19-002299PL Richard Corcoran, As Commissioner Of Education vs. Olive Anderson Status: Closed Recommended Order on Tuesday, December 10, 2019.

Summary: Petitioner failed to prove by clear and convincing evidence that Respondent failed to make reasonable effort to protect students or intentionally exposed a student to unnecessary embarrassment or disparagement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R ICHARD CORCORAN, AS

COMMISSIONER OF EDUCATION ,

Petitioner,

Case No. 19 - 2299PL

vs.

OLIVE ANDERSON ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 4 , 2019 , Robert E. Meale , Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing by videoconference in Miami and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Brande n Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Cle arwater, Florida 33761

STATEMENT OF THE ISSUE S

The issue s are whether Respondent verbally disparaged

students or grabbed their clothing and, in one case, stepped on

a student's foot, so as to fail to protect students from

conditions harmful to learning, in violation of Florida

Administrative Code rule 6A - 10.081(2)(a)1., or to intentionally

expose students to unnecessary embarrassment or disparagement,

in violation of rule 6A - 10.081(2)(a)5 ., and thus violate section

1012.795(1)(j), Florida Statutes; if so , an additional issue is

what penalty should be imposed, pursuant to section 1012.795(1).

PRELIMINARY STATEMENT

By Administrative Complaint signed March 16, 2018,

Petitioner alleged that Respondent disparaged her students by

calling them "pig," "dumbass," "stupid," "ugly" and "fat,"

placing a mirror in front of one student and saying, "look at

your ugly face," gr abbing students by their shirt collars, and

grabbing one student by his shirt collar and stepping on his

foot. The Administrative Compl aint alleges that Respondent

failed to make reasonable effort to protect students from

conditions harmful to learning and/or to the student's mental

health and/or physical health or safety, in violation of

rule 6A - 10.081(2)(a)1., and intentionally exposed a student to

unnecessary embarrassment or disparagement, in violation of rule

6A - 10.081(2)(a)5. The Administrative Complaint alleges that the

violations of these rules, as part of the Principles of

Professional Conduct for the Education Profession, thus

c onstitute violation s of section 1012.795(1)(j).

Respondent requested a formal hearing by filing an Election

of Rights on May 13, 2018.

On May 1, 2019, the Education Practices Commission

transmitted the file to DOAH. The hearing was set for June 26,

2019, but was continued to October 4 at the request of both

parties.

On September 10, 2019, Petitioner filed a Motion to Amend

Administrative Complaint. Without objection, t he administrative

law judge granted the motion by Order issued on October 3, 2019.

The amended allegations remove redactions from the

Administrative Complaint and add some detail to the original

allegations, including the initials of students and incident

dates. In particular, the alleged collar - grab bing and

foot - stomping occurred on April 6, 2017, and the other alleged

matters occurred on October 11, 2016.

At the hearing, Petitioner called three witne sses and

offered into evidence 15 exhibits: Petitioner Exhibits 1

through 8, and 10 through 16 . Res pondent called one witness and

offered in to evidence nine exhibits : Respondent Exhibits 1, 3

through 8, 10, and 11 . All exhibits were admitted for all

purposes and in their entirety except Petitioner Exhibits 3

(only last three paragraphs on page 13 admi tted ) , 5, 6

(admitted, but not for truth), 11, and 12 (admitted, but not for

truth).

The court reporter filed the transcript on October 31 ,

2019. The parties timely filed proposed recommended orders by

December 6 , 2019.

FINDINGS OF FACT

1. At all material times, Respondent has held educator

certificate 989254 . For over 13 years, she has been employed as

a teacher by the Miami - Dade County School District.

2. During the 2016 - 17 school year, Respondent was teaching

fifth grade at a Miami - Dade County elementary school .

Approximately 28 students were assigned to her class.

3. On October 11, 2016, Respondent walked her students

from the basketball court to her classroom in preparation for

the start of instruction at 8:35 a.m. One or more of a small

group of students sitting with S.L. , also a student, complained

to Respondent that S. L. was bothering other students.

Directing herself to the class in general , Respondent told the

students to stop disrupting and settle down for class. She

warned the class that, if she received one more complaint, the

misbehaving student would have to change seats.

4. A fter receiving this warning, a nother student

complained about S.L. , so Respondent directed him to take a seat

at an empty table . S.L. initially re fused to move, but

eventually did so. However, he continued to disrupt other

students by calling them names, exhibiting aggressive bod y

language, and even getting out of his seat, as though to charge

a student.

5. Respondent directed S.L. to stop misbeha ving. He

retorted, "you're not smart, and the kids are dumb." Trying to

restore order, Respondent approached S.L. 's table with a mirror

used for science class. Placing it with in his reach and

extending his comment that his classmates were "not smart,"

R espondent said words to the effect, "if you could see your

behavior, you'd know it's not smart." By using "not smart,"

rather than a negative term, such as "stupid," to describe

misbehavior, Respondent attempted to convey a positive message

while trying t o reshape S.L. 's behavior.

6. Without permission, S.L. g o t up from his desk; walked

to the door; announced that he was going to the principal's

office to complain that Respondent had disparaged him, adding

that the principal had told him to come anytime, so she could

fire Respondent; defiantly stuck out his butt ocks toward the

class; and left the classroom. By the time that Respondent was

able to call the office to advise that S.L. was headed their

way, the principal's secretary advised that he w as already

there.

7 . Having lodged his complaint with the principal, S.L.

returned to class, resumed his seat , and , using a sharp object,

carved onto the desktop, "Stupid Anderson popo . " "Popo" is

slang for "police," although Respondent thought that it m eant

something about shooting.

8 . Respondent never abused the children with demeaning

terms, such as "pig," "dumbass," "fat," or "ugly," although S.L.

used some of these terms when verbally assaulting his

classmates.

9. The facts set forth in the precedi ng six paragraphs

track Respondent's testimony, which has been credited. In

opposition to this version of events, Petitioner called a single

eye witness, T.F. , who was a student in the classroom during the

incident in question. By the time of the hearing, T.F. was

attending a Miami - Dade middle school, and S.L. 's school

assignment was not disclosed in the record .

10. T.F. gave two statements. T he first statement, which

wa s typewritten by a Department of Education investigator, was

given on October 28, 2016. The second statement, which is in

T.F. 's handwriting, was given on October 14 , 2016, and the

purpose for which this statement was made is undisclosed in the

record.

11. The typewritten statement consists of questions and

answers. In th is statement, with the questions and one

irrelevant answer omitted, T.F. asserts:

[Respondent] is always calling [ S.L. ] names.

She calls him fatty and ugly. She even put

a mirror in front of his face and said,

"Look at your ugly face." She did this in

f ront of all of us and I felt really bad for

him. She also calls us names. She calls us

dumb, stupid and ugly. She even called me

dumb and stupid. I went to the bathroom to

cry. She made me feel bad. She also calls

the boys pigs.

* * *

. . . she curses at us when she is mad and

says we are doing crap , screams and yells a

lot, and she told [ S.L. and another student

identified only as H.] to shut up their fat

lips . She also hit [ J.F. ] and [ M.B. ] all

the time. She grabbed [ J.F. ] hard by the

arm and squeezed his arm and she also hit

[ M.B. ] hard on the head with a closed fist.

* * *

When she is really mad at us she screams,

yells, calls us names, and hits the

students. She hits the boys on the head and

the arm.

* * *

. . . I am afraid of her, and she makes me

feel bad when she calls me stupid and dumb.

I cry all the time. We are all happy in the

class when she does not come to school.

[ S.L. ] was the one she mistr eated the most.

When [ S.L. ] was in a fight and bleeding, she

was laughing because he was hurt.

12. The handwritten statement states in its entirety :

The Class/P.E. Court

in the class [ S.L. ] came out of nowhere and

start crusing [cursing] my mom my family and

puting his body in my face and saying kiss

his body and lick his private part . Saying

nasty stuff in creol calling me pig stink

bug [doudon?] head hiting me. In P.e. he

got a stick and treating [threatening] that

he is going to cut my neck of [off] and pock 7

[poke] my eyes. whene I don't give him

something he get's mad and say lick his

boody [body? booty?] and he Hit me with a

basketball. when I wrote the bully fomr

[form] he got mad and took the form and rip

it and he spit in my face whenever I talk to

[S., another student] or other people some

time he makes me cry.

13. T.F. 's direct testimony consisted entirely of her

agreeing with everything in the typewritten statement, although

it was unclear, during her testimony, if she independently

recalled the comments and actions described in the statement.

Also, m ost of the questions posed to T.F. on direct were

leading.

14. On cross examination, T.F. identified her s ignature on

the handwritten statement and recalled some, but not all, of its

contents. Specifically, she admitted that S.L. had bullied her

and made her cry . Initially, T.F. denied that S.L. had spit in

her face, but then recalled that he had done so by accident.

She testified that she could not recall that S.L. had threatened

to cut her neck with a stick , even though such an action would

typically be memorable to the victim . The reference in the

handwritten statement to a bully form is a form that T.F. and a

few other students submitted, at the urging of Respondent, a few

days after the October 11 incident, but the record does not

disclose what action, if any, the school or district

administrators took in response to these complaints about S.L. 's

bullyi ng.

15. In testifying, T.F. withdrew her typewritten statement

about Respondent's calling her dumb and stupid and instead

stated that she liked Respondent as a teacher. Also, T.F.

testified that S.L. had called the entire class dumb , as

Respondent testif ied .

16. On redirect, T.F. admitted, evidently as to the

handwritten statement, "most of this stuff I don't remember."

As noted above, the hearing took place three years after the

earlier of the two alleged incidents, and it is obvious that the

2016 - 17 school year had presented some challenges for T.F.

17. T.F. impressed the administrative law judge as a child

who was trying to tell the truth , but was under considerable

pressure in October 2016 and continuing pressure, even through

the time of the hearing . When T.F. testified that she had

cried , not from Respondent's actions, but from the bullying of

S.L. , her father interjected by asking his daughter why she had

not told him about this , and she replied that "you wouldn't

care . " T .F. 's father was not a witness, and his statement is

not noted to support a finding that T.F. did not tell him about

the bullying; however, his interjection and T.F. 's response

depict ed some of the stress to which T.F. has been subjected

over the matters d escribed above.

18. In general , the typewritten statement lacks the

spontaneity and inattention to grammar and diction that

characterize the handwritten statement. It is questionable

whether one word in the typewritten statement -- "mistreated" --

would be a word chosen by T.F. It is not so much that the word

requires an advanced vocabulary, but the word requires a level

of abstraction that is not evidenced in the handwritten

statement , which is graphically episodic . It is impossible to

find by clear and co nvincing evidence that the typewritten

statement records the words of T.F. , free of substantial editing

by the investigator.

19. Additionally, the handwritten statement effectively

impeaches the typewritten statement. S.L. bullied T.F. to the

point of making her cry at school. T he handwritten statement

suggests the possibility that S.L. forcefully tr ied to

intimidate T.F. in her effort to report his bullying.

Significantly, S.L. still had daily access to T.F. when she gave

the typewri tten statement .

20. Lastly, T.F. 's testimony was unpersuasive. She did

not appear to recall independently what she testified to on

direct. It did not appear that she was even willing to read

aloud her typewritten statement, as she was willing only to

agree to it in response to a series of leading questions.

2 1 . For reasons undisclosed in the record, Respondent, who

was represented by a union representative, agreed to a

suspension of 25 wo rk days without pay for the October 11 events .

Respondent did no t try to explain her choice not to contest the

charges, nor is it necessary to infer one , because any weight

that could be assigned to such a choice, on these facts, does

not establish or help to establish clear and convincing evidence

of wrongdoing. This suspension seems to have followed an

earlier job action removing her from student contact for 90

days, based on a verified finding of mental injury to S.L. by a

protective investigator employed by the Department of Children

and Families (DCF) -- an administ rative action that is entitled to

no weight for the reasons set forth in the Conclusions of Law.

22 . Petitioner has failed to prove by clear and convincing

evidence any of the allegations arising out of the October 11,

2016, incident.

23 . Respondent testified that she did not grab students by

their collars or step on their feet. The only evidence to the

contrary is the discredited evidence provided by T.F. As was

the case with the October 11 incident, Petitioner did not call

as witnesses the alleged victims in this April 6, 2017,

incident. The Miami - Dade County School District issued a

reprimand for th e alleged April 6 incident . Nothing in the

record suggests that Respondent had a right to contest this

charge, and, g iven the mildness of the punishment, it is

impossible to infer that she did ; but, again, a choice not to

contest this charge would not support an inference of guilt by

clear and convincing evidence .

24 . Petitioner has failed to prove by clear and convincing

evidence any of th e allegations involving grabbing students by

their collars or stepping on the foot of a student.

CONCLUSIONS OF LAW

2 5 . DOAH has jurisdiction over the subject matter.

§§ 120.569, 120.57(1), and 1012.796(6).

2 6 . Petitioner must prove the material allegations by

clear and convincing evidence. § 120.57(1)(j); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence is evidence that is " ' precise, explicit, lacking in

confusion, and of such weight that it produces a firm belief or

conviction, without hesitation, about the matter in issue. ' "

Robles - Martinez v. Diaz, Reus & Targ, LLP , 88 So. 3d 177, 179

n.3 (Fla. 3d DCA 2011) (citing Fla. Std. Jury Instr. (Civ . )

405.4) .

2 7 . As part of the Pr inciples for Professional Conduct for

the Education Profession, r ule 6A - 10.081 provides:

(2) Florida educators shall comply with the

following disciplinary principles.

Violation of any of these principles shall

subject the individual to revocation or

sus pension of the individual educator’s

certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires

that the individual:

1. Shall make reasonable effort to

protect the student from conditions harmful

to learning a nd/or to the student’s mental

and/or physical health and/or safety.

* * *

5. Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

2 8 . Section 1012.795(1)(j) authorizes the Education

Pra ctices Commission to impose a wide range of discipline for a

violation any of the Principles of Professional Conduct for the

Education of Profession.

29 . A DCF determination of verified abuse of a child is

made without regard to any standard of proof and without

affording the alleged perpetrator an opportunity to request a

hearing. § 415.104 , Florida Statutes (2017) ; former

§ 415.1075(1)(d) (1999) (right to a hearing and determination of

maltreatment must be by preponderance of the evidence); The

Florida Senate, Committee on Children, Families, and Elder

Affairs, "Review of State Child Abuse Registries," Issue Brief

2011 - 205 (October 2010),

https://www.flsenate.gov/UserContent/Session/2011/Publications/

InterimReports/pdf/2011 - 205cf.pdf. No weight thus at taches to

DCF's determination of mental injury.

30 . The determination of a violation of either of these

rules is a fact question to be made by the administrative law

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

1995). As noted in the F indings of Fact, Petitioner failed to prove a violation of either of these rules.

RECOMMENDATION

It is

RECOMMENDED THAT the Education Practices Commission enter a

final order finding Respondent not guilty of the allegations set

forth in the Administrative Complaint, as amended.

DONE AND ENTERED this 10 th day of December, 2019 , in

Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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

this 10 th day of December , 2019 .

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

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)

Randy Kosec, Jr., Chief

Office of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSe rved)

Brande n Vicari, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

( 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 F inal Order in this case.