18-002523TTS Duval County School Board vs. Julianna Woessner Status: Closed Recommended Order on Thursday, September 27, 2018.

Summary: The School Board failed to prove that Respondent used inappropriate force to remove a child from her classroom or that Respondent used an unauthorized intern.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 2523TTS

JULIANNA WOESSNER,

Respondent.

_____________________________ /

RECOMMENDED ORDER

A final hearing was conducted in this case on June 28,

2018, in Ja ck sonville, Florida, before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings .

APPEARANCES

For Petitioner: Tracey Kort Parde , Esquire

City of Jacksonville

Office of General Counsel

1701 Prudential Drive, Room 651E

Ja ck sonville, Florida 32207

For Respondent: Stephanie M. Schaap

Duval Teachers United

1601 Atlantic Boulevard

Ja ck sonville, Fl orida 32207

STATEMENT OF THE CASE

W hether just cause exists to impose discipline on

R espondent's employment ; and, if so, what is the appropriate

discipline.

PRELIMINARY STATEMENT

By letter dated April 20, 2018, Sonita Young, assistant

s uperintendent of Human Resource Services, Duval County School

Board, issued a Step III Notice (Step III Notice) to Respondent,

Ms. Julianna Woessner (Respondent ), notifying Respondent of the

s uperintendentÓs Recommendation to suspend Respondent from her

teaching position without pay for 10 working days, pending

School Board approval. At its regularly scheduled mee ting on

May 1, 2018, Petitioner, D uval County School Board (School Board

or Petitioner ) , voted to suspend Respondent's employment for a

period of 10 days. Respondent timely requested a formal

administrative hearing regarding the School Board's action. On

May 15, 2018, this matter was referred to the Division of

Administrative Hearings ( DOAH ) for the assignment of an

administrative law judge.

At the administrative hearing held June 28, 2018, the

School Board presented the testimony of five witnesses:

Caroline Wells, the p rincipal o f San Mateo Elementary School

( San Mateo); Shaakera Thomas, the assistant p rincipal of San

Mateo; Melanie Poag, a reading coach at San Mateo; James

Gregory, i nvestigator for the Office of Professional Standards

with Duval Cou nt y Public Schools (the District); an d Sonita

Young, the DistrictÓs assistant s uperintendent for Human

Resource Services. Petitioner offered Exhibits P - 1 through P - 3,

which were admitted into evidence. Respondent testified on her

own behalf and offered E xhibits R - 1, R - 3, R - 7 , and R - 8, which

were admitted into evidence.

The proceedings were recorded and a transcript was ordered.

The parties were given 30 days from the filing of the Transcript

within which to file their proposed recommended orders. The

parties received transcript copies prior to the actual filing of

the Transcript on August 20, 2018. Thereafter, the part ies Ó

jointly stipulated that the ir Proposed Recommended Order s would

be filed by August 22 , 2018. The parties timely filed their

respective Proposed Recommended Orders, both of which have been

considered in the pre paration of this Recommended Order.

FINDINGS OF FACT

1. T he School Board i s charged with the duty to operate,

control and supervise free public schools within the School

District of Duval County, Florida, pursuant to article IX,

section 4(b) of the Florida Constitution , and section 1012.22,

Florida Statute s (2018). 1/

2. At all material times, Respondent has been employed as

a classroom teacher with the School Board under a professional

services contract.

3. During the 2017 - 2018 school year, Respondent was

assigned to teach first grade at San Mateo in Ja ck sonville,

Florida.

4. The Step III Notice issued by the School Board to

Respondent on April 20, 2018, constitutes the administrative

charging document in this proceeding.

5. The incident giving rise to this proceeding occurred on

Wednesday, February 14, 2018.

6. On February 14, 2018, students were sitting on the

carpet in Respondent's classroom ready fo r a slide show lesson

that Respondent intended to teach. C.K. , a 7 - year - old student

in Respondent's classroom at the time , started off in his chair,

but then got up and started crawling under tables in an attempt

to collect beads that had been left on the floor during a

previous arts and craft activity .

7. In response, Respondent gave C.K. a choice to either

sit in his seat or sit at the ba ck table . C.K. did neither , but

rather continued to crawl around on the floor.

8. C.K. then made his way to the ba ck table and began making

paper airplanes and throwing them . Respondent asked C.K. to stop

that behavior and told him that if he continued he would have t o

leave the room and she would have to call his mother. At that

point, C.K. broke down and became very upset , which was not his

normal behavior.

9. Respondent tried to talk to C.K. and calm him down. She

also called guidance on the intercom for assistance with C.K. ,

but there was no answer. While Respondent was attempting to

contact guidance, C.K. began running aroun d the room and yelling.

10. Around this time , Annette Smith, the paraprofessional

assigned to Respondent's classroom, entered the room and t ried to

talk to C.K.

11. Next, both Respondent and Ms. Smith tried to persuade

C.K. to go outside the classroom, but he began to yell, scream ,

and ki ck . He grabbed a desk and would not let go .

12. As C.K. was holding onto the desk, Respondent called

t he front office for assistance. C.K. 's grip on the desk caused

the desk to begin to tip over . Ms. Smith reacted by hold ing the

desk to prevent it from falling.

13. Both Respondent and Ms. Smith were able to get C.K. to

release the desk ; he was ki ck ing and took hold of another desk

that had a student sitting in it. As t hat desk tipped ,

Respondent and Ms. Smith held onto it to prevent it from

falling.

14. Ms. Smith was able to get C.K. to release the desk .

Respondent opened the classroom door , and Ms. Smith nudged C.K.

out of the classroom and into the hallway .

15. Once in the hall, Respondent tried to calm C.K. down

in private , one - on - one.

16. Shortly there after , t he school nurse, Mindie Rose ,

came out of another classroom and offer ed to take C.K. up to the

office. Nurse Rose never observed Respondent yelling at C.K.

and, in her testimony, described the scene as one in which

Respondent was trying to coax C.K. ba ck in to the room.

17. While Nurse Rose was standing there, Assistant

Principal Poag walked up. Ms. Poag's testimony regarding the

scene contrasts with Nurse Rose's recollections. According to

Ms. Poag , she heard Respondent yelling at C.K. Ms. Poag

testified that she saw red marks on C.K. Ós wrists and forearms

and scratch marks on his hands.

18. Later, w hen C.K. was brought to the office, Principal

Wells noticed red marks on C.K. Ós upp er arms and his upper

forearms. Nurse Rose saw C.K. rubbing his wrist s and forearm s

and noticed red mar ks in the area he was rubbing. Nurse Rose

was unable to determine whether the red marks came from C.K. 's

rubbing or from something that happened in the classroom. Nurse

Rose described the marks as Ð nothing deep , Ñ Ð kind of pink , Ñ and

Ð on the surface . Ñ On her own, without direction from anyone

else, Nurse Rose got some ice for C.K. 's arms .

19. At the final hearing, C.K. provided persuasive

testimony by telephone regarding the incident. C.K. testified

that he was being bad on February 14, 2018. He admitted

grabbing tables, and that Ms. Smith pulled his hands off , but

th at he then put his hands ba ck onto a desk. He also confirmed

that he was yelling that day in the classroom , but only Ð half

loud. Ñ According to C.K. , during the incident, Respondent was

not holding his feet or yelling at him, she gave him a hug, and

was talking to him about being calm.

20. C.K. Ós m other t estified that Respondent had also

taught C.K. the previous 2016 - 2017 school year, and that when

C.K. was retained , she requested that C.K. be assigned to

Respondent Ó s class for the 2017 - 2018 school year. C.K. 's mother

testified that she had seen improvement in C.K. 's grades and

a ttitude when being taught by Respondent. According to C.K. 's

mother, C.K. never got in to trouble at school until December

2017, around the same time that he lost his aunt and there was a

custody battle going on with his mothe r and step - father.

21. When C.K. started acting up in school, Respondent kept

C.K. 's mother informed. In the two weeks prior to the incident,

Respondent wrote two referrals on C.K. On February 1, 2018 , she

gave C.K. a written referral because C.K. was insisting on

having his toy car, hitting the table , and yelling at the

teacher. Respondent wrote the second referral on February 7,

2018, because C.K. was hitting classmates and throwing books and

pencils across the room. For the behaviors leading to the

second referral, a guidance counselor took C.K. out of the room .

W hen he returned to the room, C.K. started yelling at others,

ignored redirection , and told the teacher , Ð N o, I wonÓt do it. Ñ

22. When C.K. 's mother found out that , during the

February 14, 2018, School Board meeting, the School Board

intended on disciplining Respondent for the incident , she wrote

a statement on Respondent's behalf , pleading against the

imposition of discipline .

23. Assistant Principal Thomas testified that student

behaviors , such as yanking on a desk and almost pulling it over

and ki ck ing and hitting a teacher , would be considered

aggressive behavior. Principal Wells testified that it is

appropriate to remove a child from the classroom when they are

hurting themselves or others , if there is a danger , or i f they

are disrupting teaching and learning . Their testimonies are

credited.

24. In addition to her teaching job, Respondent has a

second job at Publix Supermarkets . One of Respondent's co -

workers at Publix, Megan Foster, told Respondent that she was

taking an on - line class to become a teacher and the class

required her to observe a school lesson. Ms. F oster had

volunteered at San Ma teo bef ore, and Respondent believed that

Principal Wells was aware of that. Therefore, Respondent

invited Ms. Foster to observe , not te ach o r intern, in

Respondent's first - g rade class. Volunteers are allowed in

classrooms at San Mateo . V olunteers are not necessarily

interns. Ms. Foster was in Respondent's classroom on

February 14, 2018, as a volunteer and observer, not as an

intern.

25. That same day, shortly after the incident with C.K. ,

Principal Wells observe d Ms. Foster for a few seconds .

According to Principal Wells, Ms. Foster was speaking to

Respondent's classroom children and standing at the projector .

According to Principal Wells, Ms. Foster was Ð an unknown

person. Ñ

26. As explained by Sonita Young, a one time visitor can

come to San Mateo without any prior approval as long as they are

un der supervision. At the time that Ms. Foster was observed in

Respondent's classroom, Ms. Smith, the classroom

paraprofessional, was in the classroom , and Respondent was just

outside in the hall. 2/

CONCLUSIONS OF LAW

27. The Division has jurisdiction over the parties and

subject matter of this proceeding . §§ 120.569 and 120.57(1) ,

Fla. Stat .

28. This is a penal disciplinary proceeding brought by the

School Board pursuant to s ection 1012.33 . As such, the School

Board bears the burden of proving each element of each charged

offense by a preponderance of the evidence. See Dileo v. Sch.

Bd. of Lake Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). A

preponderance of the evidence is evidence that more likely than

not tends to prove the proposition set forth by a proponent.

Gross v. Lyons , 763 So. 2d 276, 289 (Fla. 2000).

29. Responden tÓs employment is governed by the contract

negotiated by Duval Teachers United and the School Board . The

collective bargaining agreement requires a showing of Ð just

cause Ñ to support the imposition of discipline against a

teacher . As defined in s ection 1012.33 :

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,

incompetency, gross insubordination, willful

neglect of duty, or being convicted and

found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

30. In her testimony, A ssistant S uperintendent Young

identified misconduct in office or, Ð perhaps, Ñ willful neglect

of duty, as the just cause factors implicated in this case.

31. Florida Administrative Code Rule 6A - 5.056(2) defines

Ð misconduct in office Ñ as one or more of the following:

A violation of the Code of Ethics of the

Education Profession in Florida as adopted

in Rule 6A - 10.080, F.A.C.;

A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6A -

10.081, F.A.C.;

A violation of the adopted school board

rules;

Behavior that disrupts the studentÓs

learning environment; or

Behavior that reduces the teacherÓs ability

or his or her colleaguesÓ ability to

effectively perform duties.

32. Ð Willful neglect of duty Ñ means intentional or

re ck less failure to carry out required duties. Fla. Admin.

Code R. 6A - 5.056(5).

33. T he Step III progressive d iscipline (Step III Notice

or Complaint) f iled by the School Board was filed, despite the

fact that a no prior disciplinary proceedings had ever been

filed against Respondent. Under the fa cts and circumstances,

the Step III Notice should not have been filed. The Step III

Notice alleges that Respondent 's behavior violated the following

Pr inciples of Professional Conduct for the Education Profession

in Florida found in Florida Administrative Code Rule 6A - 10 .081 :

(1)(b) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefo re

strive for professional growth and will seek

to exercise the best professional judgment

and integrity .

(1)(c) Aware of the importance of

maintain ing the respect and confidence of

oneÓs 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.

(2)(a) Obligation to the student requires

that the individual :

1. S hall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

34. The Step III Notice alleges that Respondent Ð used poor

judgment on February 14, 2018, when [she] used an unauthorized

method to physically pull a student in an effort to remove him

from the classroom. As a result, the child rece ived injury to

his arms. Ñ

35. The Step III Notice also alleges that Respondent

violated School B oard policy Ð by utilizing an unapproved person

as an intern in [her] classroom after being told [ her ] request

was denied. Ñ

36. The evidence presented at the final hearing was

insufficient to support the allegations against Respondent.

37. With regard to C.K. 's removal from the classroom, both

the p rincipal and a ssistant p rincipal described C.K. 's behaviors

exhibited on February 14, 2018, to be behaviors requiring his

removal from the classroom. Further, t he evidence does not

support a find ing that Respondent used poor judgment or used an

unauthorized method to physically pull C.K. from the classroom .

C.K. provided credible testimony that Respondent was not holding

his feet or yelling at him that day, and the evidence is

insufficient to show that the marks on C.K. Ós arms were caused by

RespondentÓs actions.

38. Rather than supporting the allegation, the evidence

indicates that Respondent was gentle with C.K. that day, and gave

him a hug to calm him down. Respondent , the only other person who

testified as to her interactions with C.K. in the classroom that

day, provided credible testimony that was consistent with C.K. 's

recollection .

39. Regarding the allegation that Respondent allowed an

unauthorized intern in her office, the evidence did not show

that Ms. Foster was an intern. Rather, the sole evidence

presented regarding Ms. Foster's status in the classroom that

day was from Respondent, who explained that Ms. Foster was there

to observe a lesson. Consistent with Respondent's testimony, it

is found that Ms. Foster's presence in the classroom that day

was as a volunteer who was there to observe Respondent 's

teaching.

40. The evidence presented also failed to show that

Respondent violated the principles of professional conduct

listed in the Step III Notice. The evidence was insufficient to

show that the respect and confidence of Respondent Ós colleagues,

students, parents , or other members of the community was damaged

by Respondent's actions . The evidence did not demonstrate that

Respondent failed to make reasonable effort to protect students

from conditions harmful to them. In fact, RespondentÓs actions

regarding C.K. on February 14, 2018 , were protective .

41. Further, the evidence failed to show that Respondent

violated any School Board rules.

42. In addition, t he evidence did not show that Respondent

somehow disrupted the learning environment and did not

demonstrate that Respondent's actions reduced her ability or a

colleagueÓs ability to effectively perform their duties.

43. There was also a la ck of evidence that Respondent's

effectiveness in the school system was impaired because of her

conduct , and t here was no evidence that any of Respondent's

students had academic issues o r had to be treated for any

problem because of Respondent's actions . And, the evidence did

not demonstrate that Ms. FosterÓs presence in the classroom that

day impaired RespondentÓs effectiveness.

44. In sum, the School Board failed to prove the

allegations under the facts or the law, and it is concluded that

the Step III Notice and any discipline imposed against

Respondent based thereon should be dismissed.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by

Petitioner, Duval County School Board:

1. Dismissing the allegations against Respondent set forth

in the Step III Notice and rescinding any discipline imposed

thereby ; and

2. Reimbursing Respondent for any pay or benefits that she

did not receive as a result of the School BoardÓs actions in

this case , plus interest from the date that any such pay or

benefit was withheld , as appropriate under applicable law.

DONE AND E NTERED this 27th day of September , 201 8 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 Administrative Hearings

t his 27th day of September, 2018 .

ENDNOTES

1/ All references to Florida Statutes are to the current version

unless otherwise indicated.

2/ An excerpt from the investigators report was read into the

record regarding efforts by Mr. Gregory, the District

investigator , to determine whether Ms. Foster was an intern and

whether she was an approved volunteer. As the information in

that excerpt is hearsay and is not corroborative of any

competent, substantial evidence, it has not been utilized as the

basis of a finding of fact in this proceeding. See

§ 120. 57(1)(c) , Fla. Stat. ( Ð Hearsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it

shall not be sufficient in itself to support a finding unless it

would be admissible over objection in civil actions. Ñ ).

COPIES FURNISHED :

Tracey Kort Parde , Esquire

City of Jacksonville

Office of General Counsel

1701 Prudential Drive, Room 651E

Ja ck sonville, Florida 3 2207

(eServed)

Stephanie M arisa Schaap , Esquire

Duval Teachers United

1601 Atlantic Boulevard

Ja ck sonville, Florida 32207

(eServed)

Dr. Diana Greene, Superintendent

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, 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)

Stanley M. Weston, Esquire

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207

(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.