14-005940TTS Miami-Dade County School Board vs. Jannett Pusey Status: Closed Recommended Order on Friday, June 26, 2015.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 5940TTS

JANNETT PUSEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal ad ministrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by video

teleconference at sites in Tallahassee and Miami, Florida, on

April 14, 2015 .

APPEARANCES

For Petitioner: Cristina Rivera Correa, Esquire

Miami - Dad e County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent ' s

employment as a classroom teacher for the conduct alleged in the

Amended Notice of Specific Charges.

PRELIMINARY STATEMENT

At it s regularly scheduled meeting on December 10 , 2014,

Miami - Dade County School Board (Petitioner or School Board ) voted

to terminate the employment of Jannett Pusey (Respondent) . On

that same date, Respondent requested a formal administrative

hearing to con test Petitioner ' s action. On December 16 , 2014,

Petitioner forwarded the request to the Division of

Administrative Hearings (DOAH) , which scheduled and conducted the

hearing.

The matter wa s originally set for hearing on February 9 ,

201 5 . The matter was r escheduled based upon the Respondent ' s

Motion for C ontinuance. On April 13 , 2015, the parties filed a

Pre - hearing Stipulation, including a statement of agreed facts

that have been adopted and incorporated herein as necessary.

At the final hearing, which t ook place on April 14 , 2015,

Petitioner called the following witnesses: Luis Bello, Principal

of Aventura Waterways K - 8 Center (Aventura); Betty Pol lard,

paraprofessional; Kristy Garcia, teacher; Helen Pina, District

Director, Office of Professional Stand ards (OPS) . P etitioner ' s

Exhibits 1 through 12 , 15, 16 and 24 were admitted in evidence.

Respondent testified on her own behalf and submitted no exhibits.

The one - volume final hearing T ranscript was filed on May 26 ,

2015. Both parties filed proposed r ecommended orders which were

considered in the preparation of this Recommended Order.

Unless otherwise noted, citations to the Florida Statutes

and administrative rules refer to the versions in effect at the

time of the events giving rise to the charges identified in the

Administrative Complaint.

FINDING S OF FACT

1. At all times material hereto, Petitioner has been the

constitutional entity authorized to operate, control, and

supervise the public schools in Miami - Dade County, Florida. Both

West Hialeah and Aventura are public schools in Miami - Dade

County, Florida.

2. During the 2011 - 1 2 school year, Respondent was employed

as a teacher assigned to West Hialeah. Respondent ' s teaching

assignment during the 2014 - 2015 school year was as a teacher at

Aventur a.

3. Respondent ' s employment is governed by the collective

bargaining agreement between Petitioner and the United Teachers

of Dade ( " UTD Contract " ), Florida Statutes, the regulations

issued by the Florida State Board of Education as set forth in

the Flor ida Administrative Code, and the School Board ' s policies

and procedures.

Respondent ' s Prior Discipline

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

investigated for hitting an exceptional student education (ESE)

student at West Hialeah. The i nvestigation concluded that there

was probable cause to charge Respondent with violating School

Board Policies 3210 and 3210.01. As a result , a conference - for -

the - record ( CFR) was held on December 15, 2011, wherein OPS

District Director, Dr. Brown , issued Respondent directives to:

adhere to all School Board policies,

specifically 3210, Standards of Ethical

Conduct; 3210.01, the Code of Ethics; and

5630, Corporal Punishment and the Use of

Reasonable Force; refrain from contacting in

person or by any other means any of the

parties involved in the investigation;

refrain from using physical means as a form

of discipline; and [] conduct [herself], both

in [her] employment and in the community, in

a manner that reflects credit upon [herself]

and the district.

R espondent signed on January 3, 2012 , that she was in receipt of

these directives.

5. Although the charges against Respondent relating to

physic al aggression against a student merited a recommendation

from the School Board that Respondent be terminat ed, the School

Board took into consideration Respondent ' s length of service with

the School Board and the fact that she had not received any prior

discipline. As such, it was recommended that Respondent be

suspended for 25 workdays without pay. Responden t contested this

recommendation. Following a final hearing on September 24, 2012,

Administrative Law Judge Stuart M. Lerner found that Respondent

used physical aggression toward an ESE student and recommended

that the School Board uphold Respondent ' s 25 - w orkday suspension.

Ultimately, Respondent was suspended for 25 workdays without pay.

6. The September 2011 incident was reported to the Fl orida

Department of Education ( Florida DOE) , and a heari ng was held on

October 15, 2014, to determine whether an y disciplinary measures

should be taken on Respondent ' s educator certificate. Following

that hearing , conducted by the undersigned , it was recommended to

the Florida DOE that " Respondent be placed on probation for

90 days with a letter or reprimand to be placed in her

certification file. " The R ecommended O rder provided that,

" [t]his penalty takes into account that Respondent ' s conduct, in

striking the student, was inappropri ate under any circumstances,

but also places the conduct in perspective in relati on to

Respondent ' s otherwise incident - free teaching career. "

The September 17, 2014 , Incident

7. Respondent later began working as a teacher with ESE

students at Aventura beginning in the 2012 - 2013 school year.

During the 2014 - 2015 school year, Respondent worked as an Autism

Spectrum Disorder (ASD) teacher. M.C., who suffers from ASD, was

a student in Respondent ' s class during the 2014 - 2015 school year.

8. M.C. and his family are from Argentina and the 2014 - 2015

school year was the first year M.C. attended a public school in

the U nited States. Initially , M.C. could not take instruction in

class. Respondent worked with him to develop the skills to take

instruction by demonstrating actions, repeating instruction and

praising the student fo r doing things correctly. Respondent

taught M.C. how to write his name, catch a ball, and hold a

pencil .

9. Respondent shared a classroom with fellow teacher,

Ms. Stubbs. Ms. Stubbs had her own set of students with varying

exceptionalities . Ms. S tubbs had six middle school students and

Respondent had six elementary school students . Ms. Pollard acted

as Respondent ' s paraprofessional, helpin g Respondent with her

students. Additionally, Ms. Charles would assist Respondent with

M.C. for a few hours each day.

10. Respondent ' s planning period was during the time her

students went to art once a week on Wednesday . Respondent

voluntarily gave up her planning period to assist the art

teacher, Ms. Garcia, with the students.

11. Ms. Garcia worke d as an art teacher at Aventura for

six (6) years. On September 17, 2014, Ms. Garcia was teaching

art to Respondent ' s students. After Ms. Garcia had provided

instructions for the class, she began walking around the room

while the students worked on their assignment . M.C. was seated

at his desk coloring with crayons. M.C. began throwing crayons

on the floor and Respondent, who had been standing behind M.C.

with her hands on his shoulders, grabbed M.C. ' s hands and wrists

and pulled him down to the floor, causing M.C. to fall down to

his knees. Respondent told M.C. to pick up the crayons in a loud

tone that conveyed she was annoyed.

12. Once Respondent had M.C. on the floor, she held M.C. ' s

wrists, forcing him to pick up the crayons off the floor. A ll

the while, M.C., who is non - verbal, was making noises like he was

not happy. Ms. Garcia tried to help, but Respondent did not

allow her, insisting that M.C. had to clean up by himself .

13. M.C. eventually returned to his seat and then began

spitt ing on the floor. Once again, Respondent pulled M.C. to the

floor by his wrists, causing him to land on his knees.

Respondent again appeared annoyed as she was forcing M.C. to wipe

up the spit . Ms. Garcia attempted once more to assist in the

clean - up, b ut Respondent did not allow her , stating that M.C. had

to clean up his own mess .

14. Although Ms. Garcia has seen other ESE students being

restrained, she has never seen a teacher treat a student like

Respondent treated M.C. by forcefully pulling him to the floor.

T here was no indication that M.C. was going to hurt himself or

other students.

15. Although Ms. Pollard did not see the interaction

between Respondent and M.C., because she was busy helpi ng the

students with their assignment, she did hear Respondent yell,

" Pick it up! " in a tone loud enough to be heard over the noise of

the classroom.

16. At the end of the art class, M.C. pinched another

student with ASD, K . , in front of Respondent. Respondent

responded by instructing K. to pinc h M.C. back. Ms. Garcia was

only three feet away from Respondent when she heard Respondent

say this. K. is a very obedient student. W hen Respondent told

him to pinch M.C. back, K. looked confused, shrugged his

shoulders and reluctantly pinched M.C. back .

17. Ms. Garcia was shocked by what she witnessed. She

verbally intervened by telling Respondent that she would not

tolerate Respondent ' s behavior in her classroom. Ms. Garcia

admonished Respondent that the students should not be taught to

retalia te against each other. Respondent just stood silent and

stunned during the confrontation. Meanwhile, M.C., upset at K. ' s

retaliation, ran off and pinched another student, R., who

retaliated by repeatedly hitting M.C. back. The situation

Respondent creat ed was total chaos. Two children, K. and R., who

are otherwise well - behaved, were acting aggressively towards each

other. Ms. Garcia then had to physically intervene by separating

the fighting children because Respondent just stood by.

18. Ms. Poll ard, who had been outside Ms. Garcia ' s

classroom with the rest of the class, began to wonder what was

taking the other students so long. When Ms. Pollard peered back

into the classroom, the expression on Ms. Garcia ' s face startled

her. Ms. Pollard asked Ms. Garcia what was wrong, to which

Ms. Garcia responded, " Do you believe she [Respondent] told K. to

hit M.C.?! " Ms. Pollard looked over to Respondent, but

Respondent remained silent.

19. Ms. Garcia informed Principal Bello that she witnessed

Resp ondent handle M.C. in an inappropriate manner and that

Respondent instructed another student to pinch M.C. in

retaliation. Respondent denied these allegations. Ms. Garcia

did not have any issues with Respondent prior to Ms. Garcia

reporting the incident to Principal Bello. After the incident,

Respondent stopped coming into Ms. Garcia ' s classroom with her

students.

Respondent ' s Post - Incident Conduct

20. On September 29, 2014, Mr. Bello issued Respondent a

letter, directing her to refrain " from contacting any

complainant(s) and/or witnesses, with the intent to interfere

with the investigation of the above listed allegation. "

21. In November of 2014, M.C. ' s mother, S.C. , received a

tele phone call from Respondent on a Saturday night at around

8:00 p . m. Respondent proceeded to tell S.C. that she was going

to lose her job and teaching license because of S.C. ' s son, M.C.

Respondent asked S.C. to have her ex - husband, M.C. ' s father,

write a letter and backdate it to the first day of school in

Au gust 2014.

22. Respondent ' s call made S.C. feel " extremely horrible "

and " guilty. " S.C. did not want anyone losing their job because

of her son. Subsequently , Respondent repeatedly took advantage

of the fact that S.C. picked up M.C. in the classroo m to talk to

S.C. about the allegations. Respondent cried to S.C., telling

her that M.C. had behaved well on the last day of school before

the Thanksgiving break because M.C. must have known it would be

Respondent ' s last day as h is teacher.

23. Resp ondent ' s words and action s towards S.C. made S.C.

question why the school was investigating or targeting Respondent

and she wa n t ed to ask the school to stop their investigation.

The effect that Respondent ' s words and actions had on S.C. is

precisely what Petitioner tries to avoid by issuing standard

directives that employees being investigated may not contact

witnesses with the intent to interfere with the investigation. 1/

2 4 . Respondent was afforded her employee and due process

rights, including the opportunit y to file exceptions to the

investigative report and request a superintendent ' s review. At

its regularly scheduled meeting on December 10, 2014, the

Petitioner took action to suspend Respond ent without pay and

initiated dismissal proceedings ag ainst her.

25 . Respondent claims that allegations against her are

falsified, that Ms. Garcia was " coached " for reasons Respondent

could not articulate, and that her co - teacher, Ms. Stubbs, is out

to get her. She also believes " the principal and his agents "

conspired against her. Notably, Ms. Stubbs was not the

individual who reported the incident. She did not provide a

statement in support of the allegations nor did she testify at

the final hearing. Respondent could not identify the alleged

agents of the principal.

26 . Re s pondent ' s denial of the allegations and conspiracy

theory are identical to the defenses she asserted in response to

her prior incident of inappropriately touching a child for which

she received a 25 - day suspension and prob ation . 2/ Respondent

presented no credible evidence in support of these defenses.

27 . Respondent also claims that M.C. ' s father gave her

verbal permission at the beginning of the school year to teach

h is son " life skills " and put physical limits on h is son. The

father did not testify, there was no corroboration , and it was

denied by S.C. Even assuming this was true, it is implausible

that M.C. ' s father , or any parent, would envision a scenario in

which his child would be pulled to the ground forcibl y by his

teacher, or another student would be encouraged by a teacher to

physically r etaliate against his child , to teach " life skills. "

Findings of Ultimate Fact

28 . As discussed in greater detail below, Petit ioner proved

Respondent engaged in misconduct in office, gross

insubordination, and violated School Board rules 32 10 and 3213.

CONCLUSIONS OF LAW

29 . DOAH has jurisdiction over the parties to and the

subject matter of these proceedings pursuant to sections 120.569

and 120.57(1), Flor ida Statutes.

30 . Because the School Board, acting through the

s uperintendent, seeks to terminate Respondent ' s employment, which

does not involve the loss of a license or certification, the

School Board has the burden of proving the allegations in it s

Administrative Complaint by a preponderance of the evidence, as

opposed to the more stringent standard of clear and convincing

evidence. See McNeill v. Pinellas Cnty. Sch. Bd. , 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).

31 . Section 1012.33(1)(a) , Florida Statutes, includes the

following definition of just cause to terminate a teacher ' s

professional services contract:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office or being convicted or

found guilty of, or entering a plea of guilty

to, regardless of adjudication of guilt, any

crime involving moral turpitude.

32 . The Amended Notice of Specific Charges alleges the

following: Respondent committed misconduct in office in

violation of Florida Administrative Code Rule 6A - 5.056(2); a

violation of School Board Polic y 3210, the Standards of Ethical

Conduct; a violation of School Board Poli cy 3210.01, Code of

Ethics; a violation of School Board Policy 321 3 , Student

Supervision and Welfare ; and gross insubordination in viola tion

of rule 6A - 5.056(4) .

33 . Whether Re spondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

34 . Section 1001.02(1) , Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to sections

120.536(1) and 120.54 to implement provisions of la w conferring

duties upon it.

35 . Consistent with its rulemaking authority, the State

Board of Education has defined " misconduct in office " in Florida

Administrative Code Rule 6A - 5.056(2), which reads in pertinent

part as follows:

(2) ' Misconduct i n Office ' 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 Fl orida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effec tively perform duties.

Code of Ethics and Principles of Professional Conduct

36 . Rule 6B - 1.001, renumbered without change as 6A - 10.080,

Code of Ethics, provides:

(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.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive 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 one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

37 . Rule 6B - 1.006, renumbere d without change as 6A - 10.081,

sets forth the Principles of Professional Conduct. The School

Board alleges that Respondent violated sections (3)(a), (e) and

(f) of the rule, which read as follows:

(3) Obligation to the student requires that

the individua l:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disp aragement.

(f) Shall not intentionally violate or deny

a student ' s legal rights.

38 . As was stated in Miami - Dade C ou nty Sch ool B oar d v.

Brenes , Case No. 06 - 1758, 2007 Fla. Div. Adm. Hear. LEXIS 122

n.12 **42 - 43 (Fla. DOAH Feb. 27, 2007; Miami - Dade Cnty. Sch. Bd.

Apr. 25, 2007):

Rule [6B -

violation of both the Ethics Code and the

Principles of Professional Education be

shown, not merely a violation of one or the

other. The precepts set forth in the Ethics

Code, howe ver, are so general and so

obviously aspirational as to be of little

practical use in defining normative behavior.

It is one thing to say, for example, that

teachers must " strive for professional

growth. " See Fla. Admin. Code R. 6B -

1.001(2). It is quite another to define the

behavior which constitutes such striving in a

way that puts teachers on notice concerning

what conduct is forbidden. The Principles of

Professional Conduct accomplish the latter

goal, enumerating specific " dos " and

" don ' ts. " Thus, it is concluded that while

any violation of one of the Principles would

also be a violation of the Code of Ethics,

the converse is not true. Put another way,

in order to punish a teacher for misconduct

in office, it is necessary but not sufficient

that a violation of a broad ideal articulated

in the Ethics Code be proved, whereas it is

both necessary and sufficient that a

violation of a specific rule in the

Principles of Professional Conduct be proved.

It is the necessary and sufficient condition

to which the text refers.

39 . Respondent ' s actions, of twice pu lling M.C. to his

knees , and verbally encouraging another student to pinch M.C. ,

failed " to protect the student from conditions harmful to

learning and/or to the student ' s mental and/or physical health

and/or safety. " Respond ent intentionally exposed M.C. to

physical harm and embarrassment. Respondent ' s actions resulted

in a significant disruption to the classroom. This was not

Respondent ' s use of " best professional judgment. "

School Board Rul es

40 . The obligations of the teacher towards a student

contained in School Board Polic y 3210 ÏÏ Standards of Ethical

Conduct, and 3210.01 ÏÏ Code of Ethics, mirror the language of the

Principles of Professional Conduct for the Education Profession

in Fl orida, rule 6A - 10.081. For the reasons discussed above,

Petitioner demonstrate d by a preponderance of the evidence that

Respondent violated Policy 3210 and 3210.01 and, therefor e , just

cause exists for termination.

41 . School Board Policy 3213 ÏÏ Stud ent Supervision and

Welfare states in relevant part that " [p]rotecting the physical

and emotional well - being of students is of paramount importance. "

As such, School Board Policy 3213 requires " [e]ach instructional

staff member [to] maintain the highest pr ofessional, moral, and

ethical standards in dealing with the supervision, control, and

protection of students on or off school property. "

4 2 . Respondent failed her obligation under School Board

Policy 3213 to incorporate high professional, moral , an d ethical

standards with respect to the ASD students. Respondent not only

neglected to protect M.C., K. , and R. from conditions harmful to

them, she created them.

Gross Insubordination

43 . Section 6A - 5.056 (4) of the Florida Administrative Code

defin es gross insubordination as the " intentional refusal to obey

a direct order, reasonable in nature, and given by and with

proper authority, misfeasance, or malfeasance as to involve

failure in the performance of the required duties. "

44 . On December 1 5 , 2011, Dr. Brown issued Respondent

directives at her CFR. The directives were appropriate and

reasonable in nature, and were issued by Dr. Brown, who had

proper authority as OPS District Director. By violating the same

School Board Policies on Septembe r 17, 2014 , with similar

conduct ÏÏ physica l aggression towards students ÏÏ Respondent

intentional ly refused to obey Dr. Brown ' s direct orders .

45 . On September 29, 2015, Mr. Bello directed Respondent to

not contact witnesses with the intent to interfere with the

investigation of the September 17th incident. As Respondent ' s

principal, Mr. Bello is authorized to issue those directives.

They were reasonable in nature, given Petitioner ' s interests in

maintaining the integrity of the investigation process, a nd

insuring that witnesses are not tainted.

4 6 . By telephoning, and speaking to S.C. in person, with

the intent to make S.C. feel bad for her regarding the

allegations and the possibility of Respondent losing her job,

Respondent intentionally interfe red with the investigation.

Whether Respondent ' s action had any actual impact on the

investigation is not of consequence; rather her intent to

interfere is sufficient. Accordingly, Respondent ' s conduct, as

described herein, constitutes gross insubordinati on and just

cause for dismissal from employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, including Respondent ' s prior 25 - day suspension for similar

conduct (inappropriate physical contact with a student) and the

serio usness of these violations, it is RECOMMENDED that the

School Board enter a Final Order terminating Respondent ' s

employment.

DONE AND ENTERED this 2 6th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

MARY LI CR EASY

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 Administrat ive Hearings

this 2 6th day of June , 2015 .

ENDNOTE S

1/ Although S.C. initially supported Respondent, the behavior

M.C. began displaying over the winter recess caused S.C. to

question what her son experienced with Respondent. By the time

M.C. returned t o school from the winter break, Respondent had

already been suspended and there was no need for S.C. to request

M.C. ' s removal from Respondent ' s classroom , as she intended .

2/ In this proceeding, Respondent also alleged that her

deposition transcript was altered to include things she did not

say. This far - fetched assertion further weakened Respondent ' s

credibility.

COPIES FURNISHED:

Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

1718 East Seventh Avenue , Suite 301

Tampa, Florida 33605

(eServed)

C ristina Rivera Correa, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahasse e, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School B oard

1450 Northeast Second Avenue , Suite 912

Miami, Florida 33132 - 1308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.