19-003379TTS Broward County School Board vs. Ava E. Williams Status: Closed Recommended Order on Tuesday, January 14, 2020.

Summary: The district school board failed to prove its allegation that an elementary school teacher choked one of her students in class, and therefore it does not have just cause to dismiss the teacher from her position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 19 - 3379TTS

AVA E. WILLIAMS ,

Respondent .

/

RECOMMENDED ORDER

Th is case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ("DOAH"), for

final hearing on October 2 9 , 20 1 9 , in Fort Lauderdale , Florida.

APPEARANCES

For Petitioner: Ranjiv Sondhi, Esquire

Denise M. Heekin, Esquire

Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 2200

Miami, Florida 33131

For Respondent: Robert F. McKee, Esquire

Robert F. McKee, P.A.

Post Office Box 75638

Tampa, Florida 33675

STATEMENT OF THE ISSU E

T he issue is whether , as the district school board alleges,

a n elementary school teacher choked one of her students in

class ÏÏ an allegation which, if prov ed, would give the district

just cause to dismiss the teacher from her position.

PRELIMINARY STATEMENT

On May 22, 2019, Petitioner Broward County School Board

issued an Administrative Complaint against Respondent Ava E.

Williams containing the allegatio n that Ms. Williams had grabbed

one of her students by the neck and choked him . Petitioner

seeks to terminate Ms. Williams's employment as a teacher based

on this alleged conduct.

Ms. Williams timely requested a formal administrative

hearing to contest Pe titioner ' s intended action. On June 20,

2019, Petitioner referred the matter to DOAH for further

proceedings. Upon assignment, the undersigned set the final

hearing for August 13 and 14, 2019. Subsequent continuances

postponed the hearing for a couple o f months.

At the final hearing, which took place on October 29 , 201 9 ,

Petitioner called the following witnesses: P.P., Detective

Richard Orzech, Shereen Reynolds, and Shawony Russell. In

addition, Petitioner (i) offered the deposition of Shanette

Daniel, which was admitted in lieu of live testimony due to

witness unavailability ; and (ii) moved into evidence

Petitioner's Exhibits 1 (pp. 1336, 1343 - 47), 2, 3, 5 through 12,

16, and 25 through 35. Ms. Williams testif ied on her own behalf

and offered Respondent's Exhibits 1 through 4, which were

received in evidence.

T he final hearing transcript was filed on November 14 ,

2019 . Each party timely filed a p roposed r ecommended o rder

("PRO") on December 20, 2019, which w as the deadline . The

parties' PROs have been considered in the preparation of this

Recommended Order.

U nless otherwise indicated, citations to the official

statute law of the state of Florida refer to Florida Statutes

201 9 .

FINDINGS OF FACT

1. The Broward County School Board ( " School Board " or the

" district " ), Petitioner in th is case, is the constitutional

entity authorized to operate, control, and supervise the Broward

County Public School System.

2. At all times relevant to this matter , Respondent Ava E.

Williams ( " Williams " ) , who holds an active Florida Educator

Certificate, was employed as a third - grade teacher at Watkins

Elementary School. She had taught at that school for the

preceding 13 years and been an employee of the district si nce

1998.

3. During the 2018 - 2019 school year, one of the students

in Williams's class was a boy named P.P. After school on

Friday, September 14, 2018, P.P. told his mother that, earlier

during the day, Williams had choked him in class. P.P.'s mother

and sister accompanied P.P. to school later that day, or the

following Monday , to report this allegation to Assistant

Principal Shereen Reynolds.

4. P.P. claims that when he returned to class after the

meeting with Ms. Reynolds, Williams called P.P. a "lying, fat

pig" for turning her in. The undersigned rejects this

allegation, which is uncorroborated, as not credible. Sometime

later, on September 17, 2018, Ms. Reynolds told W illiams about

P.P.'s allegation that s he (Williams) had choked P.P. the F riday

before .

5. The next day, Tuesday, Williams encountered her

colleague, Shawony Russell, in the hallway. Williams ÏÏ who was

acquainted with, but not close to, Ms. Russell ÏÏ knew that

Ms. Russell had been P.P.'s teacher the previous school year,

when P.P. was in the second grade. There is no dispute that

Williams spoke briefly to Ms. Russell at this time. Ms. Russell

asserts , however, t hat Williams admitted to her that she had

choked P.P., whereas Williams adamantly denies having made such

a confessi on. For reasons that will be discussed, the

undersigned deems Williams's account of this conversation to be

the more credible and thus rejects Ms. Russell's testimony to

the contrary.

6. After conducting an investigation, the district

determined that Wil liams was guilty of having choked P.P. while

screaming at him, "Do you hear me?" ÏÏ or words to that effect.

On this basis, the district seeks to terminate Williams's

employment. Although the district advances several theories in

support of its intended de cision, Williams concedes that the

allegations against her, if proved, would afford the district

just cause for dismissal. Her defense is that the allegations

are untrue.

7. At hearing, only two witnesses to the alleged incident

testified, namely William s and P.P. Their respective accounts

differ in material respects. Williams was by far the more

credible witness, a nd her testimony is accepted over P.P.'s.

8. Although, as the fact - finder, the undersigned is not

obligated to explain why he has found one witness to be more

believable than another, in this instance a few comments are in

order, given that the School Board largely grounded its case on

P.P. 's testimony. To begin ÏÏ and this is undisputed ÏÏ P.P. is a

liar. That is a harsh word, "liar," one that the undersigned

does not use lightly, especially with reference to a child

witness. But here it is an accurate description. P.P. admitted

under oath that he tells lies qui te often, including to

teachers. He has lied to get other students in trouble , am ong

other things . This, alone, was enough to make the undersigned

hesitate to take P.P. 's word about a charge that, if true , would

cost a person her job ÏÏ and might even end that pers on's

professional career.

9. Beyond that , P.P.'s description of the incident make s

little s ense and is difficult to imagine. P.P. claims that on

the morning in question, Williams lined up the students in her

class to walk with them to the cafeteria for lunch, except for

P.P., who stayed behind because Williams , who though t P.P. had

thrown a chair, was walking quickly towards him, after telling

the other students to go. According to P.P., after everyone

else had left, Williams stood in front of him and touched his

throat with her open hand for one second, never squeezing,

pushing, or making any movement at all ÏÏ nor causing any pain ÏÏ

before withdrawing. The undersigned does not believe that this

is likely what happened.

10. Williams's account, in contrast, is easy both to

follow and to picture occurring. She recalls tell ing the

children to clean up for lunch that morning, which all of them

proceeded to do, except for P.P., who just sat at his desk and

refused to move. Another student said something to P.P. that

made P.P. mad, and he pushed a chair at the student. At thi s,

Williams walked over to P.P. and asked him to get in line for

lunch, but P.P. would not budge. Without touching P.P.,

Williams raised her voice and said to him loudly, "Do you hear

me now?" She instructed the other students to leave for lunch

and bega n walking towards the door herself. P.P. followed

Williams and then exited the classroom ahead of his teacher, who

had waited at the door for him. At this point, the incident was

over. The undersigned credits Williams's testimony and finds

that the inci dent likely took place as described in this

paragraph.

11. Apart from the eyewitness testimony, the only other

significant evidence that the district offered was Williams's

alleged admission. As mentioned above, P.P.'s second - grade

teacher, Ms. Russell, testified that, during a conversation in

the hallway on September 18, 2019, Williams confided to

Ms. Russell that she had "choked" P.P. The undersigned does not

believe that Ms. Russell's testimony is historically accurate in

this regard. Credibility det erminations such as this are the

undersigned's prerogative to make without elaboration , but, as

promised, a brief explanation will be given. There are three

main reasons why the undersigned has found it unlikely that

Williams said to Ms. Russell, "I choke d him."

12. First, Ms. Russell was not a confidant of Williams.

Ms. Russell acknowledged this, saying she was surprised that

Williams would tell her such a thing and agreeing that it

"[m]ade no sense." Indeed, it makes so little sense that

Ms. Russell's description of the confession strains credulity.

Why on earth would Williams tell someone whom she had no

particular reason to trust that she had choked a student ÏÏ a

gratuitous confession that could have ruinous consequences,

including potential ly a criminal prosecution? Stranger things

happen, of course, but the odds are against an unsolicited,

unexpected admission of this nature.

13. Second, Ms. Russell claims that Williams said she had

" choked " P.P. Th is is the word P.P. used in making hi s

allegation against Williams, and it is the term that the

district has used in charg ing and prosecuting Williams. Yet, if

P.P.'s testimony were true (which it probably isn't), the

contact that Williams made with P.P.'s throat could not

reasonably be desc ribed as "choking." The term "choke" in this

context obviously denotes the application of pressure around the

victim's neck or throat to impede breathing and blood flow.

What P.P . described, in contrast, was a brief (one second),

painless touch without a ny constriction about his neck

whatsoever. Thus, if Williams had touched P.P. (she probably

didn't), and if, further, she had confessed as much to Ms.

Russell (which is unlikely), it is highly improbable that

Williams would have admitted doing something f ar worse than that

which P.P. claim s happened ÏÏ which was, again , that Williams

merely brushed the boy's neck with the palm of her hand . 1 /

14. Finally, Ms. Russell did not act like Williams had

admitted having attacked a student. Imagine that you are an

elementary school teacher and that one day, out of the blue, a

colleague of yours, someone whom you do not know well, tells you

that she has choked a thi rd - grade student. Wouldn't you want to

know what had happened? Ms. Russell didn't. More important,

wouldn't you feel the need to report this potential child abuse

to appropriate authorities for investigation, right away?

Ms. Russell didn't.

15. Ms. Ru ssell did not take any immediate action because

"[w]e were heading out to recess. I like to go outside and get

my sun and just relax." Therefore, Ms. Russell testified, "I

didn't call anyone. I didn't do anything. I was going back

outside to relax." I n fact, Ms. Russell never reported

Williams's alleged admission to the school administration or the

Department of Children and Families, even though she knew that,

as a teacher, she had a legal duty to report child abuse upon

becoming aware of reasonable c ause to suspect that such has

occurred. See § 39.201, Fla . Stat. Promptly going outside to

relax in the sun and forget the matter i s not the response one

reasonably would expect from a teacher whose co - worker has just

confessed to choking a student.

16 . Williams's description of the hallway encounter

between her and Ms. Russell rings true. As stated, Williams

knew that Ms. Russell had taught P.P. , and she wanted to find

out what Ms. Russell's experience with P.P . had been like.

Seeing Ms. Russell in the hallway, Williams took the opportunity

to inquire. There is no dispute that Ms. Russell told Williams

that P.P. performed below grade level academically, had

behavior al issues, and lied a lot . 2 / Williams recalls t elling

Ms. Russell that , indeed, P.P. is a liar "because he said I

choked him." The undersigned finds that the alleged "admission"

is nothing but a truncated version of this statement, in which

Williams described P.P.'s charge, not her own conduct.

Determinations of Ultimate Fact

17 . Th e district has failed to prove its allegations

against Williams by a preponderance of the evidence.

CONCLUSIONS OF LAW

18 . DOAH 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.

19 . 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 notice " need not be set forth with the technical nic ety or

formal exactness required of pleadings in court, " it should

" specify the [statute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation. "

Jack er v. Sch . B d . of Dade C nty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J. concurring).

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

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon w h ich dismissal may

be predicated . 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 . , 625 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).

21 . In an administrative proceeding to sus pend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each element of the charged offense(s). See

McNeill v. Pinellas Cnty . Sch . Bd. , 678 So. 2d 476, 477 (Fla. 2d

DCA 1996); Sublett v. Sumter C nty . Sch . Bd. , 664 So. 2d 1178,

1179 (Fla. 5th DCA 1995); MacMillan v. Nassau Cnty . Sch . Bd. ,

629 So. 2d 226 (Fla. 1st DCA 1993).

22 . The instructional staff member ' s guilt or innocence is

a question of u ltimate 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).

23 . In its Administrative Complaint , the district charged

Wil liams with Misconduct in Office and other offenses, the

gravamen of which is that , on September 14 , 201 8 , Williams

grabbed P.P. around the neck and choked him. The parties agreed

that if this factual allegation were proven, the district would

have just ca use to dismiss Williams .

2 4. The district , however, failed to prove, by a

preponderance of the evidence, that Williams choked P.P. as

alleged. Thus, all of the charges against Williams necessarily

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

proof, it is not necessary to render additional conclusions of

law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Broward County School Board

enter a final order exonerating Ava E. Will iams of all charges

brought against her in this proceeding , reinstating Williams to

her pre - dismissal position , and awarding Williams back salary as

required under section 1012.33(6)(a) .

DONE AND ENTERED this 14th day of January , 2020 , 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

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January , 2020 .

ENDNOTES

1 / Just to be clear, the undersigned is not suggesting that

choking is the only contact with a student's neck or throat

which would be disciplinable. In deed, the incidental contact

that P.P. described might constitute just cause for punishment,

but it was not a choking event. The point is, the notion that

Williams would confess to perpetrating a particular type of

physical attack (choking) generally rega rded as both violent and

life - threatening, which she had not in fact committed (if P.P.'s

description of the incident is taken at face value), beggars

belief.

2 / Asked at hearing to identify the things about which P.P. had

lied, Ms. Russell testified:

A . It's many things. Little things. Just

didn't make any sense. From my experience

in the classroom, little things, he wanted

to talk about how kids may have hit him and

they didn't. Or he just lied about not

doing homework or why he couldn't do it, an d

things of that sort.

Q. Okay. So P.P. would lie to get some

other child in trouble?

A. Of course.

COPIES FURNISHED :

Ranjiv Sondhi , Esquire

Denise M. Heekin, Esquire

Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 220 0

Miami, Florida 33131

(eServed)

Robert F. McKee, Esquire

Robert F. McKee, P.A.

Post Office Box 75638

Tampa, Florida 33675

(eServed)

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

(eServed)

Matthew Mears , General Counsel

Department of Education

Turlington Building , Suite 1 2 44

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran , Commissioner of Education

Department of Education

Turlington Building , Suite 1514

325 West Gaines S treet

Tallahassee, Florida 32399 - 0400

(eServed)

Robert W. Runcie , Superintendent

Broward County School Board

600 South east Third Avenue, Tenth Floor

Fort Lauderdale , Florida 333 01 - 3125

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.