.

The notice of recommendation of termination alleged that

Respondent Ðslapped, squeezed faces, and pulled forcibly on the

ar ms of the studentsÑ and created Ða culture of silence . . . in

your classroom which discouraged other staff from coming forward

with the allegations.Ñ As such, Petitioner alleged that

Respondent failed to Ðmake reasonable effort to protect the

student fro m conditions harmful to learning and/or to the

studentÓs mental and/or physical health and/or safety.Ñ

Respondent timely filed a petition disputing allegations in

the notice. The petition was referred by the School Board to

the Division of Administrativ e Hearings on June 27, 2012. The

matter was noticed for hearing on August 14, 2012. Respondent

requested a continuance of the hearing, which was unopposed.

The hearing was reset for September 10, 2012, and was held as

scheduled.

At the final hearing, P etitioner presented the testimony of

Rebecca Nelson, PetitionerÓs Supervisor of Compensation and

Employee Relations; Lisa Bass, a paraprofessional teacherÓs

assistant at Fruitland Park Elementary School; Lauren Atwood, a

teacher for K - 2 intellectually disa bled students and former

teacherÓs assistant in RespondentÓs classroom; Respondent,

Jaclyn Ockerman; Dr. Melissa Dejarlais, the p rincipal at

Fruitland Park Elementary School; Patricia Nave, the a ssistant

p rincipal at Fruitland Park Elementary School; Gale Linson,

PetitionerÓs Program Specialist for Autism Spectrum Disorder ;

and Anganette Rose, a Behavior Analyst on contract with

Petitioner for the 2010 - 2011 school year. Petitioner offered

PetitionerÓs Exhibits P1 - P 10, P10A, and P11 - P 14 , which were

received in evidence. Among Petitioner's e xhibits were

depositions of : Helen Johnson, a former teacherÓs assistant in

RespondentÓs classroom (Exhibit P1); and Elizabeth Michelle

Price, a former teacherÓs assistant in RespondentÓs classroom

(Exhibit P2). Both Ms. Johnson and Ms. Price were greater than

100 miles from the location of the hearing, and their

depositions were admitted in lieu of live testimony.

PetitionerÓs exhibit s also included RespondentÓs deposition

(Exhibit P 3 ).

Respondent testified on her own behalf and presented the

testimony of Gary Johnson, a former teacher and Grade Level

E xceptional Student Education (ESE) Chair at Fruitland Park

Elementary School; Michael Turner, a former ESE teacher at

Eustis High School; and Jacqueline Dobbs, a n ESE teacher at

Fruitland Park Elementary School during the time in question.

Respondent offered Respondent Ós Exhibits R1 - R9 , which were

received in evidence .

A one - volume T ranscript of the hearing was filed on

September 26, 2012 . Petitioner and Respondent timely filed

Proposed Recommended Orders, which have been considered in the

preparation of this Recommended Order. References to statutes

are to Florida Statutes (2011) unless otherwise noted.

FINDINGS OF FACT

1. Petitioner is the constitutional entity authorized to

operate, control, and supervise the system of public schools in

Lake County, Florida. Art. IX, § 4(b), Fl orida Constitution ;

§ 1001.32 , Fl a . Stat . Petitioner has the authority to

discipline instructional staff and other school employees.

§1012.22(1)(f), Fl orida Statutes .

2. At all times relevant to this proceeding, Respondent

was a teacher of K - 3 students with Autism Spectrum Disorder

(ASD) . During the 201 1 - 201 2 school year, RespondentÓs class had

between two and seven students.

3 . Respondent holds a bachelorÓs degree in elementary

education and a m aster Ós degree in special e ducation .

Respondent received her Florida teaching certificate in 2008.

Petitioner has completed the coursework for the autism

endorsement, but has not yet added it to her teaching

certificate . Petitioner also received annual C risis Prevention

Intervention (CPI) training, which is a nonviolent crisis

intervention and restrain t training. CPI teaches ways to

restra in or calm an autistic child when the child is Ðcoming at

you physically.Ñ

4 . Respondent started her teaching career in Lake County

in December 2008 at Eustis High School, where she taught ninth

grade ESE students. She taught at the Spring Creek charter

e lementary s chool for the 2009 - 2010 school year , where she

taught a self - contained K - 6 class of approximately fifteen

students having various disabilities.

5 . Respondent was hired at Fruitland Park E lementary

S chool for the 2010 - 2011 school year , and wa s assigned to teach

a K - 3 level class for ASD students . Most of the student s in

Respondent Ós class were kindergarten - level students.

6 . Respondent was retained at Fruitland Park Elementary

S chool f or the 2011 - 2012 academic school year pursuant to a

prof essional services contract , entered on August 15, 2011,

which provide d that:

The Teacher shall not be dismissed during

the term of this contract except for just

cause as provided in sections 1012.33,

Florida Statutes, and such other provisions

as prescribe d by state law, School Board

Policy, and the DistrictÓs Instructional

Personnel Evaluation System. ÐJust causeÑ

includes, but is not limited to the

following: immorality, misconduct in office,

incompetency , gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

7 . Respondent received ÐacceptableÑ evaluations while at

Fruitland Park E lementary S chool, which was the hi ghest rating

at the time . Respondent was the subject of no parent

complaints.

8 . Respondent was well regarded as a good and effective

teacher, firm in discipline , and knowledgeable in her field.

9 . Prior to the incidents that are the subject of this

proceeding, Respondent was not subject to any disciplinary

action.

10 . Students with ASD have difficulty controlling their

behavior, often act out in a physical manner, and are frequently

non - verbal .

11 . RespondentÓs classroom was located in a portable

classroom building . Thus, if a student was outside of the

classroom, he or she was physically outside, and not in an

interior hallway of a larger building . The classroom backed up

to the PE field .

12 . Respondent was assigned one full - time and one part -

time teacherÓs assistant (TA) to help with her ASD students .

13 . Elizabeth Price was RespondentÓs full - time assistant

for the 2010 - 2011 and 2011 - 2012 school years.

14 . Ms. Price claimed that she was Ðverbally abusedÑ by

Respondent during the 2011 - 2012 school year as a result of an

October 2011 discussion , initiated by Respondent and directed at

Ms. PriceÓs Ðnegative attitude.Ñ Ms. Price was overtly critical

of Respondent to others during the course of the school year ,

including the classroom behavior analyst, Ms. Rose . In addition

to her testimony as to the criticism leveled at Respondent by

Ms. Price, Ms. Rose testifie d as to her impression that

Ms. Price wanted more independence to implement her own

strategies, but that Respondent guided her Ðin staying with the

protocols that she had in the classroom.Ñ Ms. RoseÓs testimony

is not accepted to prove the truth of the matter s asserted, but

rather as evidence of Ms. PriceÓs feelings of ill - treatment at

the hands of Respondent. Ms. Price testified that she felt

unable to complain to the administration because Respondent Ðhad

a personal relationship with our assistant principalÑ and that ,

if she complained, her job would be in jeopardy. The testimony

of Ms. Price as a whole, and her written statement provided to

the school on May 2, 2012, leave s the undersigned with the

distinct impression of a personal animus by Ms. Price against

Respondent.

15 . The part - time TAs varied throughout the year .

16 . Sharon Rogers was assigned as a part - time TA to

RespondentÓs classroom at the beginning of the 2011 - 2012 school

year. She was only in the class for a few weeks.

17 . Ms. Rogers was replaced by L auren Atwood, who was in

the class from September 27, 2011 , to January 30, 2012 , at which

time she accepted a full - time position as a K - 2 teacher for

intellectually disabled students at Fruitland Park Elementary .

Prior to being place d in RespondentÓs classroom, Ms. Atwood had

nev er worked in a unit with autistic children. During the time

Ms. Atwood was in RespondentÓs class, she never saw Respondent

strike a student, never saw Respondent roughly handle a student,

and never saw Respondent grab a student by an arm or leg.

18 . Ms. Atwood was replaced by Helen Johnson. Ms. Johnson

was the part - time TA at the time Respondent was removed from the

classroom.

19 . From November 2011 until late April, 2011, Lisa Bass

was a TA in Jacqueline DobbsÓ class for emotionally disturbed

c hildren. In late April 2012, Ms. Bass was assigned to replace

Ms. Price as a TA in RespondentÓs class. Ms. Bass was asked by

Candice Benjamin , the Fruitland Park ESE specialist, to report

anything Ðuntoward and unprofessionalÑ that happened in

R espondent Ós classroom. Ms. Bass testified that Ms. BenjaminÓs

request Ðwas very crypticÑ and that s he felt as though she was

acting Ðcloak and dagger.Ñ Ms. Bass served as a TA for

approximately five days, and on May 2, 2012, reported the

conduct t hat resulted in RespondentÓs removal from the

classroom.

20 . The TAs were typically with Respondent at all times,

and assisted with the ÐcentersÑ where the students did their

work. Respondent was , as a rule, alone with the students for no

more than 15 minutes per day, when one TA would go to lunch, and

the other would go to pick up lunches for the students, who ate

in the classroom.

21 . During the times they were assigned to Respondent Ós

classroom, none of the TAs hel d teaching certificates, and none

were certified in any behavioral specialties.

22 . In addition to the TAs, RespondentÓs class was visited

on a regular basis by a speech therapist. The speech therapist

missed RespondentÓs classroom visit at least once a month, and

sometimes more, for reasons that varied . Since the absences

often occurred on Wednesdays, Respondent tried to make

alternative arrangements for a student who had her speech

therapy on Wednesdays and who Respondent felt was being short -

changed as a result. Respondent complained to the ESE

spec ialist regarding the absences.

23 . In late April, 2012, the school decided to rotate TAs

to different classes. Respondent felt that practice disrupted

her classroom, which in some measure depended on stability and

familiarity of the teachers to the st udents. Respondent

complained about the practice in late April 2012.

24 . There were no complaints made against Respondent by

her TAs or anyone else until Ms. Bass reported her complaint on

May 2, 2012. No TAs complained until Ms. Dejarlais called them

in for interviews.

25 . Ms. Nave, the Fruitland Park Elementary S chool

a ssistant p rincipal, observed Responden t in the classroom Ðmany

times Ñ . She never observed Respondent engaging in any

inappropriate behavior, including slapping, kicking, or grabbing

of students.

26 . Ms. Linson, the School Board ASD Program Specialist,

occasionally observed Respondent in the classroom. She never

observed inappropriate behavior in RespondentÓs classes.

27 . The notice of recommendation of termination th at forms

the basis for this proceeding alleged that Respondent Ð slapped,

squeezed faces, and pulled forcibly on the arms of the studentsÑ

and created Ða culture of silence . . . in your classroom which

discouraged other staff from coming forward with the

a llegations.Ñ

Allegations of Slapping

28 . Ms. Atwood testified t hat she saw Respondent slap one

studentÓs hands Ða few times.Ñ T he incidents occurred when a

particular student took something that was not his, or tried to

place his hands on or hurt ano ther student. The s laps were not

hard , and triggered no concern that the incidents should be

reported . Other than s lapping hand s , Ms. Atwood knew of no

other incident s of Respondent striking a student.

29 . Ms. Johnson testified that she observed Respondent

slap a student Ós hand on one occasion. The incident occurred

after the student struck Respondent on the back. Ms. Johnson

testified that Respondent slapped the student Ós hand and said

ÐdonÓt hit.Ñ Th e incident left no mark on the student Ós hand.

Ms. Johnson did not contemporaneously report the incident.

30 . Ms. Johnson also testified that Respondent slapped a

student Ós hand when he pinched her nipple. Ms. Johnson

understood the slap to be a reflex ive reaction to the pain. The

undersigned does not consider a mild human response to a

personal and painful event to constitute a violation of the

disciplinary standards at issue in this case.

31 . Other than the single incident of slapping the

student Ós hand in response t o being struck on the back,

Ms. Johnson never observed Respondent roughly physically

handling any student.

32 . Ms. Price testified that, on one occasion during the

2011 - 2012 school year, Respondent slapped a student on the arm

while eng aged in a Ðtug of warÑ over a bin where the student

sat . She stated that the slap was, in her opinion, harder than

necessary. The slap left no mark on the studentÓs arm.

Ms. Price could not recall when the alleged incident occurred,

being unable to narr ow it even to a six month window. Ms. Price

did not contemporaneously report the incident.

33 . Respondent testified that she never struck a student .

Respondent testified that she occasionally had to deflect

st udent attempts to strike her, but that physical contact was

done as an avoidance technique or when a student was perceived

to be a threat to others.

34 . ASD teachers are taught to fend off attempts by

students to strike the teacher or others by the use of blocking

techniques in which the kicks and hits are deflected . The

impression conveyed to the undersigned was one of a Ðwax on - wax

offÑ motion. The attempts are physical ly blocked, and the

target moved . Respondent testified that her attem pts to deflect

and redirect blow s by pushing away a studentÓs hand c ould be

conceived as a slap.

35 . Respondent testified that she is hit and kicked by her

students almost as a matter of course . Her testimony was

supported by that of Ms. Linson, who not ed that ASD students

frequently hit teachers, and Ms. Rose, who commented that

Respondent turned her back to the students when they struck her,

and as a result Ðoften got hit in the back.Ñ Respondent

generally ignored the frequent incidents.

36 . The e vidence as to the slapping of studentsÓ hands was

contradictory. The analysis of the evidence was made more

difficult by the fact that Respondent had specialized training

in dealing with ASD students and the TAs had none , and by the

fact that blocking tec hniques could be misconstrued as slapping

by those unfamiliar with the intervention. The evidence

indicates that at least some of the small handful of incidents

were taken t o prevent a student from harming other students .

37 . Nevertheless, Petitioner pr oved, by a b are

p reponderance of the evidence , that Respondent slapped the hands

of one or more students in something more than a purely

defensive or protective manner on, at most, a very few

occasions , including the incident described by Ms. Johnson in

which Respondent slapped the hand of a student after having been

hit on the back. The evidence demonstrates such incidents were

isolated and mild . There was no evidence introduced to support

a finding that the incidents were harmful to any studentÓs

lear ning , or that the incidents adversely affected any studentÓs

mental or physical health, or their safety.

Allegations of Squeezing StudentÓs Faces

38 . Two days after she was placed in RespondentÓs

classroom, Ms. Bass testified that she observed Responden t grab

a childÓs face. The incident purportedly occurred when a

student was running with a toy. Respondent wanted the student

to settle down, which he would not do. The student fell and

began to cry. Ms. Bass testified that Respondent grabbed the

stude ntÓs face and said, in a voice between calm and yelling,

something to the effect of ÐI am in charge . YouÓre not in

charge here. You will do as I say. Ñ Ms. Bass stated that Ð[i]t

appeared from my perspective she was squeezing his cheeks.Ñ The

incident l eft no marks on the studentÓs face. Ms. Bass reported

the incident to Ms. Dejarlais and Ms. Nave.

39 . Respondent generally denied the description of the

event provided by Ms. Bass , and specifically denied ever having

squeezed a studentÓs cheeks. Respondent testified that she

would occasionally hold a studentÓs face in her hands, and

direct the studentÓs eyes to hers while speaking. I n directing

eye contact, she exerted no pressure on the studentÓs cheeks or

face. That intervention technique was done to gain the

attention of the student and remove what may have been

distracting them. Based on her education and experience,

Respondent understood that technique to be an acceptable way to

d irect eye contact. Her testimony was more credible than that

of Ms. Bass .

40 . Ms. Rose agreed that it is an acceptable research -

based intervention to orient a student Ós face , deliver

instruction , and then provide reinforcement. In implementing

that Ðs hadowboxing technique ,Ñ it is a ppropriate to use physical

gu idance , i.e. holding the studentÓs face, to get eye contact.

That approach is Ð in the scaffolding of prompting, physical

prompting , Ñ and is not outside the scope of what the research

indicates is effective.

41 . Ms. Rose testified that with younger child ren it is

often more appropriate to start with the most prompting and fade

to the least prompting, an intervention described as Ðerrorless

learning.Ñ Using that model, physical prompting as a first

resort is an effective method and it is supported by the

research.

42 . Based on the foregoing, Petitioner has failed to prove

by a preponderance of the evidence that Respondent squeezed

students Ó faces as alleged in the notice of recommendation of

termination .

Allegations of Pulling Forcibly on the Arms of the Students

43 . Ms. Price provided the only evidence that Respondent

pulled forcibly on the arm of any student. The alleged incident

occurred after a student had eloped from the classroom . T he

student was sitting, cross - legged, on the landing outside the

portable classroom. The landing is not gated or otherwise

secured, and there is nothing to prevent one from walking from

the landing to the PE field or beyond .

44 . Ms. Price testified that Respondent got her body in

the doorway, grabbed the studen t by the arm, and pull ed him back

into classroom Ðmore forcefully than necessary.Ñ Ms. Price

characterized the event as a ggressive in nature. When asked

whether Respondent tried other methods to get the student to

return to the classroom, Ms. Price testi fied that ÐIÓm sure that

she did. She typically did , Ñ but that ÐI donÓt recall. I was

doing something else.Ñ Ms. PriceÓs lack of direct attention to

the incident leads the undersigned to question her account.

45 . Respondent testified that she ne ver pulled a child in

from outside through door. In cases of elopement, she would

u sually try to hold the student by the hand or wrist to guide

them back in , but n ever jerk ed or pull ed on the arm of any

student. Her testimony was more credible than that of

Ms. Price , and is accepted.

46 . Ms. Linson testified that in cases of elopement, it is

appropriate to take a student by the hand or wrist to guide them

back inside. She stressed that Ðwe have to be careful around

wrists and armsÑ to avoid concerns with dislocation of the

shoulder , but gave no suggestion that guiding by the wrist was

inappropriate .

47 . Ms. Linson also testified that if a student is trying

to run away, it is appropriate to apply the Ð childrenÓs control

position Ñ as taught as part of the CPI. In that intervention,

an adult, with his or her arms crossed and elbows locked , would

hold the student on the adultÓs side . The intervention is

appropriate only for small children, but is an approved

restraint. Ms. Linson recognized that hu man refl ex can

occasionally result in the restraint being imperfectly , but

still appropriately , administered .

48 . Ms. Atwood testified that Respondent occasionall y had

to move a student to time - out when the student had engaged in

behavior warranting discipline. She testified that Respondent

generally just guided the student, but that when the student

would not go willingly, she might put her arms through the

studentÓs arms and move the student to time - out. Ms. Atwood

took the required annual CPI course offered to teachers and TAs,

but that even w ith that one - day training, she was not sure how

to handle autistic students , and did not know whether the method

used by Respondent to mov e recalcitrant students to time - out was

correct or not. In any event, t he method described by

Ms. Atwood does not meet the allegation that Respondent Ð pulled

forcibly on the arms of the students .Ñ

49 . Respondent testified that she occasionally had to

physically move a student if he was injuring him self or others ,

and it was not possible to get others away. In such an

instance, Respondent and a TA would implement an approved

intervention to move the student to time out, but in no instance

would she or anyone else in her classroom pick a student up by

the arm, or otherw ise pull a student by the arm.

50 . Based on the foregoing, Petitioner has failed to prove

by a preponderance of the evidence that Respondent Ðpulled

forcibly on the arms of the studentsÑ as alleged in the notice

of recommendation of termination.

Allegat ion of Creating a Culture of Silence

51 . The allegation that Respondent created a culture of

silence was based on a statement, frequently repeated at various

places, that Ðwhat happens in Vegas, stays in VegasÑ or Ðwhat

happens in the classroom stays in the classroom.Ñ The

allegation suggested that Respondent made the statement with the

intent to discourage the TAs or others from reporting abusive

conduct.

52 . Ms. Atwood testified that she never heard the Ð VegasÑ

statement, but that in any event she was not intimidated by

Respondent , and was never discouraged from reporting

inappropriate activities.

53 . Ms. Nave overheard the ÐVegasÑ conversation at the bus

loop in the fall of 2011. The TAs and Respondent were laughing

about it, and she perceived n othing of importance or

significance about the statement. She understood it to apply to

Ð some silly things that were happening in the classroom. Ñ

54 . Ms. Johnson testified that she heard the ÐVegasÑ

statement, but was co nfused about it , and did not know what it

meant. Ms. Johnson offered no testimony to support a finding

that Respondent intended the statement to discourage her from

reporting abusive conduct .

55 . Ms. Price offered the only suggestion that the ÐVegasÑ

statement was intended to discourag e reporting unprofessional or

inappropriate activities in the classroom . Ms. Price testified

that she Ðtook itÑ to mean that Respondent was telling her not

to bring any complaints against her. She did not testify that

Respondent made any direct statement to that effect, but based

her testimony on her own subjective belief.

56 . Ms. Price did not mention Respondent having

discouraged the reporting of inappropriate conduct by means of

the ÐVegasÑ statement or otherwise in her May 2, 2012 , written

witness statement . Rather, she only raised it when her

supervisors at the school district told he r to think about it.

57 . Ms. PriceÓs testimony and written statement that

Respondent intended the oft - repeated ÐVegasÑ statement to be an

effort to mask abuse in t he classroom , taken as a whole and in

conjunction with her general degree of antipathy towards

Respondent as described above, is not credible.

58 . Respondent and others testified convincingly that the

concept of Ðwhat happens in Vegas, stays in VegasÑ wa s intended

to allow the teachers and TAs to discuss personal matters, and

even gossip about other school employees, without fear of their

comments being spread around. Respondent testified that the

statement was not intended to act as a shield for unprofe ssional

or abusive conduct occurring in the classroom. RespondentÓs

testimony is accepted.

59 . Based on the foregoing, Petitioner has failed to prove

by a preponderance of the evidence that Respondent created Ða

culture of silence . . . in your classro om which discouraged

other staff from coming forward with the allegations Ñ as alleged

in the notice of recommendation of termination .

Unpled Issues

60 . Ms. Atwood , Ms. Johnson, and Ms. Price each alluded to

a degree of ÐyellingÑ in RespondentÓs class that was greater

than they believed should occur in a ÐnormalÑ class. In her

written statement, Ms. Atwood stated that Ðat times [it] seemed

to be a little too much.Ñ Ms. Johnson felt that it Ðwas, to me,

over the top.Ñ However, no TA saw fit to report RespondentÓs

yelling at any time prior to May 2, 2012.

61 . No one described what was meant by ÐyellingÑ except in

the most general and subjective way. No witness testified as to

any standard or criteria regarding ÐyellingÑ in an ASD class

setting. No evidence was elicited as to whether ÐyellingÑ might

be appropriate at times. Respondent admitted that she raised

her voice on occasion to get the studentsÓ attention when the

classroom was loud or to make a point , but gave no suggestion

that it was contr ary to any standard . Although Ms. Linson

testified that ÐyellingÑ is not appropriate in any class, she

did not define Ðyelling ,Ñ nor d oes she have an autism

endorsement to her teaching certificate that might provide

additional weight to her testimony as a pplied to the unique

challenges of an ASD class.

62 . Despite the volume of the evidence and testimony

regarding Ðyelling,Ñ the fact is that it was not pled as a basis

for RespondentÓs termination. Had it been pled, the Petitioner

failed to prove, by a preponderance of the evidence, that the

ÐyellingÑ violated any standard warranting discipline against

Respondent.

63 . During the course of the proceedin g, references were

made to Respondent having moved the furniture from her

classroom. The evidence was conflicting as to whether the

removal of the furniture was known or authorized by the school

administration. However, it appears that there was a sound,

safety - based reason fo r removing the furniture and gradually

reintroducing it to the classroom.

64 . Despite the discussion regarding the removal of

furniture from the classroom, that issue was not pled as a basis

for RespondentÓs termination. Had it been pled, the Petitioner

failed to prove, by a preponderance of the evidence, that the

removal of the furniture violated any standard warranting

discipline against Respondent.

Discipline

65 . Petitioner has adopted, as policy section 6.361 of the

School Board of Lake County, an Employee Discipline Plan . The

plan provides that Ð[w]hen discipline of any employee becomes

necessary, such action should be in proportion to the employeeÓs

offense or misconduct . . . .Ñ

66 . The Employee Discipline Plan includes a Progressive

Discipli ne Method by which sanctions are scaled based on the

severity of the occurrence, and on whether it has recurred. The

purpose of the policy is to let employees know the nature of the

violation and provide an opportunity to correct the behavior.

67 . The Progressive Discipline Method includes five steps :

Counseling, Level I Reprimand, Level II R eprimand, Suspension

and Termination . The Method provides that:

Because of the severity in the loss of oneÓs

job employees should be terminated only

after thorough investigation. The

investigation should conclude that:

1. The em ployee did, in fact, commit the

act;

2. Evidence of guilt is available;

3. The employeeÓs entire work record,

positive and negative, has been

considered;

4. The same rules are applied uniformly to

other employees; and

5. The penalty of dismissal is reasonably

related to the seriousness of the offense.

68 . The Employee Discipline Plan provides that:

The Superintendent is not required to use

this Progressive Discipline Method and may

administer discipline at any level,

including termination, based on the nature

of the offense and the particular

circumstances. Examples of actions

resulting in immediate suspension or

dismissal include, but are not limited to,

the following: immorality, gross

insubordination, willful neglect of duty,

incompetence, substance abuse including

alcohol, being convicted or found guilty of

or pleading guilty to (regardless of

adjudication of guilt) any crime involving

moral turpitude.

69 . Respondent did not c ommit any of the specified

offenses that constitute Ðe xamples of actions resulting in

immediate suspension or dismissal .Ñ

70 . The School District did not exercise the Progressive

Discipline Method, but proceeded directly to termination of

Respondent.

71 . Ms. Dejarlais did not know why the progressive

disciplinary policy was not followed in RespondentÓs case . The

school officials elected to have the investigation done at the

county level, rather than at the school level. It was not

explained wh y such a n investigative procedure was undertaken, or

whether it was a deviation from the normal disciplinary practice

of the school.

72 . Since most of the allegations against Respondent were

not proven, including those that would normally be understood to

be t he most serious, there is no reasonable basis to disregard

PetitionerÓs adopted Employee Discipline Plan and Progressive

Discipline Method .

73 . Petitioner failed to prove, by a preponderance of the

evidence, that Respondent commit ted the acts alleged, with the

exception of a few instances in which she slapped studentsÓ

hands. The slaps, which were themselves mild, may have been

misconstrued defensive blocking techniques. In any event, the

instances were isolated, and formed no pa ttern of unprofessional

or inappropriate conduct.

74 . Petitioner failed to demonstrate that it considered

RespondentÓs entire work record, positive and negative , during

the investigation .

75 . Petitioner failed to demonstrate that it applied the

same ru les that led to RespondentÓs termination to other

employees . However, since most of the allegations against

Respondent were disproven, any analysis of the violations -- as

charged -- would be of limited value. As to the issue of

slapping hands, the only evidence in the record as to the

sanction for that type of incident was the testimony of

Ms. Linson, who was not aware of any instance in which a teacher

was terminated for slapping the hand of a student.

76 . Petitioner failed to demonstrate that the san ction of

termination was reasonably related to the seriousness of the

offense , especially given that most of the allegations upon

whic h the decision to terminate was based were not proven.

Given the isolated nature of the hand slaps, the mild nature of

th e slaps, and the possibility that the slaps were misperceived

blocking techniques, the undersigned finds that the sanction of

termination was not reasonably related to the seriousness of the

offense .

77 . The evidence demonstrates that, upon her removal f rom

the classroom, Respondent was assigned to the school Copy Center

at full pay and benefits pending the outcome of this proceeding.

CONCLUSIONS OF LAW

A. Jurisdiction .

78 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

t he parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes (2012) .

B. Standards

79 . A district school board is considere d a public

employer with respect to all employees of the school district .

§ 447.203(2), Fla. Stat . As such, a school board has the right

to direct its employees, take disciplinary action for proper

cause, and relieve its employees from duty because of la ck of

work or other legitimate reasons. § 447.209, Fl a . Stat .

80 . Section 1012.22(1), Florida Statutes, provides, in

part, that a district school board shall Ð[d] esignate positions

to be filled, prescribe qualifications for those positions, and

provide for the appointment, compensation, promotion,

suspension, and dismissal of employees . . . , subject to the

requirements of [chapter 1012].Ñ

81 . Respondent is an employee of Petitioner pursuant to a

Professional Service Contract of Employment entered und er the

authority of section 1012.33.

82 . Subsection 1012.33(1)(a), Florida Statutes, provides

that a teacher's contract Ðshall contain provisions for

dismissal during the term of the contract for just cause, Ñ which

includes misconduct in office as define d by rule of the State

Board of Education.

83 . Florida Administrative Code Rule 6A - 5.056 establishes

the criteria for suspension and dismissal of school personnel.

Subsection (2) of the rule provides that :

ÐMisconduct in OfficeÑ means one or more of

the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleagueÓs ability to

effectively perform duties.

84 . Rule 6B - 1.006 Principles of Professional Conduct for

the Education Profession in Florida, provides, in pertinent

part, that:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/ or to the studentÓs mental

and/ or physical health and/or safety.

85 . PetitionerÓs Policy 6.301 requires PetitionerÓs

employees to Ðadhere to the Code of Ethics of the Education

Profession in Florida.Ñ

C. The Burden and Standard of Proof .

86 . Petitioner seeks to terminate Respondent's employment,

which does not involve the loss of a license or certification .

Thus, Petitioner has the burden of proving the allegations in

its Administrative Complaint by a preponderance of the evidence .

Cropsey v. Sch. Bd. of Manatee Cnty. , 19 So. 3 d 351 , 355 (Fla.

2 d DCA 2009 ) ; Cisneros v. Sch. Bd. of Dade Cnty. , 990 So. 2d

1179 , 1183 (Fla. 3d DCA 2008 ) ; McNeill v. Pinellas Cnty. Sch.

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

Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v.

Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

87 . The preponderance of the evidence standard Ðis defined

as Ò the greate r weight of the evidence, Ó Black's Law Dictionary

1201 (7th ed. 1999), or evidence that Ò more likely than not Ó

tends to prove a certain proposition. Ñ Gross v. Lyons , 763 So.

2d 276, 289 n.1 (Fla. 2000) . S ee also Haines v. DepÓt of Child.

& Fams . , 983 So . 2d 602, 606 (Fla. 5th DCA 2008) .

88 . The allegations of fact set forth in the charging

document are the facts upon which th is proceeding is predicated.

Trevisani v. DepÓt of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005). See also Cottrill v. DepÓt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). In this case, the Administrative

Complaint alleged that Respondent Ðslapped, squeezed faces and

pulled forcibly on the arms of the studentsÑ and created Ða

culture of silence . . . in your classroo m which discouraged

other staff from coming forward with the allegations.Ñ Thus,

the scope of this proceeding is properly restricted to those

matters as framed by Petitioner. M.H. v. DepÓt of Child. & Fam.

Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

89 . Petitioner failed to prove, by a preponderance of the

evidence, that Respondent squeezed the face of any student,

pulled forcibly on the arms of any student , or cr eated a culture

of silence that discouraged staff from reporting incidents of

abuse or other improper conduct.

90 . Petitioner prove d , by a preponderance of the evidence,

that Respondent slapped the hands of one or more students over

the course of the 2011 - 2012 school year on, at most, a few

occasions. The incidents occurred when a student took something

that was not his, tried to place his hands on or hurt another

student , or struck Respondent. The in cidents were isolated and

mild , and could have been defensive technique s that were

misperceived by the observer. There was no evidence that the

incidents were harmful to any studentÓs learning , adversely

affected any studentÓs mental or physical health, or compromised

any studentÓs safety.

91 . The evidence produced at the hearing demonstrate s that

Petitioner did not have just cause to terminate the employment of

Respondent for misconduct in office.

92 . T he facts and circumstances of this case, considered

in their totality, warrant the imposition of a penalty

commensu rate with the severity of the offense proven, and

consistent with PetitionerÓs Employee Discipline Plan and

Progressive Discipline Method , adopted as Policy 6.361. The

recommendation that follows is made taking into account all of

the facts and circumstances e stablished in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Lake County School

Board, enter a final order :

(a) dismissing those allegations in the notice of

recommendation of termination that Respondent squeezed faces ,

pulled forcibly on the arms of the students , and created a

culture of silence which discouraged other staff from coming

forward with allegations of misconduct;

(b) finding that Res pondent slapped the hands of students,

but that such incidents were isolated, mild, and may have been a

misperception of an otherwise acceptable defensive blocking

technique;

( c ) reinstat ing Respondent to a position equivalent to

that previously held wit h the Lake County School District ;

( d ) imposing the Step I sanction of counseling as set

forth in PetitionerÓs Progressive Discipline Method; and

(e) to the extent Respondent lost wages or benefits , award

full back pay and benefits from the time she was re moved from

the classroom in May 2012 , until the date of her reinstatement.

DONE AND ENTERED this 14th day of November , 201 2 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 14th day of November , 201 2 .

COPIES FURNISHED :

Stephen W. Johnson, Esquire

McLin and Burnsed , P.A.

Post Office Box 491357

1000 West Main Street

Leesburg, Florida 34749 - 1357

Alfred Truesdell, Esquire

Jill S. Schwartz and Associates, P.A.

Suite 212

655 West Morse Boulevard

Winter Park, Florida 32789 - 3745

Susan Moxley, Ed.D., Superintendent

Lake County School Board

201 West Burleigh Boulevard

Tavares, Florida 32778 - 2496

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, 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 Order should be filed with the agency that

will issue the Final Order in this case.