16-000272TTS Indian River County School Board vs. Joseph Nathaniel Status: Closed Recommended Order on Tuesday, January 31, 2017.

Summary: Respondent's altercation with a student, which directly resulted from the student's disruptive, violent, and potentially dangerous conduct, did not provide just cause for dismissing Respondent from his position as a school teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY SCHOOL

BOARD,

Petitioner,

Case No. 1 6 - 0 272 TTS

vs.

JOSEPH NATHANIEL ,

Respondent.

/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing in Vero Beach, Florida, on

October 17 through 19 , 20 1 6 .

APPEARANCES

For Petitioner: Jason L. Odom , Esquire

Gould Cooksey Fennell, P.A.

979 Beachland Boulevard

Vero Beach , Florid a 329 63

For Respondent: Mark S. Wilensky, Esquire

Dubiner and Wilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington , Florida 33414 - 8594

STATEMENT OF THE ISSU ES

The issues in this case are w hether , as the district school

board alleges, Respondent got into an altercation with a student

which allegedly involved taunting, pushing, and yelling; and, if

so, whether such contact or conduct constitutes just cause for

Petitioner's dismissing Respondent from his position as a school

teacher .

PRELIMINARY STATEMENT

At its regular meeting on January 12 , 201 6 , Petitioner

Indian River County School Board voted to approve the

superintendent's recommendation that Respondent Joseph Nathaniel

be terminated from his employment as a teacher. The reasons for

t his action had been spelled out in a Charging Letter dated

December 18 , 201 5 . In th at charging document, Mr. Nathaniel i s

accused of having engaged in a verbal and physical altercation

with a student on November 17, 2015.

M r . Nathaniel timely requested a formal administrative

hearing to contest Petitioner's intended action. Shortly

thereafter, Petitioner forwarded the matter to the Division of

Administrative Hearings, which opened a file on January 15 ,

2 01 6 .

At the final hearing, which , after several continuances,

took place on October 17 through 19 , 20 1 6 , Petitioner called the

following witnesses: Cathy Bradshaw, J.S., Deputy Eric Sesack,

S.H., Diana Moskowitz, Jessica Rojas, Isaiah Speights, Dr. Mark

Rendell, and Respondent. Petitioner's Exhibits 7 through 15,

19, and 25 were admitted into evidence, and official recognition

was taken of Petitioner's Exhibit 5.

Respondent testified on his own behalf and presented the

following additional witnesses: James Lakendrick Willis, F.M.,

D.W., H.D . , Christopher Jefferson, and Tyrone Perry .

Respondent's Exhibits 1, 2, 6, 7, 9, 18, and 22 were received as

well.

T he final hearing transcript was filed on November 4, 2016 .

Each party timely filed a Proposed Reco mmended Order on

December 5, 201 6 , the deadline established at the conclusion of

the hearing .

Unless otherwise indicated, citations to the official

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

201 6 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Indian River County School Board ("School Board" or

"D istrict" ), Petitioner in this case, is the constitutional

entity authorized to operate, control, and supervise the Indian

River County Public School System.

2. At all relevant times and as of the final hearing, the

District employed Respondent Joseph Nath aniel (" Nathaniel " or

"Coach Joe" ) as a teacher . Nathaniel was assigned to work at

Sebastian River High School in Sebastian, Florida, for the

2015 - 16 school year . I n previous years , though not that one,

Nathaniel had been an assistant football coach, wh ich is why

Nathaniel is commonly known as Coach Joe . As an employee of the

District for about 13 years before the events giving rise to

this proceeding, Nathaniel had never been found to have

committed a disciplinable offense.

3. The events in dispu te occurred on November 17, 2015.

That morning, Nathaniel was on duty during the school's first

lunch period (between, roughly, 11 :00 a.m. and noon) as a

hallway monitor, a task to which he and other suitable teachers

were regularly assigned. Coach Joe w as responsible for keeping

those students not on their lunch break in class and the ones

who were supposed to be at lunch out of trouble.

4. When this period began , a man named Isaiah Speights,

18, was in class , as scheduled. His teacher, Cathy Bradshaw,

had started working at Sebastian River High School only a few

weeks earlier. At around 11:15 a.m., Isaiah asked Ms. Bradshaw

for a hall pass so that he could use the bathroom, and she gave

him permission to leave the classroom, which he di d.

5. Elsewhere , around the same time, Coach Joe was about to

encounter a group of students loitering in the hallway. When he

did a few minutes later, he posed to each student questions such

as "Who are you?" and "Where are you supposed to be?" before

sending them off to their respective classes. As this was

taking place, Isaiah happened to be returning to his class on

the hall pass Ms. Bradshaw had given him. He saw Nathaniel and

the students and paused momentarily to survey the scene.

6. Instead of walking on, Isaiah mimicked Nathani e l, who

had not noticed Isaiah behind him, calling out: "Who the fuck

are you, and where are you supposed to be?" thereby managing to

be at once insolent, insubordinate, and foul - mouthed.

( Incredibly, if sadly, the e vidence suggests that students at

Sebastian River High School commonly address teachers using

similarly vulgar language ÏÏ evidently because such verbal

defiance is either not punished, or is not punished severely

enough to stop it from being commonplace . )

7. Coach Joe wheeled around to see who had mocked him, and

he observed Isaiah ÏÏ who had grabbed hold of an overhead door

frame with one hand ÏÏ dangling by an arm, swinging and twisting

his body in a display that was the very picture of impertinence .

Showing considerable self - restraint, Coach Joe asked Isaiah

where he was supposed to be and, after seeing Isaiah' s pass,

told him to get back to class. Complying, Isaiah swung around

and walked down the hall, away from Nathaniel, turn ing left to

enter Ms. Bradshaw's classroom.

8. Coach Joe's transactions with Isaiah and the other

students having been completed , he started walking to his own

classroom , which was loca ted further down the same hall as

Ms. Bradshaw's. This meant that, by coincidence, Coach Joe

"followed" Isaiah ÏÏ not in pursuit, but in the sense that he took

the same route a s the student had appro ximately ten seconds

earlier . Coach Joe noticed that Isaiah had entered

Ms. Bradshaw's room.

9. Nathaniel knew Ms. Bradshaw was new to the schoo l, and

he decided to inform her that students should not routinely be

all owed out of class on passes during lunch periods, when other

students are on break. Nathaniel stuck his head in

Ms. Bradshaw's room, or perhaps stood just inside the doorway

(accounts differ) , as he intended to make only a brief stop, and

gave her a friendly reminder not to let students out of class. 1 /

Nathaniel's comment was directed to Ms. Bradshaw ÏÏ he was not

addressing (much less reprimanding) Isaiah .

10. When Coach Joe arrived , Isaiah had been standing at

the front of the class, joking around with Ms. Bradshaw . As

soon as Nathaniel spoke to Ms. Bradshaw, Isaiah , with a smirk on

his face, interjected, "Why the fuck are you behind me,

nigger?" ÏÏ and laughed. This astonish ingly disrespectful and

provocative challenge to Coach Joe's authority took place in

front of the entire classroom of approximately two dozen

students . 2 /

11. Isaiah's taunting predictably drew Coach Joe all the

way into the classroom as he reasonably felt the need

immediately to assert his control over the situation and the

student. (Had Coach Joe simply walked away at this point, the

incident probably would not have "escalated" ÏÏ "escalation"

being, in the School B oard's view, something to be avoided at

practically all cost s ÏÏ but then, such a submissive retreat in

the face of the student's overt dominance display would have

sent a clear message to everyone in the classroom that Isaiah

possessed the power to make Coa ch Joe surrender .) Approaching

Isaiah, Nathaniel instructed the student, firmly but not

angrily, to give Ms. Bradshaw the hall pass and take his seat.

Isaiah refused to give back the pass and sit down ÏÏ this is

undisputed . Had Isaiah simply given back th e pass and sat down,

th e situation would have ended . Ins tead , Isaiah gave Nathaniel

back talk and stood his ground , causing the situation to

escalate.

12. What happened next is hotly disputed, and there is

conflicting evidence in the record relating to t he ensuing few,

crucial minutes. It is worth noting , however, that, to this

point, Isaiah had been the only aggressor, while Nathaniel, the

target of Isaiah's unprovoked verbal attacks, ha d done nothing

to or affecting Isaiah that could reasonably be view ed as a

provocation; if anything, Nathaniel's responses , so far, had

been measured and lenient.

13. Around this time, Isaiah began to clench his fists and

posture in the manner of the cartoon character, the Hu lk.

Nathaniel interpreted Isaiah's pose as a form of agonistic

behavior and felt that Isaiah was attempting to build momentum

for a physical attack of some sort. In light of the event s

leading up to this moment, Nathaniel's interpretation was

reasonable. Nathaniel asked Isaiah if he (Isaiah) was going to

do something with his hands.

14. By now, the confrontation between Isaiah and Coach Joe

had attracted the attention of the students. One of them, S.H.,

began recording the incident using her cell pho ne's movie

camera. She filmed about 39 seconds and stopped. After an

indeterminate period, she resumed filming for about 12 seconds,

and then stopped again. The District relies heavily upon the

two video clips that this student made, especially the long er,

first clip.

The Cell Phone Movies

15. Given the prominence of filmic evidence in this case,

the undersigned will interrupt the narrative to discuss,

briefly, his view of the role of a fact - finder in evaluating

proof of this nature.

16. It is temp ting to assume that filmic evidence is, as

the District beli eves, "objective and not biased " ( Petitioner's

Proposed Recommended Order at 4 ) ; that it conveys the same,

obvious meaning to every viewer and, being thus unambiguous,

requires no interpretation; and that, rather than comprising a

series of images that resemble reality, the moving pictures are

reality, making every viewer an eyewitness to the scene. The

unders igned rejects all of these premises.

17. Aside from the intentional bias that might be

introduced through editing or doctoring a film, of which there

is no evidence here, video has inherent limitations that

undermine its supposed objectivity. The most o bvious is that

all films have a point of view. The camera records from one

angle to the exclusion of all others, tricking the viewer into

thinking that the visual perspective of the movie is the only

one that matters and constitutes the indisputable truth .

18. In the instant case, the film was shot from the back

of the classroom, giving the viewer the point of view of a

student somewhat removed from the action. For the most part,

Coach Joe is facing the camera, which means that the viewer gets

a relativ ely good look at his face and movements, and can hear

most of what he says. Isaiah, in contrast, has his back to the

camera; the viewer cannot clearly see everything he does, and

most of what he says is inaudible. The effect is to amplify

Coach Joe's act ions while minimizing Isaiah's.

19. Imagine that , instead of providing a back - row seat

perspective, the film had been shot from the front of the

classroom, behind Coach Joe, so that Isaiah would be facing the

camera, giving the viewer a point of view m ore closely

resembling that of Nathaniel. This perspective would bring

Isaiah's actions clearly into view and his words into the

viewer's ears. The viewer would also be able to see ÏÏ as

Nathaniel himself could have ÏÏ the other students, sitting in t he

back ground like an audience, watching to see who would prevail .

Isaiah, not Coach Joe, would be the "star" of this hypothetical

film, which, no doubt, would tell a different story from the one

we have.

20. Another limitation of the filmic evidence in this case

is that it is not complete. The video begins in medias res ,

with Coach Joe reacting to Isaiah's agonistic behavior , which

has taken place beforehand, off camera. Of course, the video

tempts the viewer into believing that anything not shown in the

fi lm must not have happened ÏÏ and that is a form of bias.

Further, when the mov i e starts, Coach Joe already seems a little

upset , his voice slightly raised as he says to the student

(whose back is to the viewer): "You gonna do something with

y our hands? Ar e you about to do something with your hands?"

The viewer really cannot see Isaiah's hands, and to the extent

glimpses of them come into sight, no clearly threatening

gestures are visible. The effect, right off the bat , is to

represent Coach Joe as a man who, being unaccountably agitated ,

is berating a student for no apparent reason. This, too, is

bias.

21. Films tell stories. In this sense, video evidence is

assertive in nature; it "speaks" to the viewer and ÏÏ at least

metaphorically ÏÏ "testifies" to t he fact - finder. The easy

mistake is to assume that the narrative of the video is

unambiguous. It is not. Viewers project onto the images their

own interpretations of the meaning and significance of the

conduct depicted.

22. Som e ambiguity in the film might arise from

mechanical, technical, or production flaws . Here, S.H. shot her

movies from a distance, on a cell phone, so that the orientation

of the screen is a narrow, vertical window ; consequently, while

straining to see what is going on in the fil m , one gets the

feeling of spying through a rectangular keyhole. The images are

small, moreover, and magnification only reduces the resolution,

degrading the quality of the picture. Because S.H. was so far

back , students periodically move in front of the camera,

blocking our view of Coach Joe and Isaiah at important moments.

The sound quality is so - so; we can hear Coach Joe fairly well,

but not Isaiah. All of these shortcomings add up to a general

lack of clar ity, creating uncertainty about what is being shown.

2 3 . Aside from the foregoing deficiencies, the narrative

of the film is not clear and unambiguous; it is subject to

different interpretations. Some viewers of the main video in

this case, for example , perceive in Isaiah's actions an attempt

on his part to retreat and deescalate the situation. The

undersigned, in contrast, having watched the tape dozens of

t imes, sees nothing of the sort. A s the undersigned construes

the film , Isaiah appears never to retreat, except ta ctically and

then only as necessary; indeed, he seems always to be on the

offensive, constantly looking for advantage in the scuffle that

follows . The narrative of Isaiah the practically innocent

bystander trying his best to defuse Coac h Joe's inexplicable

rage strikes the undersigned as laughable ÏÏ but is one, he

supposes, that a reasonable viewer might see in the video if

that is what he wants to believe took place.

24 . Finally, there is the temptation to believe that the

video is the event, rather than a representation of the event.

This temptation tricks the viewer into thinking that, by

watching the video, he has enjoyed unmediated access to the

disputed event, becoming an eyewitness to the truth. But this

is clearly not the ca se. The video is merely a medium of

delivering content ; it mediates some, but not nearly all, of the

relevant data from the historical event at issue, in a manner

that inform s (and arguably entertains) rather than re - creates ,

and hence is neither infallib le, unimpeachable, n or inerrant.

2 5 . In sum, video evidence has strengths and weaknesses

that are different fro m those of, say, an eyewitness. Filmic

evidence is potentially very strong evidence, to be sure, but

moving pictures should not be considered inherently superior to

other types of evidences, and video proof should not be accorded

great deference or automatic credibility on the ground that film

is special . Video evidence is especially useful in accurately

conveying what someone said (where the audio is clear) and for

establishing precise time frames. It might assist us in

visualizing what occurred. But f ilm ic proof is not helpful , or

is at best of limite d value, when it comes to making assertions

about the significance, meaning, and story of the images

captured therein; these require the application of human

intelligence based upon a careful consideration of all the

available evidence. Ultimately, t he fa ct - finder must critically

review video evidence, keeping in mind the limitations of this

medium , and determine its relative persuasive value in the

context of the entire record. That is what the undersigned has

done in this case.

Back to the Narrative

2 6 . "You gonna do s omething with your hands? . . . Are

you about to do s omething with your hands? . . . I suggest you

give the lady her pass, and go sit your behind down." These are

first three sentences that Coach Joe utters in the video. It

takes him about nine seconds to make these statements ÏÏ nearly

one - quarter of the main video. During this period, Isaiah is

talking, but his words cannot clearly be heard. One thing is

obvious and undisputed, however: Isaiah does not comply.

27. The importan ce of this point must be emphasized. Up

to now, the only directives that Coach Joe has given Isaiah are

to return the pass and take his seat. Despite everything that

has already happened, beginning in the hallway, Coach Joe has

not reprimanded, scolded, or punished Isaiah. He has not

ordered him to do anything unreasonable or unjustifiable,

unlawful or demeaning. He has directed Isaiah to sit down.

Isaiah has no reasonable grounds for disobeying this most basic

of directives from a teacher to a student ÏÏ none whatsoever.

28. An d yet Isaiah disobeyed. Instead of complying with

the unambiguous command to sit down ÏÏ a reasonable directive that

Coach Joe clearly had the authority to give ÏÏ instead of backing

gracefully out of an increasingly tense situati on that he

himself had initiated without any reasonable cause ; instead of

simply taking his seat and submitting to the teacher's

reasonable exercise of legitimate authority, Isaiah upped the

ante: he mouthed off. "I'm telling you this right now . . . ,"

Isaiah started to say, as if he had the right to tell Nathaniel

what would or should be done.

29. Naturally, Nathaniel could not permit a student to

tell him what to do, particularly in front of a roomful of

students. He promptly set Isaiah straight : " You don't tell me

nothing." Isaiah then jabbed Coach Joe in the stomach, which

startled the teacher . "What?!" said Coach Joe, as his arms

raised slightly in surprise before swiftly shooting forward to

shove Isaiah back and out of striking range.

30 . Again, it is necessary to pause for elaboration. The

School Board attempts to downplay the crucial fact that Isaiah

escalated the situation , rapidly and dramatically , when he poked

Coach Joe in the stomach, committing the first act of physical

aggression, which constitute d a battery. To be very clear, this

was not an act of self - defense on Isaiah's part ; no one, not

even Isaiah, makes that claim . Before Isaiah struck him,

Nat haniel had not touched Isaiah, or even threatened to touch

the student; he had merely told him to sit down, which Isaiah

unreasonably refused to do. The School Board refers to Isaiah's

battery upon Coach Joe as incidental, de minimis contact, a

"slight to uch," but the undersigned rejects this

characterization. Isaiah deliberately poked his fist into Coach

Joe, leaning in to make the blow and pushing off from the

teacher's stomach. The force of th is blow ÏÏ whether it was

powerful enough to inflict pain or just annoyed Coach Joe ÏÏ is

irrelevant. The student crossed a bright, red line when he

intentionally struck the teacher for no reason.

31. Upon being pushed, Isaiah stumbled momentarily ,

involuntarily taking two or three steps backwards before

regainin g his balance and purposefully setting his feet. As

this happened, Coach Joe said, "Don't use your hands o n me,

little boy!" Contrary to the notion that Isaiah retreated

(which is false), Isaiah in fact squared off and then moved

slightly toward Coach Jo e. When Isaiah came forward, Nathaniel

yelled at him: "Don't you ever put your hands on me!" As if t o

punctuate the point, Coach Joe pushed Isaiah's forehead with his

right forefinger while articulating the word "ever , " causing the

student's head and sh oulders to rock back, either from the force

of the blow or because Isaiah simultaneously bent backwards in

an evasive maneuver or from flinching ÏÏ probably a combination of

the se .

32. Still, Isaiah failed to heed Coach Joe's warning not

to use his han ds . He lunged at Nathaniel, striking the teacher

around the shoulders and knocking him back . Coach Joe

straightened up and pointed at Isaiah with his left index

finger, shouting, "Do you understand that?" Obviously Isaiah

did not understand that he was not to use his hands on the

teacher , for he began slapping at Coach Joe's finger, pushing

his arm down.

33. Coach Joe, clearly angry now , yelled at Isaiah:

"Don't you ever put your hands on me. Don't you ever ÏÏ EVER ÏÏ put

your hands on me!" Isaiah screamed back, "Get the fuck off me

man!" Ms. Bradshaw interjected at this point: "Sit down,

Isaiah. Sit down." That, of course, would have been the

sensible thing for Isaiah to do. Instead, removing an obstacle

between himself and Coach Joe, Isaiah picked up a desk and

hurled it, end - over - end, behind his body, towards his

classmate s , in reckless disregard of the harm this heavy object

might cause if it struck someone, which fortunately did not

happen, but easily could have.

34. Once the desk was out of the way, Isaiah charged Coach

Joe, and the two began to tussle. Coach Joe, who stands roughly

six feet, four inches tall, has a height advantage of about four

inches on Isaiah. At approximately 350 pounds, Nathaniel

outweighed the younger man , too, by nearly 200 pounds, more or

less. But Isaiah, trim and athletically built , had the

advantages of speed and agility. Coach Joe could use his size

advantage to subdue Isaiah if he could get his arms around the

student. Nathaniel's concern ÏÏ a reasonable one ÏÏ was that Isaiah

would scramble under him and knock him over; if Isaiah managed

to get Nathaniel on his back , Nathaniel would lose most of the

advantages his size gave him.

35. At first, Isaiah kept free of Nathaniel's grasp. When

the tea cher grabbed Isaiah's shirt, Isaiah slipped out of the

garment. Eventually, however, the two wound up in a boxers'

clinch. The testimony is in conflict as to what transpired

while the two men grappled , and the video evidence is

inconclusive , the camera b eing too often either turned away from

the action or prevented from taking a good shot by students

getting in the way . Nathaniel testified that Isaiah had gotten

a piece of his shirt in one hand and was choking him with it,

while using his other hand to t hrow short punch es at Nathaniel's

jaw. Isaiah denied doing these things. Near the end of the

main video, however, Coach Joe can clearly be heard saying

several times: "Swing! Swing! Swing!"

36. The School Board argues that Coach Joe was taunting

Isaiah by urging him to take a swinging punch. Nathaniel

testified that he wanted Isaiah to swing so that Isaiah would

release the teacher's shirt, which was tugging against his

throat and choking h im ÏÏ an explanation the School Board calls

"absurd." But the undersigned finds Coach Joe's testimony to be

credible. What makes little sense is the idea that Coach Joe

was taunting Isaiah, for at that moment, Coach Joe did not yet

have the upper hand , and he certainly had no need to encourage

Isaiah to react violently, as Isaiah had already done so without

provocation or reasonable cause.

37. The motivation behind Coach Joe's egging Isaiah on to

take a swing most likely was, as Nathaniel testified, to go ad

Isaiah in to releas ing his grip on Nathaniel's shirt . Whether

this tactic worked is unclear, but Coach Joe eventually got his

arms around Isaiah and wrapped him up in a bear hug so that the

student could not break free. This enabled Nathaniel to wrestle

Isaiah to the ground and pin him on his back.

38. While the struggle was under way, another teacher,

Chris Jefferson, had entered the room for reasons unrelated to

Isaiah or Coac h Joe. Mr. Jefferson saw that Isaiah needed to

calm down before Nat haniel could release him because the student

was twisting, squirming, and shouting uncontrollably, imploring

Mr. Jefferson (or somebody) to "get this big motherfucker off of

me!" Mr. Jefferson urged Isaiah to relax. When Isaiah finally

stopped resisting, Mr. Jefferson said, "Coach Joe, let him up."

Nathaniel let go of Isaiah and stood up.

39. Isaiah remained in a rage. He flipped over another

desk and tried to use the classroom telephone , but Nathaniel

prevented him from making a call. Isaiah screamed at

Ms. Bradshaw to call both his mom and an assistant principal

named Dr. Keaton. As he did so, the school resource officer,

Deputy Eric Sesack, and the school security officer, David

Lunsford, entered the room.

40. Deputy Sesack directed Isaiah to l eave the classroom

and go to the office. Isaiah stormed out , unaccompanied; that

is, he was allowed to take off on his own. Deputy Sesack,

Mr. Lunsford, Coach Joe, and Mr. Jefferson followed Isaiah ÏÏ but

at some distance.

41. That Isaiah was permitted to stalk the hallways

without escort is troubling, given that he had lost control of

himself and was a danger to others . In the words of teacher

Kendrick Willis, who was in the hallway and saw Isaiah, the

student was "yelling and screaming" and "going cr azy." Th e fact

of Isaiah's meltdown cannot seriously be disputed, considering

what he did next , which was, first, punch a metal locker and,

second, kick a water f ountain with enough force to knock it off

the wall. Although this criminal act was committed in plain

view of a law enforcement officer, Deputy Sesack did not arrest

Isaiah because he felt that attempting to subdue the student at

that point would be too risky.

42. Moments later, Isaiah, agitated and shir tless, barged

into the front office, where he demanded that he be allowed to

use the telephone at the counter. The secretary on duty gave

Isaiah "permission" to make a call, but it would probably be

more accurate to say that she acceded to his demand. In any

event, the secretary obviously had no idea that Isaiah had just

recently committed a battery upon a teacher and vandalized

school property , so her permission ÏÏ if it can be called that ÏÏ

was not predicated on knowledge of all the material facts.

43. Coach Joe arrived in the office about 24 seconds

behind Isaiah . Seeing Isaiah about to use the phone, Nathaniel

abruptly revoked the privilege by grabbing the han dset from

Isaiah. The School Board contends that this action amounted to

an unprovoked "esca lation." The undersigned does not see it

that way. The evidence shows, for one, that Coach Joe and

others (Messrs. Jefferson and Willis) worried that Isaiah might

use the phone to summon someone to the school to cause trouble.

Whether or not this concer n was well - founded the undersigned

cannot determine, but it is noteworthy that , in fact, they all

shared it.

44. More important, Isaiah should not have been allowed to

freely use the telephone at that moment , as though he were i n

the middle of an ordinary day, just minding his own business ,

innocent of any misconduct. Rather, Isaiah should have been

treated as a suspect in at least two crimes ( battery and

criminal mischief) for which there was probable cause to believe

he had recently committed during sch ool hours, on school

property. Based on the evidence of record, the undersigned

determines that Coach Joe was one of the only adults present who

seemed to understand that Isaiah should be detained, questioned,

and perhaps arrested ÏÏ not allowed to go on his merry way.

Taking the telephone away from Isaiah was reasonable under the

circumstances.

45 . As Coach Joe sensibly forbade Isaiah from using the

telephone , Deputy Sesack arrived on the scene . The police

officer removed Isaiah from the office and, once outside, gave

the student a cell phone to use. Isaiah placed a call to a

family member and soon thereafter left campus in a friend's car ,

since no one present saw fit to take him into custody . Later,

Isaiah would be suspended for kicking the water f ountain, but

because he withdrew from Sebastian River High School , this

suspension was never served.

46. The District based its preliminary decision to

terminate Nathaniel's employment on the grounds, at bottom, that

he had unreasonably made physical cont act with , taunted, and

threatened Isaiah , all of which , together or individually,

constituted a failure to protect the student from personal

injury or conditions harmful to learning ; an intentional

infliction of unnecessary embarrassment or disparagement; and a

disruption of the learning environment. The undersigned rejects

these premises and determines as a matter of ultimate fact ,

based on the evidence adduced at hearing, that it was Isaiah who

disrupted the learning environment; Isaiah who intentionally

disparaged (and attacked) Coach Joe; and Isaiah who created

conditions harmful to learning. Coach Joe's duty was to make

reasonable efforts to protect students and himsel f from Isaiah .

47. Coach Joe discharged his duty . Isaiah was way out of

line, and somebody in authority needed to put the student in his

place. It fell to Nathaniel to do so. Had Coach Joe been

"nice" to Isaiah and let him have his way, as the Dist rict seems

to believe would have been preferable, Isaiah's appalling

behavior would have received positive reinforcement, making it

more likely that Isaiah would act that way again. Other

students would have been encouraged to emulate Isaiah's conduct .

T he learning environment would have suffered. Fortunately for

Sebastian River High School, Coach Joe had the fortitude to

stand tall, roll up his sleeves, and do the tough job of keeping

a foul - mouthed, defiant, and violently aggressive studen t from

causin g further damage. For this he should be given a pat on

the back, not a pink slip.

CONCLUSIONS OF LAW

4 8 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 1012.33(6)(a)2., 120. 569, and 120.57(1), Florida

Statutes.

49 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the allegations "need not be set forth with the technical nicety

or formal exactness required of pleadings in court," Jacker v.

Sch ool Board of Dade C ounty , 426 So. 2d 1149, 115 0 (Fla. 3d DCA

1983), the charging document should " specify the rule the agency

alleges has be en violated and the conduct which occasioned the

violation of the rule , " i d. a t 1151 (Jorgenson, J. concurring).

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

charges, has delineated the offenses alleged to justify

suspension or termination, t hose are the only grounds upon wh ich

such action may be taken . See Lusskin v. Ag . for Health Care

Admin . , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep ' t

of Ins . , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v.

Dep ' t of Bus . & Prof ' l Reg . , 62 5 So. 2d 1237, 1238 - 39 (Fla. 2d

DCA 1993); Delk v. Dep ' t of Prof ' l Reg . , 595 So. 2d 966, 967

(Fla. 5th DCA 1992); Willner v. Dep ' t of Prof ' l Reg ., B d . of

Med . , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576

So. 2d 295 ( Fla. 1991).

5 1 . In an administrative proceeding to suspend or dismiss

a member of the instruc tional staff, the school board bears the

burden of proving, by a preponderance of the evidence, each

element of the charged offense(s) . S e e, e.g. , McNeill v.

Pinellas Cnty . Sch . Bd. , 6 78 So. 2d 476, 477 (Fla. 2d DCA 1996) .

5 2 . The instructional staff member's guilt or innocence is

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

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

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

(Fla. 1st DCA 1995).

53 . In its Charging Letter , the School Board asserted

several theories for terminating Nathaniel's employment, e ach of

which depend ed on factual allegation s that the School Board

failed to prove. In a nutshell, the School Board blamed Coach

Joe for Isaiah's inexcusable and intolerable behavior, asserting

that the "situation could have been avoided by you [that is,

Nathaniel] if you had not 1) taunted the student w ith the

comments 'are you going to do something with your hands' ,

2) continued to move toward the student in an aggressive manner

forcing him to step backwards, and 3) physically push [ed] and

yell[ed] at the student." The School Board further alleged tha t

Nathaniel had "escalated the situation, both verbally and

physically" and had acted in a manner that was "harmful to the

student's physical and mental health ," disparaged the student,

and caused him unnecessary embarrassment.

54 . Contrary to these alle gations, although Nathaniel had

no burden to establish his innocence, the facts as set forth

above demonstrate that Coach Joe complied with the Principles of

Professional Conduct for the Education Profession in Florida

when he reasonably subdued Isaiah, wh o was defiant, disruptive ,

disorderly, and physically aggressive, potentially endangering

2 5

others and causing the kind of commotion that interferes with

classroom instruction and is harmful to learning. See Fla.

Admin. Code R. 6A - 10.081 (3)(a)( The teacher "[s] hall 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. " ) ; see also Packer v. Orange Cnty. Sch.

Bd. , 881 So. 2d 1204, 120 8 (Fla. 5th DCA 2004) ( school bo ard must

adopt ALJ's finding that there was no improper touch ing when

teacher applied reasonable force against a disruptive student

for the lawful purposes of maintaining order and protecting

other s ).

55 . To be very clear, the entire situation could have been

avoided, contrary to the School Board's unsubstantiated

allegations, if only Isaiah had not impudently and gratuitously

mocked Coach Joe in the hallway ; had not called Coach Joe a

nigger, without the slightest provocation, in Ms. Bradshaw's

classroom; had not obstinately refused , without any grounds, to

obey the simple command to just take his seat; and had not

committed a battery upon a teacher . Someone escalate d the

situation, all right. That someone was Isaiah.

56 . Thus, all of the charges against Nathaniel necessarily

fail, as a matter of fact. Due to this dispositive failure of

proof, it is not necessary to make additional conclusions of

law.

RECO MMENDATI ON

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Indian River County School Board

enter a final order exonerating Nathaniel of all charges brought

against him in this proceeding .

DONE AND ENTERED this 31st day of January , 201 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 31st day of January , 20 1 7 .

ENDNOTES

1 / Some witnesses recall Co ach Joe saying, "Don't let him

[ meaning Isaiah ] out of class." In this version, Nathaniel's

focus is on Isaiah, instead of the general policy of keeping

kids in class during lunch periods. The distinction makes no

difference.

2 / As both Coach Joe and Isaiah are African American, Isaiah's

statement seems neither to have been intended nor understood as

a racial slur; the name - calling was meant, no doubt, to belittle

and demean Coach Joe as a teacher, authority figure, and man ,

but probably not as a black man. Still, the extreme

offensiveness of Isaiah's contemptuous comment is self - evident,

even if it was not likely racist in nature.

COPIES FURNISHED :

Jason L. Odom, Esquire

Gould Cooksey Fennell, P.A.

9 79 Beachland Boulevard

Vero Beach, Florida 32963

(eServed)

Mark S. Wilensky, Esquire

Dubiner and Wilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington , Florida 33414 - 8594

(eServed)

Dr. Mark J. Rendell , Superintendent

Indian River County School Board

6500 57th Street

Vero Beach, Florida 32 9 67

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.