12-002755TTS St. Lucie County School Board vs. Ellen Woodcock Status: Closed Recommended Order on Thursday, January 24, 2013.

Summary: Petitioner failed to prove by a greater weight of the evidence that Respondent hit one of her pre-kindergarten students. Recommend dismissal of charges and award of back salary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 12-2755TTS

)

ELLEN WOODCOCK, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on October 10, 2012, in Ft. Pierce, Florida, and on

November 9, 2012, by video teleconference at sites in

Tallahassee and Port St. Lucie, Florida, before Administrative

Law Judge Edward T. Bauer of the Division of Administrative

Hearings.

APPEARANCES 1 /

For Petitioner: Elizabeth Coke, Esquire

Leslie Jennings Beuttell, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Jeffrey S. Sirmons, Esquire

Johnson and Sirmons, LLP

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue in this proceeding is whether just cause exists

to terminate Respondent's employment with the St. Lucie County

School Board.

PRELIMINARY STATEMENT

On or about July 18, 2012, Petitioner St. Lucie County

School Board ("Petitioner" or "School Board") provided written

notification to Respondent that it intended to initiate

proceedings to terminate her employment. Thereafter, on

August 15, 2012, Petitioner executed a "Statement of Charges and

Petition for Termination" ("Petition"), which alleged that on

March 14, 2012, Respondent struck one of her pre-kindergarten

students on the back of the head, and that she was therefore in

violation of multiple rules of the St. Lucie County School

Board.

Respondent timely requested a formal administrative hearing

to contest Petitioner's action, and, on August 16, 2012, the

matter was referred to the Division of Administrative Hearings

("DOAH") for further proceedings.

As noted above, the final hearing was held on October 10

and November 9, 2012, during which Petitioner called the

following witnesses: Ucola Barrett-Baxter 2 / ; Susan Ranew; and

Tammy DePace. Petitioner's Exhibits 2 through 5 and 7 through

19 were admitted into evidence. 3 / Respondent testified on her

own behalf and called two witnesses, Shameria Baker and Fred

Bradley. Respondent introduced five exhibits into evidence,

numbered 1-3, 7, and 9.

The final hearing transcript, which consists of two

volumes, was filed with DOAH on November 21, 2012, and

December 3, 2012. Pursuant to the parties' joint request, the

deadline for the submission of proposed recommended orders was

extended to January 15, 2013. Both parties thereafter submitted

proposed recommended orders, which have been considered in the

preparation of this Recommended Order.

Unless otherwise noted, citations to the Florida Statutes

refer to the 2012 version.

FINDINGS OF FACT

A. The Parties

1. Petitioner is the authorized entity charged with the

responsibility to operate, control, and supervise the public

schools within St. Lucie County, Florida.

2. At all times material to this proceeding, Respondent

was employed by Petitioner as a teacher at Parkway Elementary

School in the St. Lucie County School District.

3. During the 2011-2012 school year, Respondent was

assigned to a class of 14 pre-kindergarten children, all of whom

received exceptional student education ("ESE") services.

B. Incident of March 14, 2012

4. As noted previously, this case arises from an

interaction between Respondent and one of her students, G.M.,

during the morning of March 14, 2012.

5. At approximately 9:30 a.m. on that date, Respondent and

her paraprofessional, Shameria Baker, assembled the students

outside their classroom in preparation for recess. Prior to

departing for the school playground, Respondent selected one of

the students to act as the "line leader," and chose a second

student, G.M., to pull a small cart that held playground toys.

6. Once the students were suitably lined up, Respondent

and Ms. Baker began to escort the children towards the

playground area, with Ms. Baker situated near the front of the

line and Respondent toward the back, in close proximity to G.M.

7. While en route to the school playground, the students,

Respondent, and Ms. Baker proceeded down a path that immediately

adjoined a volleyball area (on the left) and a basketball court

(on the right). For reasons known only to him, G.M. veered from

the walkway and headed——with the cart in tow——towards the

volleyball net. 4 /

8. Respondent, who was attending to another child at that

time, attempted, unsuccessfully, to stop G.M. with verbal

redirection. Undeterred, G.M. continued onward and entangled

the cart in the volleyball net, which had been set at a low

height.

9. At that point, Respondent walked over to G.M. (who was

crying), removed the cart from the net, and handed off the cart

to another child. Seconds later, and in an effort to motion

G.M. towards the walkway, Respondent placed her hand——in a

benign and wholly appropriate fashion——on G.M.'s upper back

area. 5 / At no point did Respondent hit or strike G.M.

10. Unbeknownst to Respondent, her interaction with G.M.

had been witnessed from an indeterminate 6 / distance by the school

principal, Ucola Barrett-Baxter. (Ms. Barrett-Baxter's vantage

point was from behind the line of students, who were walking in

the opposite direction.) Believing, erroneously, that she had

observed Respondent hit G.M. on the head, Ms. Barrett-Baxter

proceeded to the administration building and instructed the

school clerk to find Respondent in the playground area and send

her to the office.

11. As she awaited Respondent's arrival, Ms. Barrett-

Baxter telephoned Susan Ranew, the School Board's Assistant

Superintendent for Human Resources. During the call, Ms.

Barrett-Baxter advised Ms. Ranew of the event she believed she

had witnessed and discussed the need to contact the Florida

Department of Children and Families ("DCF").

12. After she completed the call, Ms. Barrett-Baxter

summoned to her office the school's ESE chairperson, Tammy

DePace. A brief discussion ensued, during which Ms. Barrett-

Baxter informed Ms. DePace of the allegations. Respondent

entered the room moments later, at which point Ms. Barrett-

Baxter, who was visibly angry, accused Respondent of committing

the improper act (a hit) she thought she had witnessed. The

witnesses' accounts as to what occurred next vary considerably:

Ms. DePace testified that Respondent initially denied any

wrongdoing, yet later admitted, during the same conversation, to

hitting 7 / G.M. after being confronted by Ms. Barrett-Baxter a

second time; Ms. Barrett-Baxter testified, in contrast, that

Respondent did not deny the misconduct and stated, "yes, it did

happen," or words to that effect, upon being informed of the

allegations; Respondent, offering the third (and credible)

version of what occurred, testified that she was in a state of

shock during the conversation, that she did not knowingly admit

to any wrongdoing, and that any affirmative response on her part

(e.g., "yes" or "okay") resulted from a misunderstanding as to

the nature of the conduct of which she was accused.

13. In the ensuing hours, Fred Bradley, 8 / a DCF employee,

initiated an investigation concerning that allegations raised by

Ms. Barrett-Baxter. An examination of G.M., which Mr. Bradley

conducted during the evening of March 14, 2012, yielded no sign

of physical injury. 9 / The following day, Mr. Bradley interviewed

Respondent, who denied the allegations, as well as Ms. Barrett-

Baxter, who described (and physically demonstrated) Respondent's

conduct as a "shove "——as opposed to a "hit," the precise conduct

alleged in the Petition. 10 / Significantly, Ms. Barrett-Baxter

did not advise Mr. Bradley of Respondent's supposed confession

from the previous day. 11 /

C. Determinations of Ultimate Fact

14. The greater weight of the evidence fails to establish

that Respondent is guilty of violating School Board Policy

6.301(2).

15. The greater weight of the evidence fails to establish

that Respondent is guilty of violating School Board Policy

6.301(3)(b).

16. The greater weight of the evidence fails to establish

that Respondent is guilty of violating School Board Policy

6.302.

CONCLUSIONS OF LAW

A. Jurisdiction

17. DOAH has jurisdiction over the subject matter and

parties to this case pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

B. Notice of Charges / Burden of Proof

18. A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation."

Jacker v. Sch. Bd. of Dade Cnty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J., concurring).

19. Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dismissal may

be predicated. See Cottrill v. Dep't of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg. ,

625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Dep't of

Prof'l Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

20. In an administrative proceeding to suspend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each element of the charged offense. McNeill

v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996); Sublett v. Sumter Cnty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995). The preponderance of the evidence standard

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

evidence that "more likely than not" tends to prove a certain

proposition. See Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000); see also Williams v. Eau Claire Pub. Sch. , 397 F.3d 441,

446 (6th Cir. 2005)(holding trial court properly defined the

preponderance of the evidence standard as "such evidence as,

when considered and compared with that opposed to it, has more

convincing force and produces . . . [a] belief that what is

sought to be proved is more likely true than not true").

21. The instructional staff member's guilt or innocence is

a question of ultimate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

C. Grounds for Termination

22. In its Petition, the School Board advances three

theories for terminating Respondent's employment: a violation

of School Board Policy 6.301(2), which requires that each member

of the instructional staff abide by the "Code of Ethics of the

Education Profession in Florida, the Principles of Professional

Conduct for the Education Profession in Florida, and the

Standards of Competent and Professional Performance in Florida";

a violation of School Board Policy 6.301(3)(b), which

proscribes, among other conduct, striking another person; and

School Board Policy 6.302, which prohibits members of the

instructional staff from committing any acts of violence, abuse,

or unwarranted touching.

23. Each of the School Board's charges is predicated, of

course, upon the allegation in the Petition that Respondent

"hit" G.M. with an open hand on the back of the child's head.

The School Board, however, failed to prove this essential

allegation by a preponderance of the evidence. Thus, all of the

charges against Respondent necessarily fail, as a matter of

fact. Due to this dispositive failure of proof, it is not

necessary to render additional conclusions of law. 12 /

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board enter a final

order: (a) exonerating Respondent of all charges brought

against her in this proceeding; (b) providing that Respondent be

reinstated to the position from which she was suspended without

pay; and (c) awarding Respondent back salary, plus benefits,

that accrued during the suspension period, together with

interest thereon at the statutory rate.

1 0

DONE AND ENTERED this 24th day of January, 2013, in

Tallahassee, Leon County, Florida.

EDWARD T. BAUER

Administrative Law Judge Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of January, 2013.

ENDNOTES

1/ The final hearing transcript erroneously designates Ms. Coke

and Ms. Beuttell, both of whom represent the School Board, as

counsel for Respondent. (Inversely, Respondent's attorney,

Mr. Sirmons, is listed as the School Board's counsel.)

2/ The final hearing transcript incorrectly references

Ms. Barrett-Baxter as "Baxter-Baker."

3/ The index of admitted exhibits, which is found on page three

of the October 10, 2012, transcript, fails to list Petitioner's

exhibits 4 and 16, both of which were admitted without

objection. See Transcript of October 10, 2012, proceedings at

page 13, lines 7-8; page 14, line 3; and page 16, lines 17-24.

4/ Respondent's assertion that G.M. proceeded into the

volleyball area is corroborated by the testimony of Ms. Baker.

See Transcript of October 12, 2012, proceedings at p. 151.

5/ In so finding, the undersigned credits Respondent's testimony

over that of Ms. Barrett-Baxter's.

1 1

6/ The only evidence concerning Ms. Barrett-Baxter's proximity

to Respondent and G.M. comes from Ms. Barrett-Baxter herself,

who testified during the final hearing that she stood

"approximately 28 feet" away. See Transcript of October 12,

2012, proceedings at p. 46. Notably, however, Ms. Barrett-

Baxter was unable to offer such a precise——or, for that matter,

any ——numerical figure during her sworn deposition a mere 13 days

earlier:

A. I saw Ms. Woodcock walking towards the

playground area with her classroom. I saw a

student to the right of Ms. Woodcock

screaming. And I saw Ms. Woodcock hit the

student in the back of the head, say "move,"

and I saw the student sort of move forward.

Q. Okay. Where were you standing?

A. Behind her.

Q. How far behind her?

A. Some yards away.

I'm not really good

with measurements.

Pet. Ex. 17, p. 13-14 (emphasis added). Owing to this

significant (and unexplained) inconsistency, Ms. Barrett-

Baxter's testimony concerning this issue is rejected.

7/ Ms. DePace's unequivocal claim during the final hearing that

Respondent confessed to "hitting" G.M. is at odds with her prior

acknowledgement, made during a sworn deposition, that she could

not remember whether Respondent admitted to hitting, striking,

or simply pushing the child:

Q. And was that what the principal said?

Did the principal state . . . "I saw you hit

the child in the back of the head" or –

A. I'm sorry – I'm telling you I really

don't know the exact words she used, if it

was "strike," "hit," "push

" a child. . . .

You know, it's one of those words. And that

the boy moved forward, jolted forward.

1 2

Pet. Ex. 15, p. 84 (emphasis added). In light of this

substantial discrepancy, Ms. DePace's testimony has not been

credited by the undersigned.

8/ Mr. Bradley, who has served as a DCF investigator for over

five years, was previously employed as a police officer (for ten

years) and, subsequent to that, a death penalty investigator

with the Mid-Atlantic Innocence Project.

9/ To be sure, Petitioner was not required to adduce evidence of

physical injury to sustain its charge that Respondent "hit" G.M.

However, visible signs of injury could have served to

corroborate Ms. Barrett-Baxter's final hearing testimony——which,

as detailed elsewhere in this Recommended Order, lacked

persuasive force because it was: inconsistent with previous

testimony she offered concerning a material issue (i.e., her

proximity to Respondent and G.M.); at odds with the credible

testimony of Mr. Bradley, who recalls that Ms. Barrett-Baxter

described, and demonstrated, a "shove"; and inconsistent with

the credible testimony of Ms. Baker, who confirms G.M.'s

presence near the volleyball net.

10/ Ms. Barrett-Baxter's testimony to the contrary——i.e., that

at no time has she described the event as anything but a "hit"——

is rejected in favor of Mr. Bradley's account, which is credited

for two principal reasons. First, Mr. Bradley is, as best the

undersigned can determine, disinterested with respect to the

outcome of this proceeding, while Ms. Barrett-Baxter, on the

other hand, admits that she is "bothered" by Respondent's

decision to contest her termination. Consider the following

exchange between Ms. Barrett-Baxter and Petitioner's counsel:

Q. How has your opinion of Ms. Woodcock

changed from March 14th to today? Has your

opinion of Ms. Woodcock changed from March

14th to today?

A. I would say yes.

Q. And can you explain --

A. The mere fact that we're here today for

the sole purpose of questioning whether I

saw what I saw what I know I saw bothers me ,

and I just feel that it's an integrity

issue.

1 3

Transcript of Oct. 10, 2012, proceedings at p. 50 (emphasis

added). Further, it is unlikely that an abuse investigator

(particularly one with Mr. Bradley's professional background)

would confuse a "hit" with a "shove."

11/ Although the outcome of the DCF investigation is not

relevant to this proceeding, it is noted, parenthetically, that

the matter was closed with no indications of abuse.

12/ As a final matter, Respondent moves for attorney's fees

pursuant to the following statutory provisions: section 57.105,

Florida Statutes, which authorizes an award of fees in civil and

administrative proceedings where the losing party did not act in

good faith and knew or should have known that a claim was not

supported by the necessary material facts and/or by application

of then-existing law; section 120.569(2)(e), Florida Statutes,

which authorizes reimbursement of attorney's fees "incurred

because of the filing of [a] pleading, motion, or other paper"

that was submitted by a party for an improper or frivolous

purpose; section 120.595, Florida Statutes, which requires an

award of fees where the administrative law judge determines that

a party participated in a proceeding for an improper purpose,

which is defined as "participation in a proceeding . . .

primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needless increase the cost of litigation

. . . ."; and/or section 1012.26, Florida Statutes, which

obligates a district school board to reimburse the reasonable

legal expenses incurred by employees who successfully defend

civil or criminal actions that arise "out of and in the course

of the performance of assigned duties and responsibilities."

Section 1012.26 does not apply in situations where a school

district employee successfully defends a termination or

suspension action. Silver v. Duval Cnty. Sch. Bd. , 92 So. 3d

237, 239 (Fla. 1st DCA 2012)(Marstiller, J., concurring)

("[S]ection 1012.26, Florida Statutes, by its terms, does not

require a school district to reimburse an employee for legal

expenses incurred in successfully defending an employment

termination (or suspension) action in the administrative

forum."); Weatherman v. Sch. Bd. of Seminole Cnty. , 599 So. 2d

220, 222 (Fla. 5th DCA 1992). With respect to the other

statutes cited by Respondent, the record is devoid of evidence

that the School Board participated in this matter for an

improper purpose, filed a pleading for a frivolous or improper

purpose, or pursued Respondent's termination in the absence of

supporting facts or law. Indeed, as to the last point, the

1 4

testimony of Ms. Barrett-Baxter and Ms. DePace, although

ultimately rejected by the undersigned, provided an ample basis

upon which to initiate the present action. See Siegel v. Rowe ,

71 So. 3d 205, 212 (Fla. 2d DCA 2011)("Where, as in this case,

the losing party presents competent, substantial evidence in

support of the claims . . . and the trial court determines the

issues of fact adversely to the losing party based on

conflicting evidence, section 57.105(1) does not authorize an

award of attorney's fees."). Respondent's Motion for Attorney's

Fees is therefore DENIED.

COPIES FURNISHED :

Elizabeth Coke, Esquire

Leslie Jennings Beuttell, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

Jeffrey S. Sirmons, Esquire

Johnson and Sirmons, LLP

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

Michael Lannon, Superintendent

St. Lucie County Public Schools

4204 Okeechobee Road

Fort Pierce, Florida 34947

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Tony Bennett, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

1 5

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.

1 6