13-003859TTS Duval County School Board vs. Michael Green Status: Closed Recommended Order on Friday, June 27, 2014.

Summary: Teacher's act of twice punching a student in the face during a hallway altercation is sufficient grounds for termination without progressive discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 3859TTS

MICHAEL GREEN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 18 and 19, 2013 , in Jacksonville , Florida, before

Lawrence P. Stevenson, the designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kelly Hebden Papa , Esquire

Gaby Young, Esquire

Office of the General Counsel

City Hall, St. James Building

117 West Duval Street, Suite 480

Jacksonville , Florida 3 2202

For Respondent: Tishia Anita Dunham , Esquire

inity Lane North, Unit 7209

St. Petersburg , Florida 33716

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Duval County School

Board, may terminat e Respondent's employment as an instructional

employee based upon the conduct alleged in the letter titled

Ð Notice of Termination of Employment Contract and Immediate

Suspension Without Pay Ñ (the Ð Notice Ñ ) from Superintendent of

Schools Nikolai P. Vitti to Respondent dated August 30, 2013 .

PRELIMINARY STATEMENT

On or about August 30, 2013 , Respondent Michael Green

received a copy of the Notice, which set forth the following

allegations in support thereof , in relevant part :

On 8/28/13, you entered the gymnas ium and

observed a female student cursing and

shouting at a teacher. You approached the

student and asked her to exit the gymnasium

in an effort to calm her down. The student

continued to shout and use profanity before

exiting the gymnasium. Upon review ing the

surveillance video, you were observed

placing your hand on the studentÓs shoulder

as she walked toward the opposite wall. You

walked toward the student and stood face to

face with her. The student pushed you in

your chest area with both hands. Y ou

responded by striking the student in the

face. Next, the student swung at you and

you responded by striking her with a fist

directly in the face. This resulted in

injury to her face.

You were subsequently arrested by the

Jacksonville SheriffÓs Office for Child

Abuse, a felony, in violation of Florida

Statutes 827.03(1)(a).

Your conduct is in direct violation of the

below regulation(s) relating to the public

school system.

Specifically, the following portions of the

Code of Ethics were violated:

6 A - 10.080(1) -- The educator values the

worth and dignity of every person, the

pursuit of truth, devotion to excellence,

acquisition of knowledge, and the nurture of

democratic citizenship. Essential to the

achievement of these standards are the

freedom to learn and to teach and the

guarantee of equal opportunity for all.

6A - 10.080(2) -- The educatorÓs primary

professional concern will always be for the

student and for the development of the

studentÓs potential. The educator will

therefore strive for pr ofessional growth and

will seek to exercise the best professional

judgment and integrity.

6A - 10.080(3) -- Aware of the importance of

maintaining the respect and confidence of

oneÓs colleagues, of students, of parents,

and of other members of the communi ty, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

Additionally, your conduct violates the

following Principle of Professional Conduct :

6A - 10.081(3)(a) -- Shall make reasonable

effort to protect the student from

cond itions harmful to learning and/or to the

studentÓs mental and/or physical health

and/or safety.

Further, this conduct also falls within the

def i nition of ÐcauseÑ as provided in s ection

1012.33(1)(a), Florida Statutes. Just cause

includes, but is not limi ted to, the

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency . . .

gross insubordination, willful neglect of

duty, or being convicted or found guilty of,

or entering a plea of guilty t o, regardless

of adjudication of guilt, any crime

involving moral turpitude.

The Notice informed M r. Green of his right to a formal

hearing to contest the factual allegations recited in the

Notice, and, should he invoke h is right to a formal hearing,

that the Duval County School Board (the Ð School Board Ñ ) would

act to suspend h im from employment without pay as of

September 4, 2013 , pursuant to s ection 1012.33, Florida

Statutes. On September 9, 2013 , Mr. Green timely invoked h is

right to a formal hearing v ia a letter from h is counsel to

Dr. Vitti .

On October 4, 2013 , the School Board referred the matter to

the Division of Administrative Hearings ( Ð DOAH Ñ ) for the

assignment of an Administrative Law Judge and t he conduct of a

formal hearing. Th e matter w as scheduled for final hearing on

December 18 and 19, 2013, on which dates it was convened and

completed .

At the hearing, the School Board presented the testimony of

Javonne Johnson, a security guard at Eugene J. Butler Middle

School (ÐButler Middle Scho olÑ), where Mr. Green taught and

where the incident in question occurred; Det ective Don

Schoenfeld of the Duval County Public School Police Department

(ÐDCPSPDÑ); Maurice Nesmith, principal of Butler Middle School;

Chief David Coffman of the DCPSPD; and So nita Young, chief human

resources officer for the School Board. The School Board's

Exhibits 1 through 20 were admitted into evidence by stipulation

of the parties . Respondent testified on his o wn behalf and

presented the testimony of Brittany Rose Knadle , a teacher at

Butler Middle School; Ellis McSwain, Jr., a BEST Academy site

coach at Dupont Middle School and friend of Mr. Green; and

Khristopher Henderson, a school improvement specialist with the

Department of Education and a friend of Mr. Green . Resp ondent's

Exhibit s 1 , 2 and 6 were admitted into evidence by stipulation.

The three - volume Transcript of the hearing was filed at

DOAH on January 14, 2014 . The parties Ó Proposed Recommended

Orders were filed on January 22, 2014.

FINDINGS OF FACT

1. Resp ondent Michael Green has been employed by the

School Board as a teacher since 2004 . He is a certified

instructional employee covered by the Duval County Teacher

Tenure Act, c hapter 21197, Laws of Florida (1941), as amended

( Ð Tenure Act Ñ ) and the Collectiv e Bargaining Agreement ( Ð CBA Ñ )

between Duval Teachers United and the School Board for 2008 -

2011 . At the time of the events at issue in this proceeding,

Mr. Green was assigned to Butler Middle School as a health and

physical education teacher and athletic director .

2. At the time of the incident in question, which was at

the beginning of the 2013 - 2014 school year, S.J. was a 14 - year -

old girl who was a student at Butler Middle School. She was

starting her second year in the seventh grade. Based on the

se curity video that was admitted into evidence, S.J. was very

large for her age , nearly the size of Mr. Green .

3. Principal Maurice Nesmith knew S.J. and characterized

her as one of the worst of the 588 students at Butler Middle

School. S.J. had a docume nted history of disciplinary problems

for threats and acts of violence and for verbal and physical

aggression toward other students, staff, teachers, and even

administrators at Butler Middle School. Mr. Nesmith frequently

received complaints from teachers , administrators and staff that

S.J. was rude, disrespectful, defiant, and resistant to

instruction.

4. School security guard Javonne Johnson testified that he

was familiar with S.J. and frequently had to deal with her

because she would be outside o f her assigned classroom without

permission. Mr. Johnson stated that it was hard to make S.J.

calm down when she was agitated.

5. On January 30, 2013, S.J. caused what Mr. NesmithÓs

Discipline Incident report termed Ða major disruptionÑ in the

Butler Mid dle School cafeteria. S.J. was angered when a smaller

male student snitched on her for throwing food. She commenced

hitting the child in the head. She punched him several times

before a security guard and assistant principal could intervene.

S.J. then proceeded to fight the adults until they managed to

corral her into Mr. NesmithÓs office. According to

Mr. NesmithÓs report, S.J. stated to him that Ðshe didnÓt give a

fuck, she donÓt care about this shit.Ñ Officer Frederick

Robinson of the DCPSPD submit ted a written statement confirming

that S.J. told the adults, ÐI donÓt give a fuck about nobody, I

donÓt give a fuck about the police,Ñ and ÐNo one is going to

tell me what the fuck to do or say.Ñ

6. As a result of this incident, and many before it,

Mr. N esmith referred S.J. to an alternative school for the

remainder of the 2012 - 2013 school year.

7. Mr. Nesmith testified that when S.J. returned to Butler

Middle School for the 2013 - 2014 school year there was no change

in her behavior. Though she was not disciplined for her role in

the incident with Mr. Green, S.J.Ós return to Butler Middle

School was nonetheless short - lived. By early October 2013, S.J.

had again been referred to an alternative school because of

repeated incidents, including one in which she threatened to

kill another student (ÐI got bullets for your assÑ).

8. The School Board placed into evidence video taken by

security cameras in the gym and in the hallway outside the gym.

There is no sound on the videos. Visual aspects of the findin gs

as to events in the gym and in the hallway on the morning of

August 28, 2013, are mostly based on the security video.

Findings as to what was said in the gym and in the hallway that

morning are based on the credible testimony of witnesses.

9 . Brittany Knadle is a first - year physical education

teacher assigned to Butler Middle School . On August 28, 2013,

she taught a large physical education class of approximately 60

students during first period in the schoolÓs gymnasium. S.J.

was enrolled in Ms. Knad leÓs first period class. Although it

was only the second week of school, Ms. Knadle was already

having problems with S.J. Ós truculence and had complained to

Mr. Nesmith about S.J.Ós behavior in her class .

10 . On August 28, 2013, S.J. was disrupting Ms. K nadleÓs

class , wandering through the lines of students who in the

security video appear to be lackadaisically performing

calisthenics on the gym floor . Mr. Green entered the gymnasium

in his capacity as athletic director to ask Ms. Knadle about

coaching a sport. Ms. Knadle agreed to coach softball.

11 . Mr. Green testified that Ms. Knadle told him that she

was having problems with S.J.Ós refusal to follow directions.

Mr. Green advised her to make S.J. stand against the wall and to

give her a grade of z ero for the day for nonparticipation in the

class activity. Mr. Green stated that he had never met S.J.

prior to August 28, 2013, but that he had heard about her

physical assault on an administrator and had heard she was rude,

disruptive, and disrespectfu l to authority figures.

1 2 . Mr. Green left the gym but returned a short time later

with a form for Ms. Knadle to sign regarding the softball

coaching position . Mr. Green observed S.J. continuing her

disruptive behavior, wandering around the gym, walking through

student lines and not participating in class. Mr. Green

believed she was creating a safety hazard for the other

students. He instructed S.J. to gather her belongings because

he was taking her to the deanÓs office.

13 . S.J. slowly strolled to the spot on the gym floor

where her backpack lay. She stood over the backpack and then

rummaged through it for several seconds. She then picked up the

backpack and walked toward Mr. Green to exit the gym.

14. Mr. Green testified that while S.J. had been

be lligerent and cursing during the entire incident, she appeared

even more irate, threatening and confident after picking up her

bag, saying to him and Ms. Knadle , ÐYou all are going to make me

fuck one of you up.Ñ

15. The security video shows S.J. and Mr. Green exiting

the gym and into the school hallway. Mr. Green places his hand

on S.J.Ós shoulder. She walks straight across the hallway to

the opposite wall. S.J. turns to face Mr. Green and drops her

backpack. Mr. Green moves to within inches of S.J., very nearly

nose to nose.

16. At this point, S.J. pushes Mr. Green away with both

hands. Mr. Green responds with a right hand strike to S.J.Ós

face. The blow appears to be a glancing one. S.J.Ós head snaps

to the right but she quickly recovers and move s toward Mr. Green

with her arms flailing. Mr. Green backs up a step or two,

braces himself with his right foot, draws back his right hand

into a fist, then pushes off the right foot to deliver a full -

force punch to S.J.Ós face.

17. S.J.Ós head snaps vio lently back to the right and she

staggers backward into the wall. Remarkably, S.J. once again

shakes off the blow and again charges forward toward Mr. Green.

At this point, Mr. Green wraps S.J. in his arms and takes her

down to the floor. He holds her d own for a few seconds until

security arrives to take over.

18. Mr. Johnson was the guard who took over and restrained

S.J. He tried to calm her but she continued to yell and scream,

cursing and threatening Mr. Green , saying she was going to Ðkick

h i s a ss.Ñ Mr. Johnson noted no marks on S.J.Ós face and refused

to believe S.J.Ós repeated statements that Mr. Green Ðhit a girl

. . . h e hit me in my face.Ñ

19 . Officer Robinson of the DC PS PD handcuffed S.J. and

placed her in the back of his patrol car to await arrest.

Mr. Nesmith, who was visiting an upstairs classroom, was called

via walkie - talkie and informed that Officer Robinson needed him.

Mr. Nesmith came down immediately and spoke to Officer Robinson

at his patrol car. Officer Robinson told Mr. N esmith that he

was arresting S.J. for battery on a School Board employee, and

explained what happened in the hallway. Mr. Nesmith told

Officer Robinson that there was a security camera in that

hallway. They had a security guard wait outside with S.J. whi le

they went inside to view the security video with Mr. Green, who

had been waiting in Mr. NesmithÓs office.

20. The three men reviewed the video. Mr. Nesmith

testified that when he saw the video, he dropped his head and

asked Mr. Green, ÐWhat were you d oing?Ñ 1 / Mr. Nesmith

immediately contacted the School BoardÓs professional standards

office and his region chief to report the incident. He then

took Mr. Green to the principalÓs conference room and instructed

him to write a statement.

21. The statement that Mr. Green wrote in Mr. NesmithÓs

conference room read as follows:

I , Michael Green , entered the gymnasium to

speak with Coach Knadle. At the time [S.J.]

a student in Coach KnadleÓs class was

causing a disruption. The student was

standing walking th rough the students

cursing as they were sitting in roll call on

the floor. [S.J.] was asked to get her

books so I could escort her to the office to

settle down. She began cursing loud causing

a seen [sic] as she walked out of the

gymnasium. I then stopp ed her in the

hallway to keep her from cursing loud

disrupting the learning environment. As she

stopped in the hall she continued to curse

and yell at me, saying fuck you , you ainÓt

nobody. I told her to quiet down and she

pushed me. Then she started to swing at me.

In my defense I tried to stop her arms from

hitting me. I tried to keep her at a

distance. She stopped for second [sic] then

she started to attack me again. I then had

to take her to the ground to keep her from

attacking me.

22. It is no table that this statement makes no mention of

the fact that Mr. Green struck S.J. in the face twice during the

altercation. Mr. Green would later contend that he feared S.J.

had a weapon when she attacked him , but he made no mention of

such a fear in this statement, written within two hours after

the incident.

23. Mr. Green was taken into custody by DC PS PD for

suspected child abuse. He was interviewed by Detective Don

Schoenfeld, who had reviewed the security video. Mr. Green told

Det ective Schoenfeld t hat he did not remember hitting S.J.

After the interview, Det ective Schoenfeld had Mr. Green write a

statement. 2 / Mr. GreenÓs statement to Det ective Schoenfeld read

as follows:

I Michael Green entered the gy m nasium 3 / to

speak with another teacher. The t eacher was

having difficulty getting the student to

follow directions. The student began to

walk around and throughout the other

students causing a safety issue. The

student was asked to gather her belongings

so that I could escort her out of the

gymnasi um and to the office where she could

calm down. The student began to curse using

all kinds of profanity as she exited the

gymnasium. Once entering the hallway the

student continued to talk loud and curse

causing a comotion [sic]. I approached the

studen t to keep her from running and acting

wild and crazy. She pushed me with both

hands. She continued to curse and threaten

me saying Ð fuck you,Ñ Ðyou ainÓt nobody,Ñ

ÐwhatÓs up.Ñ I then tried to keep her at a

distance. She began to swing and punch at

me. I then tried to subdue her to keep her

from causing harm to me and herself. Once I

got her to the ground I called for security

to assist the situation.

24. As in his earlier statement, Mr. Green here makes no

mention of the most notable aspect of the incident : that he

struck a seventh grade student twice in the face with his fist.

He also makes no mention of any concern that S.J. might have had

a weapon.

25. Mr. Green was arrested and spent the night in jail . 4 /

He was charged with child abuse but the state attorney later

dropped the criminal charges.

26. Upon his release from jail, on August 29, 2013,

Mr. Green was informed by Mr. Nesmith that he was to report

immediately to the School BoardÓs Consolidated Services

Warehouse/Teacher Supply Depot a t Bulls Bay until further

notice.

27. On or about August 30, 2013, Mr. Green received the

Notice, which informed him of the charges against him and of his

right to contest those charges. The Notice stated that if

Mr. Green chose to exercise his right to a hearing, he would be

suspended without pay as of September 4, 2013, and that this

suspension would be acted upon by the School Board at its

meeting on September 3, 2013.

28. On September 3, 2013, Mr. Green sent an email to

Superintendent of Schools Niko lai P. Vitti that read as

follows: 5 /

Dear Dr. Vitti,

I am writing you this letter with the

deepest concern of my character. First, I

would like you to know that by no means am I

an evil person or even a child abuser, I am

far from what has been perceive d of me due

to the situation at Eugene Butler. I love

and care about my students and I am very

sorry for what happened but in all honesty I

was defending myself. Please take a few

minutes from your busy schedule to read this

letter and consider me for re instatement of

my job.

I entered the gym that particular day to get

a signature from a coach because I proudly

serve as the Athletic Director. As I was

getting the signature the young lady who

works in PE with me was having trouble

controlling her class, she asked me to

intervene and assist her. She is a first

year teacher, small statute young white

female who is presently teaching some

students that are academically and

behavioral challenged. This situation is

rough on a first year teacher. I was able

to calm her class down and get them in their

roll lines but this one particular student

continued to curse and disrupt the learning

environment. This student was just getting

back from Grand Park Alternative School this

year. I was aware of her past and her

behavioral problems so I asked her why she

canÓt follow instructions. I told her to

report to the Dean Ós office, still using

abusive language she told me ÐFuck YouÑ over

and over and continued to say Ðyou ainÓt

nobodyÑ . She walked to get her bag and

gather her belongings. I saw her reach

inside a bag she was carrying. I asked her

to get out the gym because at that time I

felt the other students were in danger and

this student was causing a serious uproar.

Before leaving the gym she said ÐyÓall

mot her fuckers always trying me ! Ñ She

continued to curse and got animated walking

to the door. When she left the gym I

followed her out at a cautious distance and

instead of heading to the Dean office she

was headed in the opposite direction to the

front of fice. I told her she was headed the

wrong way and this is when I stepped in

front of her. I was trying to calm her down

and keep her from causing a commotion in the

hallway and keep her from walking to the

front office. Then she raised her hands and

pus hed me saying ÐwhatÓs upÑ in a

threatening manner. Honestly it happened so

fast sir until I was in defense mode because

I knew what she had done to other staff

member s and the idea of her possessing a

knife really scared me. It was a situation

that I hav e never been in before and I

panicked. The student became combative in

an instance and I really didnÓt know how to

handle the situation. She came at me

swinging and saying ÐwhatÓs up, whatÓs up . Ñ

I was backing up trying not to let her get

to me because I thought she could have had a

weapon. She continued to attack me moving

in my direction. When I realized she didnÓt

have a weapon I took her to the ground

calling for security. Once I had her on the

ground she continued to kick and try to

break away. The entire time she continued

to curse and saying ÐIÓm gonna fuck you upÑ,

IÓm gonna kill you. Security arrived and

she continued to say Ðlet me go so me and

this mother fucker can fight . Ñ Again, I

have never been in a situation such as this

one. I feel truly sorry that this happened.

Since the incident I havenÓt been able to

sleep and I have become depressed over the

fear of my career being put in jeopardy. I

have over ten plus years of service with

Duval County and I have never been involved

with any thing such as this situation.

In closing this letter, I am currently

enrolled in graduate school with only three

more classes to go and I am majoring in

Educational Leadership. I really have hopes

and dreams of being a leader one day in this

wonderful dis trict but I am praying that you

have mercy on me for this situation and

consider the circumstance and not to think

that I am a child abuser but only I was

defending myself from a violent student. I

love my job and I really want to continue my

career in Du val County. Please consider me

for reinstatement, I am sorry for what

happened and I am so willing to attend any

training or workshops that the district

provides to help teachers in these

situations.

29. This email again fails to admit in a straightforw ard

manner that Mr. Green punched S.J. in the face. In this email,

his third written description of the events in the hallway on

August 28, Mr. Green for the first time states that he feared

S.J. had a weapon, presumably a knife that she had pulled out of

her bag while gathering her belongings in the gym.

30. In the email, Mr. Green also states that he believed

he was protecting the other students in the gym class from

ÐdangerÑ and that S.J was causing a Ðserious uproarÑ in the gym.

The security video sh ows that the other students were more or

less ignoring S.J. as she wandered in and out of the lines and

around the gym. 6 /

31. In her testimony, Ms. Knadle disagreed that the class

was out of control. She stated that the students were loud and

were talk ing over her, and she agreed that Mr. Green was able to

calm the students down by speaking to them.

3 2 . Six of seven School Board members were present at the

September 3, 2013, meeting at which Mr. GreenÓs case was

considered. The vote to suspend M r. Green without pay and to

terminate his employment with the Duval County School Board was

unanimous.

3 3 . In his testimony at the hearing, Mr. Green complained

that he had never received training on how to deal with violent

students. Sonita Young, the S chool BoardÓs chief human resource

officer, testified that the School Board offers training in

proper restraint techniques to all teachers who specialize in

working with students with behavioral disorders and to other

teachers on an as needed basis. As a general education teacher,

Mr. Green was not an obvious candidate for such training.

34. Ms. Young testified that the training needs of a

school are generally determined by the principal. Mr. Nesmith

testified regarding ÐCHAMPSÑ training in classroom management

techniques that all new teachers at Butler Middle School are

required to attend. Mr. Nesmith did not require Mr. Green to

take this training because there were no apparent deficiencies

in Mr. GreenÓs classroom management.

35. Most tellingly, M r. Nesmith testified that Ðteachers

know not to punch a student.Ñ A t eacher lacking trainin g may

face situations in which he must improvise a method of

restraining an out - of - control student, but there is no excuse

for such improvisation to descend to a fi stfight with a middle

school student.

36. Mr. Johnson, the security guard, testified that when

he is confronted by a physically aggressive student, ÐI just

wrap them up, put my arms around them to keep them from being

able to strike me or hurt themselve s. If they continue to be

aggressive, I put them on the floor and restrain them there.Ñ

This common sense approach is exactly how Mr. Green resolved the

situation with S.J., but only after twice punching her. It is

disingenuous for Mr. Green to contend that he required

specialized training to know not to draw back his fist and

strike a 14 - year - old student in the face.

37 . Mr. Green explained the inconsistency of his

statements by asserting that he was so stunned by the rapidity

of events on the mornin g of August 28 that he was Ðout of it.Ñ

Mr. Johnson testified that Mr. Green seemed Ðsomewhat bewildered

. . . like he couldnÓt believe what had just happened.Ñ

Mr. Green testified that at the time he wrote his first

statement, he honestly believed he ha d not struck S.J., despite

having seen the security video. Mr. GreenÓs testimony on this

point is not credible. His written statements were clearly

efforts to minimize his own actions and cast all blame for the

incident on S.J.

38. Mr. Green testified that he feared S.J. had pulled a

knife out of her bag because of her increased confidence and

belligerence after rummaging through her bag prior to leaving

the gym with Mr. Green. He further testified that his punches

were a desperate attempt to keep S.J. away from him in case she

was wielding a weapon. Once he was sure that she was unarmed,

he wrapped her up and took her to the ground.

39. Mr. GreenÓs testimony on this point is undercut by his

behavior prior to the first blow being struck. After S.J.

b ack ed up against the wall, Mr. Green move d in close, nearly

nose to nose with S.J. He testified that this is a technique he

learned from watching another teacher deal with angry students.

Mr. Green moves in close while speaking calmly to the student,

for cing the student to look him in the eye, feel safe, and calm

down.

40. Mr. GreenÓs explanation of this technique was not

entirely credible. The psychological rationale of standing

extremely close in order to calm a student is not readily

apparent. On th e security video, Mr. GreenÓs moving in on S.J.

appears more an effort to employ his bulk to intimidate the

student than to calm her . Even if Mr. GreenÓs explanation of

his m otive were credited, his action had the opposite of its

intended effect. There i s little question that his invasion of

S.J.Ós personal space was the proximate cause of her pushing him

away , which started the f ight.

41. In any event, Mr. GreenÓs willingness to closely

approach S.J., with his arms at his sides, belies his later

asserti on that he feared the child was holding a knife. His

apprehension of a weapon appears to be an explanation concocted

after the fact to explain why he chose to punch S.J. rather than

restrain her.

42. Mr. GreenÓs defense pointed out that no witness to the

aftermath of the incident noted any marks, bruises,

discoloration or severe injury to S.J.Ós face. The fact that

there were no marks on S.J.Ós face was a matter of fortuity and

no thanks to Mr. Green. This defense also overlooks the

potential psychologi cal harm to the child. S.J. was handcuffed,

arrested, and placed in a patrol car because the adults did not

believe that Mr. Green had punched her and Mr. Green himself

would not own up to his actions.

43 . Much testimony was presented as to Mr. GreenÓs

c haracter, his genuine concern for students and their respect

for him, and his lack of any prior disciplinary history. All of

this testimony has been considered and fully credited.

44. Much evidence was presented as to S.J.Ós

obstreperousness, her foul manner of speaking, her complete

disregard for authority, and her perpetual verbal and physical

aggression toward other students, staff and faculty of Butler

Middle School . This evidence has likewise been considered and

fully credited.

45. However, even if it is stipulated that Mr. Green is an

exemplary human being, a fine teacher and coach with an

unblemished record , and a dedicated employee of the School

Board, and it is further stipulated that S.J. was the worst

student ever to darken the corridors of Butler Middle School and

was in fact asking for what she got on August 28, 2013, there

would be no excuse or rationalization sufficient to lessen the

impact of Mr. GreenÓs actions on that date. When confronted

with a large and aggressive student, Mr. Gree nÓs instinct was to

do exactly the wrong thing and punch her in the face . He

compounded the harm by equivocating as to his actions even after

seeing video evidence of what he had done.

46 . Mr. GreenÓs instinctive reaction during this incident

cou ld not help but effect the way he is viewed by his peers in

the teaching profession and by the students who are entrusted to

his care. His judgment and honesty are in question, at best.

His effectiveness in the classrooms and the gymnasium of Butler

Midd le School has been irreparably impaired. In light of his

spotless disciplinary record up to the time of the incident, the

School Board could have considered transferring Mr. Green to

another school to give him a chance to salvage his career .

However , giv en the ferocity of the events depicted in the

security video, the decision to terminate Mr. GreenÓs employment

is entirely understandable. The evidence fully supports the

School Board's preliminary decision to terminate Mr. Green 's

employment.

CONCLUSIO NS OF LAW

47 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to s ection s 120.569 , 120.57(1) , and

1012.33(6 )(a), Florida Statutes . 7

48 . The School Board has the burden to establi sh by a

preponderance of the evidence the grounds for disciplining

Mr. Green . See, e .g. , 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); 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, 884 (Fla. 3d DCA

1990).

49 . Under the Tenure Act, Mr. Green is a tenured teacher

whose employment can be terminated only for Ð cause. Ñ Section 4

o f the Tenure Act provides that causes for the discharge of a

teacher include immoral character or conduct, persistent

violation of or willful refusal to obey state law or regulations

relating to public schools, inexcusable failure to discharge

oneÓs duties of employment, and dishonesty while employed.

50 . Article V.D.1 of the CBA, the Progressive Discipline

Policy, provides as follows, in relevant part:

[ T ] he following progressive steps must be

followed in administering discipline, it

being understood, how ever, that some more

severe acts of misconduct may warrant

circumventing the established procedure:

a. Verbal Reprimand

1. No written conference summary is

placed in personnel file

2. Employees must be told that a verbal

reprimand initiates the discipline process

b. Written Reprimand

c. Suspension without Pay

d. Termination

51 . Mr. Green meets the definition of Ðinstructional

personnelÑ set forth in section 1012.01(2), Florida Statutes.

The School Board has the authority to su spend or terminate

instructional staff pursuant to sections 1012.22(1)(f) and

1012.33(6)(a) .

52 . The standard for termination of instructional

personnel is Ð just cause , Ñ pursuant to section 1012.33(1)(a) . 8 /

53 . Section 1012.33(1)(a) provides, in pertinen t part:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Ed u cation:

immorality, misconduct in office,

incompetency, two consecutive annual

performance evaluation ratings of

unsatisfactory unde r s ection 1012.34 , two

annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

section 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfacto ry under

s ection 1012.34 , 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.

54 . The School Board in this case has not cited a specific

aspect of the statutory Ð just cause Ñ definition as the basis for

M r. Green 's termination. However, the facts alleged in the

Notice would, if proven, amount to Ð misconduct in office Ñ

constituting just cause to terminate h is e m ploym ent.

5 5 . Florida Administrative Code Rule 6 A - 5.056(2) provides:

(2) 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 vio lation 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) Beh avior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

5 6 . The Notice alleged that Mr. Green violated the Code of

Ethics of the Education Profession in Florida, Florida

Administrative Code R ule 6A - 10.080 , 9 / which provides as follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standar ds are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

striv e for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

other members of the community, t he educator

strives to achieve and sustain the highest

degree of ethical conduct.

5 7 . The Notice also alleged that Mr. Green violated

Principles of Professional Conduct for the Education Profession

in Florida , Florida Administrative Code R ule 6A - 10.081, 10 / which

provides as follows in relevant part:

(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 a nd/or safety .

5 8 . The text of rule 6A - 5.056 set forth in Conclusion of

Law 5 5 , supra , took effect on July 8, 2012. Prior to the 2012

amendments, this rule and its predecessor, rule 6B - 4.009,

defined Ðmisconduct in officeÑ as consisting of a violation Ð s o

serious as to impair the individual's effectiveness in the

school system. Ñ A body of appellate case law arose that applied

this standard. See , e.g. , Cropsey v. Sch. Bd. of Manatee Cnty. ,

19 So. 3d 351, 355 - 356 (Fla. 2d DCA 2009). Case law further

esta blished that i mpairment may be proven by direct evidence or

may be inferred from the nature of the violation itself. Purvis

v. Marion Cnty . Sch . Bd . , 766 So. 2d 492, 498 (Fla. 5th DCA

2000).

59 . The corresponding language in the current version of

rule 6 A - 5.056(2) (e) is Ð Behavior that reduces the teacherÓs

ability . . . to effectively perform duties .Ñ It could be

argued that a ÐreductionÑ in effectiveness sets a lower standard

for proving misconduct in office than ÐimpairmentÑ of

effectiveness. However, i t is not necessary t o settle the issue

in this case because Mr. GreenÓs conduct meets the arguably

higher standard of Ðimpairment.Ñ

6 0 . The evidence established that Mr. Green punched a

female middle school student in the face twice within a matter

of seconds after she pushed him . Despite the provocation, it

cannot be said that Mr. Green reacted in an ything but an

overwhelmi n gly inappropriate manner. He directly caused

physical harm to S.J. and failed to prevent the subsequent

psychological harm of the childÓs arrest. It is doubtful that

the students at Butler Middle School could ever again view

Mr. Green as a responsible adult authority figure. Mr. Green 's

actions undermined the confidence of his superiors.

6 1 . Mr. Green contended that the Schoo l Board was at fault

for failing to train him on how to respond when attacked. No

teacher should require CHAMPS or other specialized training to

know that it is inappropriate to punch a student in the face

with a closed fist regardless of the provocation.

6 2 . There is no question in this case that Mr. Green

failed to exercise the best professional judgment. Mr. Green

did not make a reasonable effort to protect the student from

co nditions harmful to the student' s mental health and safety .

6 3 . Mr. Green committed misconduct in office by violating

Florida Administrative Code Rules 6 A - 10.080(1), (2), and (3) ,

and 6A - 10.081(3)(a) in a manner so serious as to impair his

effectiveness in the school system.

6 4 . Mr. Green contends that the School Board erred i n not

applying the Progressive Discipline Policy of the CBA in this

case. It was undisputed that this was the first disciplinary

action of any kind taken against Mr. Green during his employment

with the School Board. However, the Progressive Discipline

P olicy expressly provides that Ð severe acts of misconduct may

warrant circumventing the established procedure.Ñ The School

Board met the burden of demonstrating that Mr. GreenÓs actions

warranted his immediate suspension without pay and termination

of his employment for just cause.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Duval County School Board enter a

final order terminating the employment of Michael A. Green as an

instructional employ ee of the School Board.

DONE AND ENTERED this 2 7 th day of June, 2014 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of June, 2014 .

ENDNOTES

1 / The incident was especially galling to Mr. Nesmith because he

had personally recruited Mr. Green to take the position of

physical education and health teacher at Butler Middle School at

the start of the 2012 - 2013 school year.

2 / Det ective Schoenfeld testified that , at the time , he was

unaware that Mr. Green had already given a statement to

Mr. Nesmith.

3 / Mr. Green consistently misspelled the word as Ðgynasium.Ñ

The text has been corrected for ease of reading.

4 / The stat ement in the Notice notwithstanding, the arrest was

made by the DC PS PD, not by the Jacksonville SheriffÓs Office.

Det ective Schoenfeld had recommended that the DC PS PD consult

with the state attorneyÓs office prior to making an arrest

because S.J.Ós vol atility in the situation made sustaining a

criminal charge against Mr. Green problematic. Det ective

Schoenfeld was overruled by Chief David Coffman, who testified

that he believed there was no question that probable cause for

an arrest was established by the security video and the

seriousness of the events shown therein.

5 / The email has been reproduced verbatim, including grammatical

and spelling errors. A separate textual indication for e ach

error would have made the email difficult to read.

6 / Mr. GreenÓs successive written statements steadily inflated

the threat posed by S.J. In the first statement, Mr. Green

wrote that she was causing a Ðdisruption.Ñ In the second

statement, S.J.Ós actions were creating a Ðsafety issueÑ for the

other students. In the email to Mr. Vitti, the threat had

escalated to a ÐdangerÑ and a Ðserious uproar.Ñ

7 / Unless otherwise indicated, references to the Florida

Statutes are to the 201 3 edition.

8 / The C BA , which w as entered as the School Board's Exhibit 16 ,

provi des at Article V.C. that employees may be Ð suspended

with out pay only for just cause and only by action of the School

Board . Ñ Article V.D.7 provides that an employee Ð may be

suspended without pay only for just cause and only by action of

the School Board. Ñ Though the agreement appears to be silent as

to the standard for termination, it stands to reason that Ð just

cause Ñ would be required for the ultimate sanction as well as

for the quoted lesser penalties.

9 / Rule 6B - 1.001 has been renumbered as 6A - 10.0 80 without change

to the substance of the rule. Rule 6A - 5.056(2)(a) has not been

amended to reflect this renumbering.

10 / Rule 6B - 1.006 has been renumbered as 6A - 10.081 without

change to the substance of the rule. Rule 6A - 5.056(2)(a) has

not been amende d to reflect this renumbering.

COPIES FURNISHED :

Tishia Anita Dunham, Esquire

1087 Lake Forest Boulevard

Jacksonville, Florida 32208

Kelly Hebden Papa, Esquire

Office of General Counsel

Suite 480

117 West Duval Street

Jacksonville, Florida 32202

Sonita Young, Esquire

5419 Grand Cayman Road

Jacksonville, Florida 32226 - 2297

Dr. Nikolai P. Vitti

Superintendent of Duval County Schools

Duval County Public Schools

1707 Prudential Drive

Jacksonville, Florida 32207

Matthe w Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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 ag ency that

will issue the Final Order in this case.