19-001793TTS Desoto County School Board vs. Casey Looby Status: Closed Recommended Order on Tuesday, August 13, 2019.

Summary: Pet. proved, by clear & convincing evidence that Resp. violated DOE rules & school board policies constituting just cause to impose discipline. Recommend written reprimand pursuant to progressive discipline policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESOTO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 19 - 1793TTS

CASEY LOOBY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 19, 2019, Hetal Desai, an Adm inistrative Law Judge

of the Division of Administrative Hearings (DOAH) , conducted a

hearing in this case in Arcadia, Florida.

APPEARANCES

For Petitioner: Mark E. Levitt, Esquire

Allen Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1526

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner, DeSoto County

School Board (School Board), to suspend Respondent without pay,

and terminate her employment as an Exceptional Student Education

(ESE) teacher .

PRELIMINARY STATEMENT

By letter dated Mar ch 6, 2019, the School Board’s

s uperintendent, Adrian Cline (Superintendent Cline) , informed

Respondent he was suspending her without pay effective March 8,

2019, and recommending the School Board terminate her fr om

employment at its next meeting. The letter referenced “an

incident on February 11, 2019, involving you throwing two

handheld foam footballs at a student in your classroom with

cerebral palsy confined to a wheelchair or walker.” Respondent

timely reque sted an administrative hearing, and the matter was

referred by the School Board to DOAH on April 4, 2019.

After one continuance, the final hearing was held on

June 19, 2019. At the hearing, the Scho ol Board called four

witnesses: Whitney Walker and Matthew Blevins , paraprofessionals

who worked in Respondent’s classroom; Cynthia Langston , an

a ssistant p rincipal at the High School (Assistant Principal

Langston) ; and Superintendent Cline . School Board Exhibits P 1

through P7 were admitted in to evidence . Respondent presented her

own testimony and that of Jody Murray, another paraprofessional

who worked in Respondent’s classroom. Respondent ’ s Exhibits R1

through R4 were accepted in evidence. Of special note are

Exhibits P1 and R4, which are small foam f ootballs.

A Transcript of the hearing w as filed July 3, 2019 . The

parties timely submitted proposed recommended order s (PRO s ),

which h ave been considered.

This proceeding is governed by the law in effect at the time

of the commission of the acts alleged to warrant discipline. See

McCloskey v. Dep ’ t of Fin. Servs. , 115 So. 3 d 441 (Fla. 5th DCA

2013). Therefore, references to Florida S tatutes and Florida

Administrative Code rules are to the 2018 versions. References

to the School Board policies are to th ose in effect for the 2018 -

2019 school year.

FINDING S OF FACT

Parties and Relevant Policies

1 . The School Board is charged with the duty to operate,

control, and supervise public schools in DeSoto County. Art. IX,

§ 4(b) , Fla. Const. (2018). This inclu des the power to

discipline instructional staff, such as classroom teachers.

§§ 1012.22(1)(f) and 1012.33, Fla. Stat.

2 . Respondent is an ESE classroom teacher at DeSoto County

High School (High School). Although Respondent has been teaching

for 23 years, she has only been an ESE classroom teacher for the

School Board since 2016.

3 . Superintendent Cline is an elected official who has

authority for making School Board personnel decisions. His

duties include recommending to the School Board that a teacher be

terminated. § 1012.27(5) , Fla. Stat.

4 . David Bremer (Principal Bremer) was the p rincipal at the

High School at all times relevant to these proceedings, and

Cynthia Langston served as the Assistant Principal.

5 . The parties’ employment relat ionship is governed by

School Board policies, Florida laws, Department of Education

regulations, and t he Collective Bargaining Agreement (CBA)

entered into by the School Board and the Desoto County Educators

Association, a public u nion . The CBA relevant t o t his action was

effective July 1, 2018, through June 30, 2021.

6 . The School Board employed Respond ent on an annual

contract basis . “Annual contract” means an employment contract

for a period of no longer than one school year which the School

Board may choose to award or not award without cause.

§ 1012.335(1)(a), Fla. Stat.

7 . The testimony at the hearing and language in the CBA

establish that the annual contract of a teacher , who has received

an indication he or she “Needs Improvement” or is p laced on an

improvement plan , is not eligible for automatic renew al . In

these situations , the s uperintendent has discretion regarding

whether to renew that teacher’s annual contract . See CBA,

Art. 8, § 16.

8 . Article 22, section 8 of the CBA provides for

p rogressive discipline for teachers in the following four steps:

(1) verbal reprimand (with written notation placed in the site

file) ; (2) written reprimand (fil ed in personnel and site files);

(3) suspension with or without pay ; and (4) dismissal. Th e CBA

makes clear that progressive discipline must be followed, “except

in cases that constitute a real immediate danger to the district

or [ involve a] flagrant violation.”

Febr uary 11, 2019 (the February 11 I ncident)

9 . This proceeding arises from an inc ident that occurred on

February 11, 2019, after lunch in Respondent’s ESE classroom.

The School Board alleges Respondent intentionally threw a foam or

Ne rf - type football at a student in a wheelchair when he failed to

follow her instructions, and the footb all hit the student.

Respondent asserts she playfully threw stress ball - type footballs

up in the air and one accidently bounced and hit A.R.’s chair.

10 . Respondent’s classroom at the High School consisted of

ten to 12 ESE students during the 2018 - 2019 s chool year. These

students had special needs and some were nonverbal. On the day

of the incident , there were nine or ten students in Respondent’s

classroom, including A.R., a high school senior with cerebral

palsy.

11 . Respondent kept small foam or N erf - type footballs in

her desk drawer. The testimony at the hearing established

Respondent had used them in the classroom to get the students’

attention in a playful fashion.

12 . In addition to Respondent, four paraprofessionals

assisted the students in the classroom. Of the four, only three

were in the classroom during the February 11 incident:

Ms. Walker, Mr. Blevins , and Ms. Murray.

13 . Respondent was responsible for A.R. while in her

classroom. A.R. uses a wheelchair or a walker to get around, but

h as a special chair - desk in Respondent’s classroom. A.R. had

difficulty in the classroom setting. Specifically, it was noted

at the hearing that he has trouble processing what is happening

around him, and that he needs help simplifying tasks that require

more than one step.

14 . Although A.R. is verbal, he is slow to respond. A.R.

was described as a “repeater” because he repeats things that

others say, smiles if others are smiling, or laugh s if others are

laughing. In conversation, A.R. would typically smile and nod,

or say “yes.”

15 . Ms. Walker ’s and Mr. Blevins’s recollections of the

February 11 incident were essentially the same. They testified

that on the afternoon of February 11, 2019, the students returned

to Respondent’s classroom from art class . They were excited and

did not settle down for their lesson. As a result, Respondent

became frustrated and yelled at the students to get their pencils

so they could start their work. Respondent asked A.R., who was

in his special chair - desk , to obtain a pencil. A.R. did not

respond immediately and Respondent told him to get his pencil or

she would throw a football.

16 . Ms. Walker ’s and Mr. Blevins’s testimony established

that, a t this point , Respondent threw ei ther one or two blue ,

soft, N erf - type foo tballs approximately six inches long at A.R.,

who was looking in another direction. One of these blue

footballs hit A.R. either in the side of his torso or back. A.R.

began flailing hi s arms while he was in his chair - desk, and the

entire room became sile nt.

17 . Ms. Murray was not facing A.R. during the incident, but

she heard Respondent yell at A.R. to pay attention. She did not

see Respondent throw the balls and was unsure if any of the balls

made contact with A.R. After the incident, however, she saw two

balls on the floor, picked them up, and returned them to

Respondent. Ms. Murray did not recall the color of the

footballs, and could only describe them as “squishy.”

18 . Respondent testified that A.R. was not paying

attention, and she admits she to ld him she was going to toss the

footballs if he did not get his pencil. She denies throwing a

blue football at A.R., but instead claims she threw two smaller

f oam brown footballs. She denied any of the balls hit him, but

rather, explained one of the bro wn foot balls bounced off the

floor and hit A.R.’s chair - desk ; the other fell on her desk.

19. The undersigned finds the testimony of Respondent less

credible than the paraprofessionals’ testimony. First, all of

the evidence established Respondent clearl y threw footballs after

A.R. did not respond to her instruction, and Respondent knew (or

should have known) that A.R. was incapable of catching the

football or responding positively.

20 . Second, Respondent’s version of what happened to the

balls after sh e threw them is inconsistent with the testimony of

Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s

testimony that one ball fell on her desk is also inconsistent

with Ms. Murray’s testimony that she picked up two balls off the

floor .

21 . F inally, Respondent’s version of events is not

believable in part, because neither the brown nor the blue

football entered into evidence had sufficient elasticity (or

bounciness) to have acted in the manner described by Respondent.

22 . Based on the credi ble evidence and testimony , the

undersigned finds Respondent intentionally threw the blue larger

football s at A.R. knowing he would not be able to catch them, one

ball hit A.R. in the side or back, and A.R. became startled from

being hit. There was no evi dence proving A.R. wa s physically ,

emotionally , or mentally harmed .

Report and Investigation of the February 11 Incident

23. Both Ms. Walker and Mr. Blevins were taken aback by

Respondent’s behavior. Ms. Walker was concerned that A.R. did

not realize wha t was happening , and that the rest of the students

were in shock. She did not think a teach er should throw anything

at any student.

24. Mr. Blevins similarly stated he was stunned and did not

believe Respondent’s conduct was appropriate, especially beca use

A.R. was in a wheelchair. At the hearing, Respondent also

admitted it would be inappropriate to throw anything at a student

even if it was just to get his or her attention.

25. Both Ms. Walker and Mr. Blevins attempted to report the

incident immediat ely to the High School administration.

Ms. Walker left the classroo m to report the incident to Principal

Bremer, who was unavailable. Ms. Walker then reported to

Assistant Principal Langston what she had seen happen to A.R. in

Respondent’s classroom. D uring this conversation, Ms. Walker was

visibly upset.

26 . After listening to Ms. Walker, Assistant Principal

Langston suggested she contact the Department of Children and

Families (DCF). Ms. Walker used the conference room phone and

immediately contacte d the abuse hotline at DCF. As a result, DCF

opened an abuse investigation into the incident.

27 . Meanwhile, Mr. Blevins had also left Respondent’s

classroom to report the incident to Assistant Principal Langston.

When he arrived , he saw that Ms. Walker was already there and

assumed she was reporting what had happened. Therefore, he did

not immediately report anything.

28 . Later that day, Assistant Principal Langston visited

Respondent’s classroom, but did not find anything unusual. She

did not speak to Respondent about the incident reported by

Ms. Walker.

29 . The next day, February 12, 2019, Assistant Principal

Langston obtained statements from the paraprofessionals ,

including Ms. Walker and Mr. Blevins in Respondent’s classroom

regarding the Fe bruary 11 incident. These statements were

forwarded to Superintendent Cline, who had been advised of the

incident and that DCF was conducting an investigation.

30 . It is Superintendent Cline’s practice to advise

administrators to place a teacher on susp ension with pay during

an investigation. If the teacher is cleared, the administrator

should move forward with reinstatement.

31 . In this case, Principal Bremer met with Respondent on

February 12, 2019, and informed her she would be placed on

suspension with pay while DCF conducted its investigation into

the incident.

32 . DCF closed its investigation on February 19, 2019. No

one who conducted the DCF investigation testified at the hearing ,

and the final DCF report was not offered into evidence. Rather ,

the School Board offered a DCF document titled “Investigative

Summary (Adult Institutional Investigation without Reporter

Information).” This document fall s within the business records

exception to the hearsay rule in section 90.803(6), Florida

Statutes , and was admitted into evidence.

33 . The undersigned finds , however, the Investigative

Summary unpersuasive and unreliable to support any findings . The

document itself is a synopsis of another report. Moreover, the

document is filled with abbreviations and specialized references,

but n o one with perso nal knowledge of the investigation explained

the meaning of the document at the final hearing. Finally, the

summary indicates DCF closed the investigation because no

physical or mental injury could be subs tantiated.

34 . On February 21, 2019, Principal Bremer notified

Superintendent Cline that DCF had cleared Respondent, but did not

provide him with a copy of the DCF report or summary.

Principal Bremer did not have to consult with Superintendent

Cline re garding what action to take regarding Respondent.

35 . Based on the DCF finding that the allegation of abuse

or maltreatment was “Not Substantiated,” Principal Bremer

reinstated Respondent to her position as an ESE teacher, but

still issued her a written reprimand.

36 . The reprimand titled “Improper Conduct Maltreatment to

a Student” stated in relevant part:

I am presenting you with this written

reprimand as discipline action for your

improper conduct of throwing foam balls at a

student.

On February 11 , 2019 it was reported you

threw a football at [A.R.], a vulnerable

adult suffering from physical limitations.

As a result of this action, Florida

Department of Children and Families (DCF)

were called to investigate and you were

suspended until the invest igation was

complete.

Although maltreatment of [sic] Physical or

Mental Injury was not substantiated, DCF

reported three adults in the room witnessed

you throwing at least two foam balls at

[A.R.] because he did not get a pencil on

time. Apparently [A.R. ] did not follow

through with the direction provided by you

and you became frustrated for that reason.

I am by this written reprimand, giving you an

opportunity to correct your improper conduct

and observe Building rules in the future. I

expect you will refrain hereafter from

maltreatment to a student and fully meet the

duties and responsibilities expected of you

in your job. Should you fail to do so, you

will subject yourself to further disciplinary

action, including a recommendation for

immediate termi nation and referral of the

Professional Practices Commission.

37 . On February 25, 2019, Respondent returned to her same

position as an ESE teacher, in her same classroom, with the same

students, including A.R.

Superintendent’s Investigation and Recommen dation to

Terminate

38 . Meanwhile, Superintendent Cline requested a copy of the

report of the investigation from DCF and contacted the DCF

investigator. Based on his review of what was provided to him

and his conversation with DCF, he concluded A.R. may still be at

risk. Superintendent Cline found Respondent’s actions worthy of

termination because “it is unacceptable to throw a football at a

student who has cerebral palsy, and thus, such conduct violates ”

state rules and School Board policy. School Boa rd PRO at 15,

¶ 72.

39 . There was no credible evidence at the hearing that A.R.

or any other student was at risk from Respondent. The School

Board failed to establish at the hearing what additional

information, if any, Superintendent Cline received t hat was

different from the information already available to him, or that

was different from the information provided to Principal Bremer.

There was no justification or plausible explanation as to why

Superintendent Cline felt the need to override Principa l Bremer’s

decision to issue a written reprimand for the violations.

40. On March 6, 2019, Superintendent Cline issued a letter

suspending Respondent without pay effective March 8, 2019, and

indicating his intent to recommend to the School Board that it

t erminate Respondent’s employment at its next regular board

meeting on March 26, 2019. Attached to the letter were copies o f

the Investigative Summary, Florida Administrative Code R ule 6A -

10.081 , and School Board Policy 3210.

41 . This letter was deliver ed by a School Board’s human

r esources employee to Respondent on March 8, 2019. Respondent

did not return to the classroom for the remainder of the school

year.

Respondent’s Disciplinary History

42 . Prior to the February 11 incident, Respondent had

recei ved an oral reprimand for attendance issues on December 21,

2018.

43 . On February 6, 2019, Assistant Principal Langston met

with Respondent to address deficiencies in Respondent’s

attendance, lesson plans, timeliness of entering grades , and

concerns wit h individual education plans for her ESE students.

At that meeting, Assistant Principal Langston explained

Respondent would be put on an improvement plan and that if

Respondent did not comply with the directives discussed at the

meeting, she would be subj ect to further discipline, including

termination. Although the plan was memorialized, Respondent was

not given the written plan until after she returned from the

suspension.

Ultimate Findings of Fact

44. Respondent intentionally thr e w two footballs in a n

overhand manner at A.R., a student who could not comprehend the

situation and could not catch the balls. She did so either in an

attempt to garner the student’s attention or out of frustration

because he was not following directions.

45 . Respondent d id not violate r ule 6A - 10.081(2)(a)1. ,

because there was no evidence the incident exposed A.R. to harm,

or that A.R.’s physical or mental health or safety was in danger.

Similarly, Respondent did not violate School Board Policy

3210(A)(1).

46. Respondent violated r ule 6A - 10.081(2)(a) 5 . , which

prohibits a teacher from “intentionally expos [ing] a student to

unnecessary embarrassment or disparagement.” The evidence

established Respondent’s action in throwing the ball was

intentional and was done to embarras s or belittle A.R. for not

following her directions. For the same reason, Respondent’s

conduct violated School Board Policy 3210(A)(5).

47 . Respondent violated r ule 6A - 10.081(2)(a)7. , which

states that a teacher “ [s]hall not harass or discriminate . . .

any student on the basis of . . . handicapping condition . . .

and shall make reasonable effort to assure that each student is

protected from harassment.” Again, the credible evidence

established the act of a teacher throwing any item at any

student , esp ecially one who requires a wheelchair, i s

inappropriate and would be considered harassment on the basis of

a student’s handicap .

48 . Similarly, Respondent violated r ule 6A - 10.081(2)(c)4. ,

which requires that a teacher “not engage in harassment or

discrim inatory conduct which unreasonably interferes . . . with

the orderly processes of education or which creates a hostile,

intimidating, abusive, offensive, or oppressive environment; and,

further, shall make reasonable effort to assure that each

individual i s protected from such harassment or discrimination.”

For the same reasons listed above, Respondent’s conduct also

amount s to a violation of School Board Policy 3210(A)(7).

49 . There was no evidence this conduct constituted a real

immediate danger to the district, nor does it rise to the level

of a flagrant violation. Therefore, the School Board must apply

the steps of progressive discipline set forth in a rticle 22,

section 8 of the CBA .

50 . Pursuant to the terms of the CBA, Respondent should

have receiv ed a written reprimand for the February 11 incident.

CONCLUSIONS OF LAW

51 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes .

52 . Respondent is a classroom teacher and her employment

with the School Board is governed by an instructional staff

her employment are also governed by the CBA.

53 . The School Board is authorized to suspend or dismis s

instructional personnel pursuant to sections 1012.22(1)(f),

1012.33(1)(f), and 1012.33(6)(a), Florida Statutes, but only for

just cause. These statutes and rules are penal and therefore

must be strictly construed, with ambiguities resolved in favor of

t he person charged with violating them. See McCloskey v. Dep ’ t

of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA 2013) ; Broward Cnty.

Sch. Bd. v. Tersigni , Case No. 13 - 2900 (Fla. DOAH Oct. 9, 2014).

54 . The School Board bears the burden of proving by a

prepond erance of the evidence that the alleged misconduct

occurred and just cause exists to terminate Respondent’s

employment. Cropsey v. School Bd. of Manatee C nty. , 19 So. 3d

351, 355 (Fla. 2 d DCA 2009).

55 . As an initial matter, the undersigned must determ ine

whether Respondent’s conduct constitutes “just cause” for

dismissal. Florida Administrative Code R ule 6A - 5.056 provides in

pertinent part:

“ Just cause” means cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued is

set forth in sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis

for each such charge is hereby defined:

* * *

(2) “Misconduct in Office” means one or more

of t he following:

* * *

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board

rules .

56 . At the hearing , Superintendent Cline indicated he

believed Respondent had violated r ule 6A - 10.081 (2)(a)1.,

(2)(a)5., and (2)(c)4. These rule provisions correspond to

School Board Policy 3210(A)(1), (5), and (7).

57. Rule 6A - 10.081(2)(a)1. requires that a teacher “make

reasonable ef fort to protect the student from conditions harmful

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

and/or safety.”

58. Rule 6A - 10.081(2)(a)5. requires that a teacher “not

intentionally expose a student to unnecessary embarrassment or

disparagement.”

59. Rule 6A - 10.081(2)(c)4. requires that a teacher “not

engage in harassment or discriminatory conduct which unreasonably

interferes . . . with the orderly processes of education or which

creates a hostile, intimidating, abusive, offensive , or

oppressive environment; and, further, shall make reasonable

effort to assure that each individual is protected from such

harassment or discrimination.” In the same vein,

r ule 6A - 10.081(2)(a)7. requires that a teacher “not harass . . .

any student on the basis of . . . handicapping condition . . .

and shall make reasonable effort to assure that each student is

protected from harassment.”

60 . As found above, there was no evidence A.R. was ever in

danger or harm and thus the School Board failed to sati sfy its

burden in establishing a violation of r ule 6A - 10.081(2)(a)1.

61 . The School Board did, however, establish that

Respondent’s conduct was intended to or had the effect of

harassing, embarrassing and intimidating A.R., who could not

respond because of his disability. As such, the School Board met

its burden in establishing the remaining state rule and School

Board policy violations.

62. Having proved Respondent guilty of some violations, the

School Board wishes to skip the four - step disciplinary process

and go straight to dismissal. It insists progressive discipline

was not necessary in this case.

63 . T he CBA requires progressive discipline except where

there is an immediate danger to the district or other flagrant

violation . Although “immedia te danger” and “flagrant violation”

are not defined in the CBA, whether conduct is severe enough to

skip progressive discipline is a question of ultimate fact for

the undersigned to determine based on the competent, substantial

record evidence. See Costin v. Fla. A & M Univ. Bd. of Trs. ,

972 So. 2d 1084 , 1086 - 1087 (Fla. 5th DCA 2008) (holding whether employee’s misconduct justified dismissal based on terms of the

best left to” the ALJ).

64 . Cases involving other CBAs with similar language have

referred to this type of exception to progressive discipline as

requiring “severe acts of misconduct,” Quiller v. Duval County

School Board , 171 So. 3d 745, 746 (Fla. 1st DCA 2015) , or

circumstances “which clearly constitute . . . purposeful

violations of reasonable School Board rules.” Palm Bch. Cty.

Sch. Bd. v. Harrell , Case No. 16 - 6862 (Fla. DOAH Apr. 11,

2017) (noting striking a child in anger constituted a sufficient

justification to deviate from progressive discipline); Sarasota

Cnty. Sch. Bd. v. Berry , Case No. 09 - 3557 ( Fla. DOAH Jan. 27,

2010; Dad e Cnty. Sch. Bd. Mar. 4, 2010)(finding te acher’s threat

of violence was a flagrant violation within the meaning of the

CBA justifying termination with out progressive discipline) ; Lee

Cnty. Sch. Bd. v. Bergstresser , Case No. 09 - 2414 (DOAH Sept. 25,

2009; Lee Cnty. Sch. Bd. Oct. 20, 2009)( finding just cause for

immediate termination , as opposed to progressive discipline,

based on teacher’s refusal to do a ssigned tasks, harassment of

co workers, and threats of violence ) ; compare Palm Bch. Cty. Sch.

Bd. v. Barber , Case No. 1 7 - 68 49TTS (Fla. DOAH November 13,

2018 ) (finding progressive discipline was not excused where

teacher violated policy by dragging student across the floor;

student was disrespected, but not in harm or danger).

65 . Here, t he evidence did not demonstrate conduct

sufficiently egregious to justify dismissal without resort to the

lesser prescribed discipline in the CBA . Although Respondent’s

actions were inappropriate, it is unreasonable to inf er that the

foam footballs, which had been used playfully in the classroom,

could have caused any physical harm. Moreover, there was no

evidence Respondent intended to harm A.R. , or that A.R. was

place d in any danger .

66 . Since Petitioner has been disciplined with a verbal

reprimand, the next level of discipline under the CBA is a

written reprimand. Therefore, Petitioner should have receive d a

written reprimand , instead of a suspension without pay fo r the

remainder of the 2018 - 2019 school year and termination .

67 . T he School Board established Superin tendent Cline may

have discretion to decline renew al of Respondent ’s annual

contract for the 2019 - 2020 school year based on her performance

deficiencies and placement on an improvement plan , but that issue

was not addressed by Respondent in her PRO, nor was it included

within this proceeding . T he refore, the undersigned does not make

a recommendation as to whether the School Board should renew

Respondent’s annual contract.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is RECOMMENDED that the DeSoto County School Board:

a) enter a final order finding Respondent violated Florida

Adm inistrative Code Rule 6A - 10.081 (2)(a)5., and (2)(c)4. ; and

corresponding School Board Policy 3210(A)(5) and (7);

b) rescind the notice of termination dated March 6, 2019,

and , instead , reinstate Principal Bremer’s written reprimand

dated February 25, 2019; and

c) to the extent there is a stat ute, rule, employment

contract, or Collective Bargaining Agreement provision that

authorize s back pay as a remedy for Respondent ’ s wrongful

s uspension without pay, Respondent should be awarded full back

pay and benefits from March 8, 2019 , to the end of th e term of

her annual contract for the 2018 - 2019 school year . See Sch. Bd.

of Seminole Cnty. v. Morgan , 582 So. 2d 787, 788 (Fla. 5th DCA

1991); Brooks v. Sch. Bd. of Brevard Cnty. , 419 So. 2d 659, 661

(Fla. 5th DCA 1982).

DONE AND ENTERED this 13th day of August , 2019 , in

Tallahassee, Leon County, Florida.

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of August , 2019 .

COPIES FURNISHED:

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A. Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1526

(eServed)

Adrian H. Cline, Superintendent

The School District of DeSoto County

530 LaS olona Avenue

Po st Office Drawer 2000

Arcadia, Florida 34265 - 2000

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Departm ent 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 Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.