15-004929 St. Lucie County School Board vs. Randolph Lockridge Status: Closed Recommended Order on Monday, April 4, 2016.

Summary: The School Board presented sufficient just cause to terminate the Petitioner, an ESE behavior technician, for insubordination and using inappropriate methods to discipline or control a disabled student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 4929

RANDOLPH LOCKRIDGE,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in th is case before Robert L.

Kilbride, an Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), on January 20, 2016, in Port

St. Lucie, Florida.

APPEARANCES

For Petitioner: Barbara Lee Sadaka, Esquire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

For Respondent: Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner,

St. Lucie County School Board , has just cause to terminate

Respondent ' s employment.

PRELIMINARY STATEMENT

The St. Lucie County School Board ( " P etitioner " or " School

Board " ) employs Randolph Lockridge ( " Respondent " or " Lockridge " )

as an e xceptional s tudent e ducation ( " ESE " ) b ehavior t echnician.

In September 2014, Respondent was removed from the classroom and

placed on temporary duty assignment pe nding an investigation for

using an inappropriate method to discipline or control a disabled

child.

On May 1, 2015, Respondent received a Letter of Reprimand

for administering an inappropriate method of discipline on a

disabled child and for unsatisfactory work performance and was

reassigned as a behavior technician at a different school,

Northport K - 8 School .

On May 19, 2015, Respondent was involved in another episode

of administering an inappropriate method of discipline on a

disabled student.

On June 29, 2015, the s uperintendent sent Respondent a

letter stating that he had violated numerous S chool B oard

policies and was being recommended for termination at the

August 25, 2015 , School Board meeting.

On July 6, 2015, Respondent , through his attorney, reques ted

a hearing before an administrative law judge appointed by DOAH

pursuant to sections 120.569 and 120.57, Fl orida Stat utes .

In response to the July 6, 2015 , request, a letter was sent

to Respondent ' s counsel on July 23, 2015, advising that pursuant

to R espondent ' s DOAH request, his name was being submitted to the

School Board at its regularly scheduled meeting on July 28, 2015,

for suspension without pay and referral to DOAH. On September 2,

2015, Petitioner forwarded the request to DOAH , which schedule d

and conducted the final hearing on January 20, 2016 .

Petitioner called the following witnesses: Teacher (former

student teacher) Deborah Ramsingh; Teacher Amber McDonald;

Behavior Technician Jennifer Staab; Records Custodian for Port

St. Lucie Police De partment Linda Cole; Executive Director for

Student Services and Exceptional Student Education Bill

Tomlinson; Child Protective Investigator for the Department of

Children and Families Virginia Snyder; and Executive Director

of Human Resources Maurice Bonn er. Petitioner ' s Exhibits 2, 4 ,

6 through 16 , and 18 through 24 were admitted in evidence.

Respondent testified on his own behalf and called one additional

witness, President of the Classroom Teachers Association Victoria

Rodriguez. Respondent ' s Exhibit s 2 through 7 were admitted in

evidence.

The two - volume final hearing Transcript was filed on

February 18, 2016. Respondent filed an Unopposed Motion for

Extension of Time to File Proposed Recommended Order , and ,

pursuant to the undersigned ' s Order dated February 22, 2016, the

date for the parties ' p roposed r ecommended o rders was extended ,

and the proposed recommended orders were due March 10, 2016.

In this document, citations to the hearing T ranscript are

indicated by a " T r. , " the volume number, the page number of the

T ranscript , and the line number(s). Citations to exhibits are

indicated by either " P et . " for Petitioner ' s exhibit or " R esp . "

for Respondent ' s exhibit, " Exh . " number .

Unless otherwise indicated, citations to the official

statute law of the s tate of Florida refer to Florida Statutes

2015.

FINDING S OF FACT

Based on the evidence presented at the hearing, the

undersigned credits and makes the following findings of material

and relevant facts:

1. Lockridge has been employed by the School Board an d last

worked as an E SE b ehavior t echnician at Northport K - 8 School.

P et . Exh. 1 .

2. Lockridge is a continuing status employee covered under

the Collective Bargaining Agreement ( " CBA " ) between the School

Board and the Classroom Teachers ' Association Clas sified Unit

( " CTA/CU " ) . R esp . Exh. 6.

3. The CTA /CU consists of behavior technicians,

paraprofessionals, bus paraprofessionals , and clerical staff.

T r . II, p. 180 , lines 10 - 14.

4. During the 2014 - 2015 school year, Lockridge was assigned

to T eacher Ambe r McDonald ' s self - contained classroom for

intellectually disabled students at Floresta Elementary. The

intellectually disabled classroom is for students with emotional

disorders and students with an intelligence quotient ( " IQ " )

under 69. T r . I, p. 51 , li ne 25 - p. 52 , line 2.

5. For the 2014 - 2015 school year, there were five adults

working in Ms. McDoanld ' s classroom: Randolph Lockridge,

behavior technician ; Sharon Koen, paraprofessional ; Stephanie

Ludwig, paraprofessional ; Ms. McDonald, classroom teacher ; and

Deborah Ramsingh, student teacher. T r . I, p. 52 , line 24 - p. 53 ,

line 7. There were approximately 12 students in the classroom.

T r . I, p. 53, lines 8 - 10.

6. Student D.S. was an eight - year - old ESE student whose

primary disability is intellectual. D.S. is non - verbal and has

D own 's syndrome. P et . Exh. 7. Because of his disability, D.S.

is limited to two - word utterances " here and there. " He has an IQ

below 60 and intellectually he i s on about a one and one - half -

year - old level. T r . I, p. 54 , lines 10 - 17.

September 8 and 9, 2014, Incidents with D.S.

7. On September 8, 2014, Ms. Ramsingh was engaged in a

lesson with the students on using crayons, teaching them how to

hold the crayons and how to draw on the paper. D.S. kept taking

his crayons and thr owing them on the floor. She observed

Lockridge take the student ' s hand and press his fingernail into

the palm of D.S. ' s hand. The student screamed " ow " and pulled

his hand back. T r . I, p. 34 , lines 9 - 18. Lockridge looked at

him and asked , " Why are you crying, what ' s wrong? " T r . I, p. 35 ,

lines 14 - 15.

8. Ms. Ramsingh reported what she saw the following day to

Ms. McDonald, the supervising teacher in the classroom. T r . I,

p. 35 , line 25 - p. 36 , line 12.

9. On September 9, 2014, when Lockridge and D.S. returned

to the classroom from physical education (" PE ") , Ms. Ramsingh

observed another interaction between them. D.S. had his crayons ,

and he threw them on the floor again. Lockridge took his hand

and pushed his fingernail into the palm of the student ' s hand

again. He said " ow " again , but continued to throw his crayons on

the floor. Lockridge pressed his finger into the student ' s hand

a second time. The student said " ow " again. When Lockridge

realized Ms. Ramsingh was looking at him, he commented, " I

shouldn ' t do that, they don ' t like when I do that, some people

think it is abuse. " T r . I , p. 36 line 22 - p. 37 line 9.

Ms. Ramsingh went to Ms. McDonald and told her that Lockridge put

his fingernail in the student ' s hand two more times , and she told

Ms. McDonald the statement that Lockridge made. T r . I, p. 38 ,

lines 12 - 18. Ms. McDonald left the classroom to report it.

T r . I , p. 38 , lines 17 - 20.

10. Ms. Ludwig took D.S. into the restroom and yelled for

Ms. Koen to come into the restroom. T r . I, p. 39 , lines 14 - 18.

11. Ms. Koen told Lockridge to get Ms. McDonald. T r . I ,

p. 40 , lines 9 - 14. The staff had ice packs on D.S. T r . I ,

p. 40 , lines 21 - 23.

12. Ms. Ramsingh observed the fingernail marks in D.S. ' s

hand and the ice that the staff was putting o n D.S. ' s wrist.

T r . I, p. 47, lines 5 - 9. Ms. Ramsingh gave a statement to law

enforcement the following day. T r . I, p. 41 , lines 3 - 7 ; P et .

Exh. 4. She also provided a statement for the School Board ' s

investigation. P et . Exh. 7.

13. Ms. McDonald test ified about what she observed on

D.S. ' s body (after the student had returned from P . E . ). She

described it as a fresh bruise about three to four inches on both

of D.S. ' s wrists; it looked like he had a hand mark on both his

wrists , and it was purplish alre ady. T r . I, p. 55 , lines 5 - 11.

D.S. did not have any bruises on his body before he went to PE .

14. Ms. McDonald asked Lockridge what happened. Lockridge

said he did n o t know, " maybe he fell. " T r . I, p. 56 , lines 1 - 2.

Lockridge said he had to help D.S . walk. T r . I, p. 56,

lines 5 - 6. D.S. did not have any bruising on his body when

he left the classroom for PE. But, he returned with bruises on

his wrist , and Lockridge was responsible for supervising D.S.

while he was at PE. T r . I, p. 73 , lines 17 - 25.

15. Ms. McDonald testified that her observation of

Lockridge was that there were a lot of times he was loud and

instead of de - escalating a situation, he would often escalate it.

T r . I, p. 59, lines 1 - 3. There were parents of children that

Lockridge had worked with who had concerns about Lockridge. As a

result, Ms. McDonald restricted him from working with specific

students in the classroom. T r . I, p. 58 , lines 4 - 5 and

lines 15 - 18.

16. As a behavior technician, Lockridge was trained in

Crisis Preventi on Intervention (CPI). P et . Exh. 20 and Exh. 23.

The purpose of CPI is to de - escalate a situation before it ever

comes to the point of having to restrain a child. T r . I, p. 59,

lines 4 - 8 , and p. 59 , lines 12 - 14.

17. Ms. McDonald testified that de - escal ation means to

approach the student and get them to calm down, to breathe.

T r . I, p. 60 , lines 1 - 6.

18. Ms. McDonald also testified that it is not appropriate

to restrain a child by the wrist where bruising would be caused.

T r . I, p. 62 , lines 21 - 24.

1 9. If the child begins to resist, " the teacher should not

move, but should stand there until the child is ready to move. "

T r . I, p. 64, lines 2 - 4.

20. Lockridge provided a statement to the principal

regarding the September 9, 2014 , incident with D.S. P et . Exh. 9.

21. Law enforcement was contacted. T r . I, p. 56, lines 14 -

15; P et . Exh. 4.

22. On September 10, 2014, the school security officer,

Frank Sisto, notified Maurice Bonner, executive director of Human

Resources , of Ms. Ramsingh ' s report. P et . E xh. 11.

23. On September 10, 2014, Mr. Bonner hand - delivered a

Formal Notice of Investigation and Temporary Duty Assignment to

Lockridge and also verbally notified Lockridge of the

allegations. P et . Exh. 6; T r . II, p. 171 , lines 23 Î p. 172 ,

line 11. Lock ridge was temporarily assigned to the ESE office

pending an investigation.

24. On March 19, 2015, the School Board ' s internal

investigation concluded. P et . Exh. 7.

25. On May 1, 2015, Mr. Lockridge received a Letter of

Reprimand from Mr. Bonner and was reassigned to Northport K - 8

School as a b ehavior t echnician. P et . Exh. 15.

Involvement by Mr. Maurice Bonner

26. Mr. Bonner testified that he discussed Lockridge ' s

conduct and his expectations concerning future conduct with

Lockridge . Specifically, Mr. Bonner explained to Lockridge that

inappropriate discipline of students was not acceptable behavior

and that he was to cease and desist from any type of such

discipline in the future. T r . II, p. 174 , line 15 - 21.

27. As e xecutive d irector of Human Resourc es for St. Lucie

County Public Schools, Mr. Bonner is in charge of the hiring

process for applicants, in charge of records for the s chool

d istrict employees, supports administrators in the discipline

process, works with employees on leave, interpret s Schoo l Board

policy , and provides support to the superintendent and the School

Board members . T r . II, p. 168 , lines 12 - 17.

28. Mr. Bonner is responsible for applying and enforcing

School Board Policy Chapter 6.00 , Human Resources. T r . II,

p. 169 , line 24 Î p. 170 , line 4.

29. When an allegation of inappropriate conduct or

violation of School Board policy is made for an individual who

interacts with students, and if it rises to the level of

institutional abuse, the school d istrict ' s protocol is for the

S chool B oard administrators to contact the Department of C hildren

and Families , law enforcement, the human resources administrator ,

and then the parent. T r . II, p. 171 , lines 5 - 15.

30. After Lockridge was assigned to Northport K - 8 School on

May 1, 2015, there wa s another incident involving Lockridge and a

disabled student , V . S . I . T r . II, p. 175 , lines 14 - 18.

3 1 . On January 20, 2015, when Lockridge said he did n o t

want to give any further statement, he and Victoria Rodriguez,

his union representative , asked for a copy of the incident report

from the law enforcement officer. T r . II, p. 179 , lines 21 Î

p. 180 , line 3.

3 2 . The School Board provided th e incident report to

Lockridge and Ms. Rodriguez, and Lockridge wrote a statement.

P et . Exh. 10.

3 3 . Lockridge sai d he was too nervous (about the meeting)

and he did n o t want to sit down and answer questions. But, he

eventually wrote his statement after reviewing law enforcement ' s

incident report while his union representative was present. P et .

Exh. 10 ; T r . II, p. 1 82 , line 6.

3 4 . By letter dated June 29, 2015, Superintendent Genelle

Yost informed Lockridge that she intended to recommend to the

School Board that he be terminated. P et . Exh. 22.

3 5 . Mr. Bonner, in his conversation with Lockridge

regarding the first incident (with Student D.S.) , warned and

instructed Lockridge to not use inappropriate discipline on

students. Despite this warning, a few weeks later at Northport

K - 8 School , Lockridge used inappropriate discipline on a student

again. Mr. Bonner, as an administrator, had given Lockridge a

previous directive that was n o t followed. In Mr. Bonner ' s

professional opinion, that constituted insubordination. T r . II,

p. 185 , lines 17 Î p. 186 , line 1 ; P et . Exh. 24.

3 6 . Mr. Bonner testified that sitting on a stud ent ' s hands

is not appropriate discipline. It is not an appropriate method

of restraint of a student. T r . II, p. 186 , lines 5 - 9.

3 7 . In addition, it constitutes a violation of the c ode of

e thics of the s tandards for employees in the education

profession , putting students in danger of harm. Mr. Bonner

stated that " We ' re in charge of their health, welfare and safety

and that ' s not meeting that standard . " P et . Exh. 24 ; T r . II,

p. 186 , lines 10 - 14.

3 8 . Commenting on the incident involved, Mr. Bonner felt

that " sticking a thumb down in a student ' s palm " was indecent

conduct and can be considered abusive to a student. T r . II,

p. 186 , lines 21 Î p. 187 , line 1 ; P et . Exh. 24.

39 . In his opinion, Lockridge ' s conduct constituted

unsatisfactory work performance s ince he had harmed a student .

He also felt it constituted neglect of duty and violation of any

rule, policy , or regulation. T r . II, p. 187 , lines 5 - 18 ; P et .

Exh. 24.

4 0 . Mr. Bonner explained how progressive discipline works:

We have several steps that w e can use as far

as disciplining employees based on their

conduct and based on the severity . . . if we

believe that the incident or the behavior is

severe enough, we can skip steps . . . we can

start immediately with termination if it ' s

severe enough. If we don ' t believe it is

severe enough to go that way, then we go down

that continuum -- a letter of concern, letter

of reprimand, suspension or termination.

T r . II, p. 191 , lines 7 - 23.

4 1 . When you look at progressive discipline, you have to

look at what the previous action is. If you ' re going to look at

multiple offenses of the same nature, you can ' t discredit that.

T. II, p. 193 , line 23 Î p. 194 , line 2.

4 2 . In Mr. Bonner ' s opinion, Lockridge ' s second incident of

sitting on a child ' s hand is " also abu sive and discourteous

conduct, it ' s immoral and indecent, it ' s negligent because he was

told not to use inappropriate discipline, it ' s unsatisfactory

work performance, and it ' s a neglect of his duty because it ' s not

proper protocol or training for restrain t of a student. H is

conduct is also a violation of the rules, polic ies, and

regulation s . " T r . II, p. 194 , lines 3 - 10 ; P et . Exh. 24.

4 3 . Lockridge had a duty and responsibility, and he failed

to discharge that duty knowingly , and that was negligence, in

Mr. Bonner ' s opinion. T r . II, p. 194 , lines 23 - 25 ; P et . Exh. 24.

4 4 . Lockridge knew that sitting on a child ' s hands was not

a proper restraint technique under the CPI training that he has

received as a behavior tech nician for the St. Lucie County Publ ic

School System. He was told, based on a previous instruction,

that sticking his thumb down in the student ' s hand was not

appropriate discipline or restraint of a student. H e knew that

what he was doing was not appropriate and that it did not meet

the s tandards of the St. Lucie County Public School System nor

the training he received. T r . II, p. 195 , lines 11 - 23.

4 5 . Mr. Bonner told Lockridge when he gave him the L etter

of R eprimand that if Lockridge violated any of the School Board

polic ies again, mor e severe disciplinary action could be taken.

T r . II, p. 197 , lines 13 - 22.

4 6 . The standard for skipping steps in progressive

discipline is based on the employee ' s behavior. T r . II, p. 198 ,

lines 12 - 15.

4 7 . " It i s on a case by case basis . . . if you di d

something very egregious, we don ' t have to start at the beginning

of that continuum. Based on the behavior of the employee then

[ sic ] dictates where we go on to that continuum. " T r . II,

p. 198 , lines 17 - 23.

May 19, 2015 , I ncident with V . S . I .

4 8 . Jenn ifer Staab was a behavior technician at Northport

K - 8 School . T r . I, p. 80 , lines 1 - 6. Ms. Staab was certified in

C PI . T r . I, p. 81 , lines 5 - 9.

49 . She worked with students in an emotionally behaviorally

disturbed ( " EBD " ) classroom on May 19, 2015. It i s a self -

contained classroom. T r . I, p. 82 , line s 1 - 7.

5 0 . On May 19, 2015, there were eight or nine students in

the EDB self - contained classroom. T r . I, p. 82 , lines 11 - 14.

5 1 . T here was only one way into the desk; the desk was

pushed up against the computers. T r . I, p. 83 , lines 11 - 15.

5 2 . Ms. Staab heard a slap and that drew her attention to

that direction. T r . I, p. 84 , lines 5 - 8.

5 3 . Lockridge was sitting on the desk ; his back was towards

V . S . I. T r . I, p. 84 , lines 11 - 12.

5 4 . V .S.I. was sit ting in the desk. T r . I, p. 84 , lines

14 - 18.

5 5 . When Lockridge got off of the desk, Ms. Staab noticed

deep indentations, at least two or three of them, on the

student ' s one arm. T r . I, p. 85 , lines 22 Î p. 86 , line 5.

5 6 . Ms. Staab concluded that Lockri dge had to have been

sitting on V . S . I . ' s hands. T r . I, p. 86 , lines 16 - 18.

57 . From the way behavior technicians are trained,

Ms. Staab considered Lockridge being seated on the desk and

trying to prevent the student from getting out of the desk, to be

an inappropriate restraint. T r . I, p. 87 , lines 14 - 22.

58 . If the student is not a threat to themselves or others ,

then physical restraint is not appropriate. T r . I, p. 89 ,

lines 15 - 18.

59 . While doing a single - hold restraint, the adult is

behind the chi ld. T r . I, p. 93 , lines 1 - 4.

6 0 . Ms. Staab never observed Lockridge behind the child.

T r . I, p. 93 , lines 5 - 7.

6 1 . Ms. Staab noticed two indentations on V . S . I . ' s arm,

about three inches long. T r . I, p. 93 , lines 8 - 19.

Testimony of Randolph Lockridge

6 2 . Ms. Staab did not witness V . S . I . trying to elope or run

from the classroom. T r . I, p. 98 , lines 22 - 24.

6 3 . Lockridge admitted that he took hold of V . S . I . ' s

wrists, causing bruising to her wrists. P et. Exh. 16; T r . II,

p. 213 , lines 6 - 9.

6 4 . From L ockridge ' s perspective, " it was crisis because

she was not being safe . . . she was ' not complying ' with his

verbal direction ." (emphasis added). T r . II, p. 213 ,

lines 19 - 23.

6 5 . Lockridge argued that V . S . I . exhibited behavior , i.e.

her elopement, that might harm other students. T r . II, p. 213 ,

line 24 Î p. 214 , line 5. 1/

6 6 . Lockridge testified, without specific detail, that

V . S . I . " could have hit, kicked, maybe spit on somebody or

something . " T r . II, p. 214 , lines 7 - 10.

67 . Lockridge testified that h e was holding V . S . I . ' s wrists

when he was sitting on them. T r . II, p. 215 , lines 4 - 6.

68 . Despite his training, Lockridge testified that he did

n o t understand that it was an inappropriate method of discipline

for him to be sitting on V . S . I . ' s hands. T r . II, p. 215 ,

lines 11 - 13.

69 . Lockridge testified that he did n o t intentionally

violate any School Board policies or intend to violate any

directives that he was given. T r . II, p. 220 , line 24 Î p. 221 ,

line 3.

7 0 . This appeared, in part, to be the crux o f his defense

to the charges brought.

7 1 . Lockridge testified that when the incident was

happening at Northport K - 8 School with V . S . I . , he reverted to and

used his " military restraint training , " instead of his School

Board restraint training. T r . II, p. 222 , lines 15 - 17.

7 2 . L ockridge testified that he did not bring up this issue

of his military training " kicking in , " as he put it, concerning

the incident involving V . S . I. However, he discussed it before

with a behavior analyst concerning another studen t . T r . II,

p. 230 , lines 19 - 21 , and p. 231 , lines 18 - 20.

7 3 . Lockridge related an incident that had occurred in

May 2015. Apparently, a student tried to assault him while he

was walking back to the ESE office. His old military restraint

training came i nto play, and he ended up having to put the

student on the ground. He physical ly put the student on the

ground. T r . II, p. 232 , lines 12 - 16 , and p. 233 , lines 4 - 11.

7 4 . I n a candid admission, Lockridge testified that he does

not believe that " at this mo ment " he could work with disabled

students at the s chool d istrict as a behavior technician. P et .

E xh. 12 ; T r . II, p. 236 , lines 21 - 24.

7 5 . Describing his military restraint training (that he

sometimes reverts to), Lockridge testified that because he was

going to be working with prison detainees, " They taught us

various techniques to keep yourself safe and try not to do harm

to the prisoners either. " T r . II, p. 237 , lines 17 - 22.

7 6 . Lockridge testified that, unlike CPI training, military

restraint train ing is not non - violent training. It could be

violent. Because, as he put it, you are working with prison

detainees. So , Lockridge could not say it was non - violent.

T r . II, p. 237 , line 23 Î p. 238 , line 3.

77 . When asked if it is foreseeable that he co uld become

violent with a student, Lockridge answered , " I don ' t know. . . .

I understand what I did was wrong. I don ' t know how I could have

done some things differently. I don ' t know. " T r . II, p. 238 ,

lines 4 - 8.

7 8. When asked if he can say with any degree of certainty

that he may not pose a danger to students, Lockridge testified

that , " if I ' m put in a stressful situation with a very aggressive

student or that I perceive to be aggressive, I do what I think is

best for my safety at the time. Or th e student ' s safety too. "

T r . II, p. 238 , lines 14 - 24.

79 . L ockridge testified, frankly , that for him , it is

sometimes more of an automatic response and that he can not really

control this military restraint training that kicks in. T r . II,

p. 238 . line 25 Î p. 239 , line 3.

Testimony of Virginia Snyder

8 0 . Virginia Snyder works for the Department of Children

and Families as a child protective investigator. T r . I, p. 153 ,

lines 6 - 8.

8 1 . She prepared a report of institutional abuse, an

investigative summary. P et . Exh. 2. ; T r . I, p. 153 , lines 13 - 25.

8 2 . Her investigation and report involved Lockridge sitting

on V . S . I . ' s hands to restrain her in the classroom at Northport

K - 8 School . T r . I, p. 154 , lines 21 - 25.

8 3 . She went to the school, talked with admi nistration,

talked to witnesses, and talked to children involved on the

report. T r . I, p. 154 , lines 3 - 9.

8 4 . Ms. Snyder made verified findings for " threatened harm

of physical injury . " T r . I, p. 154 , lines 11 - 16.

8 5 . Ms. Snyder concluded that Lockridg e had in fact sat on

the child ' s hand. T r . I, p. 155 , lines 2 - 4.

8 6 . She also made a finding that the s chool d istrict ' s

policies and practices were appropriate. T r . I, p. 155 ,

lines 15 - 17.

87 . " Threatened harm " means the possibility that the

person ' s a ctions can cause an injury to the child. T r . I,

p. 155 , line 23 Î p. 156 , line 1.

88 . Ms. Snyder testified that the Department of Children

and Families felt that a pattern was appearing due to a prior

investigation that was closed without a substantiated f inding.

W hen the Department of Children and Families conducted an

institutional staffing, the Department of Children and Families

was concerned that there was a pattern starting. T r . I, p. 157 ,

lines 4 - 8.

89 . Specifically, Ms. Snyder " looked at how Lock ridge

restrained the child, was it appropriate or was it inappropriate

. . . . And that is where we established that there was a type

of behavior, a pattern starting. " T r . I, p. 157 , line 20 Î p. 158 ,

line 2.

90 . " We (DCF) don ' t make the recommendation. We make the

report so that those involved can have a copy of an official

report from the Department of Children and Families. We put the

findings in there so that whoever administrative - wise is taking a

look at it can make a decision, like the School Board, as to what

penalty that staff member may face. " T r . I, p. 159 , lines 17 - 24.

9 1 . Based on Department of Children and Families

legislation, s he felt that the two incidents are " a pattern " and

are not reflective of just isolated event s . T r . I, p. 16 2 ,

lines 1 - 5 , 16 - 17 .

Testimony of William Tomlinson

9 2 . Bill Tomlinson is the e xecutive d irector for Student

Services and Exceptional Student Education. T r . I, p.112 ,

lines 4 - 5.

9 3 . He has worked for the School Board a total of 29 years.

T r . I, p. 112 , lines 13 - 14.

9 4 . Tomlinson testified regarding whether behavior

technicians are trained in any sort of restraint or CPI . He

testified that the school d istrict has two separate models that

are used in the d istrict. The first is non - violent crisis

preven tion intervention, better known as CPI. The second model

th e district uses, f or more severe children that may be in a

special day school, is professional crisis management. Non -

violent CPI is a nationally recognized model that deals primarily

with strate gies to verbally de - escalate behavior. It employs

different levels of strategies with students before getting into

physical management of any type of behavior. The physical

management piece is a part or a component of the training, but it

is really the last resort. In his opinion, " that (i.e. , physical

management) should be last . " T r . I, p. 114 , lines 4 - 21.

9 5 . It is meant to be a process in which the teacher tries

to curtail the behavior of the student by working with them to

help them self - regulate so that the student can take ownership of

his/her behavior and get themselves under control without the

teacher having to do any type of physical management. T r . I,

p. 115 , lines 8 - 16.

96 . " Many teachers , many principals have all been trained

in this m ethod so that they understand how to de - escalate

behavior verbally, how to work with students to offer choices

that you can do, versus doing this. " T r . I, p. 115 , line 24.

97 . Tomlinson noted that " r estraint " is a term used

" whenever we physically manage a person . . . the way we define

it is if you have to immobilize someone ' s limbs and they ' re not

free, they no longer have freedom of movement, that would be

considered a restraint. " T r . I, p. 116 , lines 5 - 10.

98 . In his opinion, restraint of anyone is the last resort.

T r . I, p. 117 , line 7.

99 . He added that " if you see that the behavior is

something that you can verbally begin to de - escalate, have

conversation with the child, the child is able to understand

rationally what it is that you ' re asking o f them, then you ' re

going to employ all of these strategies before you ever get to

that last resort. " T r . I, p. 118 , lines 4 - 9.

10 0 . Any time an employee in the d istrict has involvement

with a child and there i s a report of suspected institutional

abuse , Tomlinson is notified. Mr. Bonner (Human Resources) is

notified, and he, law enforcement , and the Department of Children

and Families all work through the process together. T r . I,

p. 122 , lines 16 - 23.

10 1 . Lockridge was removed and placed in the ESE

department , working in the reception area where there w as no

access to children while the investigation was ongoing. T r . I,

p. 123 , lines 6 - 11.

10 2 . Freedom of movement is good (the child likes the

freedom of running off and playing on a playground or d uring PE)

as long as they a re safe. T r . I, p. 126 , lines 19 - 23.

10 3 . " I f we end up bruising the child in anything that

means to us that we have applied the wrong process or the wrong

procedure. " T r . I, p. 127 , lines 4 - 8. 2 /

10 4 . " If the child starts fig hting back in the process

where there is restraint used, they ' re trying to get out of that,

you need to let them go. You may have to resume the restraint

once it is safe to do so. " T r . I, p. 127 , lines 9 - 11.

10 5 . " If the child isn ' t hurting anybody . . . from

crawling under (the desk) or crawling out of their desk . . .

then it would be appropriate to not bring attention or get

attention from someone. Instead, praise another child for acting

appropriately or remaining in their chair. This is an effect ive

approach to use. " T r . I, p. 128 , lines 3 - 25.

10 6 . It is " absolutely not appropriate , " in terms of

restraint, to sit on a child ' s hand. T r . I, p. 129 , lines 1 - 3.

1 07 . It is not appropriate to take a disabled child by the

wrist to try to get them to go where you want them to. The first

appropriate response is " take my hand and let ' s walk. " T r . I,

p. 131 , lines 17 Î p. 132 , line 3.

108 . Tomlinson testified, " I may take a person simply by

the elbow and follow me. . . . That . . . is after you have

exh austed the verbal demand for this. Because it ' s unnatural to

have to do that, to lead people or to pull them where you want

them to go . " T r . I, p. 132 , lines 14 - 24.

1 09 . The January 13, 2012 , mid - year review for Lockridge

shows improvement needed in j ob knowledge and skills and quality

of work. R esp . Exh. 5 ; T r . I, p. 143 line 25 Î p. 144 , line 2.

11 0 . Listed on Lockridge ' s mid - year evaluation at the time

was that he needed improvement in job knowledge and skills and

the quality of work. T he narrati ve indicate d that he was

required to work with the behavior analyst at Sam Gaines School

to review the appropriate protocols to follow to gain compliance

from the students with whom he i s working . Lockridge was

required to attend training offered behavior technicians on

early release and professional development days. T r . I, p. 149 ,

lines 6 - 14 ; P et . Exh. 19.

11 1 . Lockridge was directed to increase his knowledge of

behavioral tools to verbally de - escalate a situation, as well

as to remain objective inste ad of entering into a verbal

disagreement with students. It means not getting into a verbal

power struggle with the child. " Be calm, relaxed in the tone and

tenor of your voice and, whenever you work with the individual,

don ' t let that person bring you into the type of behavior that

they ' re exhibiting. " T r . I, p. 149 , line 4 Î p. 150 , line 4 ; P et .

Exh. 19.

11 2 . Finally, Tomlinson testified that it would n o t be

appropriate for a behavior technician to drive their fingernail

into the palm of any child. T r . I, p. 150 lines 5 - 9.

CONCLUSIONS OF LAW

11 3 . D OAH has jurisdiction over the subject matter and the

parties to this proceeding. §§ 120.569, 120.57(1), and

1012.33(6)(a)2 . , Fla. Stat.

11 4 . A s chool b oard is required to prove disciplinary

charges again st an employee by a preponderance of the evidence.

§ 120.57(1)(j), Fla. Stat.; M.H. v. Dep ' t of Child . & Fam s. , 977

So. 2d 755 (Fla. 2d DCA 2008) ; and Cropsey v. Sch . Bd. of Manatee

Cnty. , 19 So. 3d 351 (Fla . 2d DCA 2009).

11 5 . T he preponderance of the e vidence standard requires

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

" more likely than not " tends to prove a certain proposition. In

this case, that proposition would be whether or not there is just

cause to terminate Respondent. See Gross v. Lyons , 763 So. 2d

276, 280 n.1 (Fla. 2000).

1 16 . A hearing at DOAH before an administrative law judge

is " de novo ." Evidence must be developed at the administrative

hearing to justify the action contemplated by Petitioner. See

generally , § 120. 57(1)(j) and (k) , Fla. Stat . ( " All proceedings

conducted under this subsection shall be " de novo ." ).

11 7 . Further, a de novo proceeding is intended to formulate

and determine action by Petitioner and is not simply to review

action taken earlier or prelimi narily. Beverly Enters . - Fla . ,

Inc. v. Dep ' t of HRS , 573 So. 2d 19 (Fla. 1st DCA 1990) .

1 18 . Petitioner is the duly - constituted governing body of

the School District of St. Lucie County (Art. IX, § 4, Fla.

Const.; §§ 1001.20 and 1001.33, Fla. Stat.) and , thus , has the

statutory authority to adopt rules governing personnel matters

pursuant to section 1001.42(5) , Florida Statutes .

1 19 . A n agency or school board ' s interpretation of its own

rules and policies is entitled to deference. Beach v. Great W .

Bank , 692 So. 2d 146, 149 (Fla. 1997).

12 0 . Although this deference is not absolute, the courts

should defer to the agency unless the agency ' s construction

amounts to an unreasonable interpretation, or is clearly

erroneous. Legal Envtl. Assistance Found., Inc . v. Bd. o f Cnty .

Comm ' rs. o f Brevard Cnty . , 642 So. 2d 1081, 1083 - 84 (Fla. 1994);

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

2000).

12 1 . G ross insubordination has been found to constitute

sufficient cause to terminate an employee. Dol ega v. Sch. Bd. of

Miami - Dade C n ty . , 840 So. 2d 445 (Fla. 3d DCA 2003). See also

Johnson v. Sch . Bd. of Dade Cnty . , 578 So. 2d 387 (Fla. 3d DCA

1991) .

12 2 . M oreover, in certain circumstances, simple

" insubordination " has been held sufficient to warrant t ermination

of a public employee. Muldrow v. Bd . of Public Instruction , 189

So. 2d 414, 415 (Fla. 1st DCA 1966). In Muldrow , the court

adopted the dictionary definition of the term " insubordination "

and held:

Merriam - Webster New International Dictionary

( 3d ed. 1966) defines insubordination as a

disobedience of orders, infraction of rules,

or a generally disaffected attitude toward

authority. It is generally synonymous with

contumacious, which indicates persistent,

willful or overt defiance of authority a nd

obedience, somet imes contemptuous of

authority.

12 3 . Generally, in the absence of a rule or written policy

defining " just cause , " a s chool b oard has broad discretion to set

standards which subject an employee to discipline. Dietz v. Lee

Cnty. Sch. Bd . , 647 So. 2d 217 (Fla. 2d DCA 1994 )( concurring

opinion Judge Blue). " Just cause " for discipline or

" terminations for cause " must rationally and logically relate to

misconduct, some violation of the law , or dereliction of duty on

the part of the officer o r employee affected. State ex. rel.

Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948).

12 4 . Even in the absence of a specific rule of conduct

requiring that employees show proper respect for their employers,

as a matter of common sense, if not of common law, such a

requirement is inherent in the employment relationship. Jacker

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

1983). Significantly, the right of a public employer to

discipline an employee for " proper cause " embodies, without the

ne ed for separate delineation, the right to discipline for

failure to show proper respect to the employer. Jacker , s upra .

12 5 . T he s uperintendent of St. Lucie County Public Schools

has the authority to recommend that Respondent be terminated for

just cause under section 1012.40 , Florida Statutes, and the

applicable C BA .

1 26 . A t all material times, Respondent ' s terms and

conditions of employment were governed by section 1012.40 and the

CBA. Section 1012.40 provides , in pertinent part:

(1) As used in the s ection:

(a) " Educational support employee " means any

person employed by a district school system

who is employed as a teacher assistant, an

education paraprofessional, . . . or any

other person who by virtue of his or her

position of employment is not re quired to be

certified by the Department of Education or

district school board pursuant to §1012.39.

(b) " Employee " means any person employed as

an educational support employee.

(2)(a) Each educational support employee

shall be employed on a probationa ry status

for a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee ' s status shall continue from year

to year unless the district school

superintendent terminates the employee for

reasons stated in the collective bargaining

agreement.

(c) In the event a district school

superintendent seeks ter mination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice and

shall have the opportunity to formally appeal

the termination. The appeals process shall

be determined by the a ppropriate collective

bargaining process.

1 27 . Article XI, Section F.6.a. of the CBA , provides that

" [a]ny member of the Classified Unit may be dismissed by the

School Board during his/her term of appointment, when a

recommendation for dismissal is made by the Superintendent, for

just cause. " As defined by the CBA , " just cause " shall include:

insubordination; unsatisfactory work performance; neglect of

duty; and violation of School Board p olic ies and/or r ules which

Petitioner shall have the unilateral right to establish.

1 2 8 . Section 1012.23 provides Petitioner with the authority

to issue policies relating to personnel matters. Abiding by the

policies, procedures , and rules of Petitioner is a requirement of

employment.

1 29 . School Board Rule 6.301(3) , Disciplinary Guidelines

for Employees , provides:

(a) T he School District generally follows a

system of progressive discipline in dealing

with deficiencies in employee work

performance or conduct. Should unacceptable

behavior occur, corrective measures will be

taken to prevent re - occurrence. The

Superintendent is authorized to place

employees on administrative assignment and/or

leave as necessary during an investigation.

However, some behavior may be so extreme as

to merit immediate dismissal . (emphas is

added).

13 0 . School Board Rule 6.301(3)(b)(xix) prohibits,

violation of any rule, policy, regulation, or established

procedure. School Board Rule 6.301(3)(b)(i) prohibits

insubordination. Mr. Bonner, in his conversation with Respondent

regarding the first incident (with S tudent D.S.) , instructed

Respondent on not using inappropriate discipline for students.

And , just 12 school days later at Northport K - 8 School ,

Respondent used inappropriate discipline on S tudent V . S . I.

Mr. Bonner, as an administrat or, gave an administrative directive

or order to Respondent which he did not follow. That constitutes

insubordination.

13 1 . School Board R ule 6.301(3)(b)(viii) prohibits immoral

or indecent conduct. Respondent ' s conduct of sitting on a

child ' s hands is rough and heavy - handed conduct. It was also

negligent because Respondent was told not to use inappropriate

discipline . Likewise, i t constituted unsatisfactory work

performance. It was also a neglect of Respondent ' s duties

because he did not follow prop er protocol or training to restrain

a disabled student.

13 2 . School Board Rule 6.301(3)(b)(ix) prohibits abusive

and discourteous conduct or language towards students. By

engaging in inappropriate methods of discipline of a disabled

child, Respondent vio lated the rule prohibiting abusive or

discourteous conduct or language towards a student.

13 3 . School Board R ule 6.301(3)(b)(xii) and (xvi) prohibits

negligence and neglect of duty, respectively. By failing to

follow the directive of administration follo wing a formal L etter

of R eprimand and counseling, and engaging in an inappropriate

method of discipline on a disabled student just 12 days after

receiving a L etter of R eprimand, Respondent violated the rule

prohibiting negligence. Respondent had a duty a nd he failed to

properly discharge that duty.

13 4 . S chool Board Rule 6.301(3)(b)(xiv) prohibits

unsatisfactory work performance. By failing to follow the

directive of administration following a formal L etter of

R eprimand and counseling, and engaging in a n inappropriate method

of discipline on a student just 12 days after receiving a L etter

of R eprimand , as well as engaging in inappropriate methods of

discipline of a disabled child, Respondent violated the rule

prohibiting unsatisfactory work performance.

1 3 5 . School Board R ule 6.301(3)(b)(xix) prohibits violation

of any rule, policy, regulation, or established procedure. By

failing to follow the directive of administration following a

formal L etter of R eprimand and counseling, and engaging in an

inappro priate method of discipline on a disabled student just

12 days after receiving a L etter of R eprimand , Respondent

violated the rules, policies, regulations , and established

procedures of Petitioner .

1 36 . School Board R ule 6.301(3)(b)(xxxviii) prohibits

ina ppropriate method s of discipline. Respondent admitted he sat

on V . S . I . ' s hands, causing injury. By failing to follow the

directive of administration , following a formal L etter of

R eprimand and counseling, and engaging in an inappropriate method

of disci pline on a disabled student just 12 days after receiving

a L etter of R eprimand, Respondent violated the rule prohibiting

inappropriate method s of discipline .

1 37 . School Board Rule 6.301(3)(b)(xxix) prohibits, " any

violation of the Code of Ethics of the Education Profession, the

Principals of Professional Conduct for the Education Profession,

the Standards of Competent and Professional Performance, or the

Code of Ethics for Public Officers and Employees. "

1 38 . Respondent ' s actions in September 2014 and May 2015,

viewed in their entirety, demonstrate that:

(a) R espondent failed to exercise the best professional

judgment (Fla . Admin. Code R. 6A - 10.080);

(b) Respondent failed to always have the concern for

students as his primary professional concern (F la . Admin. Code

R . 6A - 10.080); and

(c) Respondent failed to make a reasonable effort to

protect the students from conditions harmful to learning and/or

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

(F la. Admin. Code R. 6A - 10.081).

1 3 9 . This violated the Code of Ethics of the Education

Profession in Florida with which all the St. Lucie County School

District employees were required to abide.

14 0 . Respondent ' s violation of the above - mentioned School

Board rules and/or sections of the Code of Ethics constituted

" just cause " for Respondent ' s termination from the position of

ESE b ehavior t echnician. P et . Exh. 24.

14 1 . Petitioner has proved in this proceeding, by a

preponderance of the evidence , that Respondent engaged in

i nsubordination; i mmor al or indecent conduct; a busive or

discourteous conduct or language to students; n egligence;

u nsatisfactory work performance; n eglect of duty; v iolation of

any rule, policy, regulation, or established procedure; and

i nappropriate method of discipline, and has neglected his duties

and violated one or more School Board r ules, which establishes

just cause for termination.

14 2 . By his own admissions, Respondent is not sufficiently

capable or suited to be involved in the care or custody of the

children he was c harged to protect and oversee.

14 3 . In summation, based on the totality of the

circumstances proven by Petitioner , the undersigned concludes

that Respondent ' s conduct and actions herein constituted " just

cause " for dismissal under the applicable CBA provi sions, as well

as being " behavior so extreme as to merit immediate dismissal. "

14 4 . Respondent's repeated conduct, after clear and fair

warning, combined with Respondent ' s own admission regarding his

unsuitability to supervise disabled students, further j ustifies

the action proposed by Petitioner.

RECOMMENDATION

Based on the foregoing proposed Findings of Fact and

Conclusions of Law, it is RECOMMENDED that a f inal o rder be

entered by the St. Lucie County School Board terminating

Respondent from his positio n as a n ESE behavior technician.

DONE AND ENTERED this 4th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April , 2016 .

ENDNOTE S

1/ This was inconsistent with the testimony from Ms. Staab, and

the undersigned finds her testimony more persuasive.

2/ The undersigned credits testimony from other witnesses that

Lockridge caused bruising to the child ' s wrist area.

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Barbara Lee Sadaka, Esquire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

(eServed)

Wayne Gent, Superintendent

S t. Lucie County School Board

4204 Okeechobee Road

Ft. Pierce, Florida 34947 - 5414

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(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 this Recommended Order should be filed with the agency that

will issue the Final Order in this case.