19-005282TTS Palm Beach County School Board vs. Jacinta Larson Status: Closed Recommended Order on Wednesday, December 2, 2020.

Summary: Petitioner failed to prove that teacher?s shoving of chair along the floor at a student, in fear after student had charged teacher and tried to intimidate her, violated any applicable statutes or rules so as provide just cause for the teacher?s dismissal.

Education rules (Rules) discussed below ; and, if so, whether Petitioner's

termination of Respondent is consistent with the provision of progressive

discipline set forth in the Collective Bargaining Agreement for the perio d,

July 1, 2017 , through June 30, 2020 (CBA).

P RELIMINARY S TATEMENT

By undated Administrative Complaint served on Respondent's counsel on

October 3, 2019, Petitioner alleged that the above - stated facts constitute just

cause for a 15 - day suspension without pay followed by termination under

section 1012.27(5), Policies 1.013(2) and 3.27, Rule 6A - 5.056(2), and

CBA article II, section M , on the grounds that Respondent failed to fulfill the

responsibilities of a teacher, fail ed to exercise best judgment, injur ed a

student, and disrupt ed the students' learning environment. The

Administrative Complaint alleges that Respondent is guilty of ethical misconduct , as proscribed by Policies 3.02(4)(a) and (d) and (5)(a)(i) - (iii) and

(viii), Rules 6A - 10.081(1)(b) a nd (c) and (2)(a)1. and 5. and 6A - 5.056(2)(a) - (d);

a failure to fulfill the responsibilities of a teacher, as required by

Rule 6A - 10.081(1)(b) and (c) and (2)(a)1. and Policy 1.013(1); and a failure

to follow a policy, rule, directive, or statute, as requi red by Policies 1.013(1),

3.10(6), and 3.27; Rule 6A - 5.056(2)(a); and CBA article II, section M.

By request filed on August 30, 2019, Respondent requested a formal

hearing .

Petitioner transmitted the file to DOAH on October 3, 2019. In the Joint

Response to Initial Order, the parties waived the 60 - day deadline, set forth in

section 1012.33(6)(a)2., for conducting the hearing following the receipt of

Respondent's request for a hearing. The administrative law judge issued a

Notice of Hearing setting the case to be heard on December 4 and 5, 2019. On

October 17, 2019, the parties filed a Joint Motion for Continuance. By notice

issued on October 18, 2019, the administrative law ju dge reset the hearing

for January 6 and 7, 2020 ; b y notice issued on October 31, 2019, the

administrative law judge , on his own initiative, reset the hearing for

January 9 and 10, 2020, as had been requested by the parties in their joint

motion . On Decembe r 13, 2019, Respondent filed an Unopposed Motion for

Continuance, which the administrative law judge granted by order of even

date that reset the hearing for April 13 and 14, 2020. On March 26, 2020, the parties filed an Unopposed Motion for Continuance, w hich the administrative

law judge granted by order entered April 8, 2020, resetting the hearing for

August 13 and 14, 2020. On August 3 and 7, 2020, the parties filed Joint

Motion[s] for Continuance, which the administrative law judge granted by

order ente red August 11, 2020, resetting the hearing for September 21

and 22, 2020.

At the hearing, Petitioner called four witnesses and offered into evidence

31 exhibits: Petitioner Exhibits 1 through 31 . Respondent called two

witness es and offered into evidence 4 5 exhibits: Respondent Exhibits 1

through 45 . All exhibits were admitted.

The court reporter filed the transcript on October 14 , 2020. After

obtaining a couple of extensions of time, t he parties filed proposed

recommended orders on November 30 , 2020.

F IN DINGS OF F ACT

1. Respondent is a 61 - year - old teacher holding educator certificate s in

middle school mathematics and business education. Petitioner has employed Respondent as a classroom teacher since 2005. Respondent has no prior

discipline.

2. Since 2012, Respondent has taught at Turning Point Academy, which

is an alternative school operated by Petitioner. The students at Turning

Point Academy have been expelled from, or repeatedly disciplined at, other

schools and range in age from 14 to 17 yea rs old. In December 2018,

90 to 95 students were enrolled in the school, but absences, usually

unexcused, averaged about 40% each day.

3. The school building is organized with several classrooms opening onto

a common area, where a behavior intervention associate (BIA) sits at a desk, ready to help a teacher in an adjoining classroom control disruptive student

behavior. In each common area are restrooms and an e ating area. The BIA

serving Respondent's common area on the date in question had ten years'

experience as a BIA and 22 years' prior experience as a sheriff's deputy.

4. Respondent has been fully trained in appropriate interactions with

students and classroom management. Respondent's evaluations for 2016 - 18

were all "Effective"; her evaluation for 2019 was "Highly Effective."

However , the assistant principal of the school was dissat isfied with

Respondent's classroom management skills. In response to what he viewed

to be an excessive number of office referrals, the assistant principal had

recently directed Respondent to take care of the behavior problems herself

and had assigned her t o take a two - part program on classroom management.

5. The assistant principal also directed Respondent to use the school's

system of assigning tall y marks for good and bad behavior . Absent seriously

inappropriate behavior, the tally system require s three bad tally marks

before the teacher could refer a student to the BIA, who then could decide whether to refer the student to the office. The record is silent as to the effectiveness of the tally system in shaping student behavior in general , but

it is unlikely t hat the two student disrupters at the center of the incident on

December 20, 2018 , were deterred by the prospect of a few (more) bad tally

marks.

6. During the 2018 - 19 school year, Respondent taught math to students

in sixth through eighth grades. The class at issue was a 100 - minute,

eighth - grade math class that took place late on the day of December 20,

2018, just before winter break.

7. M idway through the class , which was attended by six students on that

day , three students began acting up . Respondent promptly intervened, and

one of the students returned to his work. However, the other students left

their assigned seats without permission. One student ran toward the back of

the classroom, and the other student ran toward the front of the classroom,

where Respon dent was situated at her desk in the corner opposite from the

corner at which the door to the common area was located. The students were

yelling profanities and tossing paper in the air -- some of both of which w ere

directed at Respondent. One or both of the students demanded to know

where Respondent lived and what kind of car she drove in a clear attempt to intimidate her. The student running toward Respondent invaded

Respondent's space, as he ran behind her desk in the narrow space between

her desk and the whiteboard, where he seized a marker, taunted Respondent

that he had the marker , and wrote the word, "fuck , " on the whiteboard.

8. The class was equipped with a buzzer to summon the BIA, but the

buzzer was located by the classroom door on the opposite side of the room

from Respondent's desk. It is unclear if it occurred to Respondent to tell

another student to hit the buzzer , but she never did so and had never

pr eviously done so . Instead, Respondent leaned over the depth of her desk --

about three feet -- and grasped a lightweight chair with a plastic back and

seat and metal legs. She shoved or pushed the chair briskly across the tile

floor in the direction of the stu dent who had rushed her desk, even though

he was now careening toward the classroom door along the front of the

classroom in the space between the whiteboard and the first row of desks .

The chair missed the fleeing student, but st r uck the wall under the

wh iteboard with sufficient force that it ricocheted into the desk of a student

who was seated, watching this incident unfold. The chair caused the desk to

topple onto the right knee of the student.

9. In his deposition, the injured student testified that, in ad dition to the

ice applied to the knee immediately after the incident, the only treatment

that his knee required was a couple of weeks' rest. The next day, the injured

student was back at school walking without favoring the injured knee. The

assistant princ ipal directed Respondent to telephone the injured student's

parent and inform her what had happened, suggesting that the assistant

principal considered the injury minor -- or else, from a liability perspective, he

would have made the call himself, rather tha n assign the responsibility for

making the call to the staffperson who had caused the injury. Respondent

made the assigned call to the injured student's parents -- and, on her own,

several others during the winter break to check on the child whom she had

acc identally injured with the shoved chair.

10. In her initial statement, Respondent stated that she had thrown the

chair, rather than shoved it along the floor. The injured student testified

that Respondent threw the chair above the height of the desks, but desks did

not occupy the space between her and the fleeing student, so, at minimum, elevation was unneeded to hit the student with the chair . O ther student

testimony indicated that the chair did not rise above the tops of the desks.

11. More importantly, Respo ndent remained behind her desk, and the

chair was in front of the desk. If Respondent could gain the leverage to lean across the desk and grasp the chair, she would lack the leverage to throw it

with any force at all. The proof establishes no more than tha t Respondent

leaned across her desk and gave the chair a hard shove across the front of

the classroom in the direction of the fleeing student.

12. It is difficult to understand why Respondent would state that she had

thrown the chair , if she had not thrown th e chair in the common sense of the

word, "throw," which is " to propel through the air by a forward motion of the

hand and arm ."

1 Clearly, when she gave the statement to the school police

investigator shortly after the incident, Respondent remained overwhel med

1 Merriam - Webster online dictionary, https://www.merriam - webster.com/dictionary/throw .

by what had happened to her in her classroom. Also, a s demonstrated at the

hearing, Respondent's language skills are not so highly developed that she

would invariably differentiate between throwing a chair in the air and

shoving a chair along a floor.

13. Two key witnesses establish Respondent's condition during and

immediately after the incident. According to the BIA, who saw Respondent a

few seconds after the incident ended, Respondent was not angry, but was visibly shaken up and upset. She told the BIA t hat she had been afraid when

the student charged her. The injured student testified similarly that Respondent's reaction was fear, not anger. Interestingly, the injured student admitted that he too would have experienced fear, even though the charging

stud ent was a classmate. Immediately after testifying to this fact, the

injured student added that he had overheard the two disruptive students at

lunch discussing school shootings -- a highly sensitive issue in schools today

and even more so in December 2018, o nly a few months after the Parkland

shootings .

14. Respondent claims that she acted in self - defense . There are two

problems with this claim. First, objectively, Respondent did not act in self -

defense , because, by the time that she shoved the chair, the student was

running away from her, and she was out of immediate peril. On the other hand, the charging student had momentarily terrified Respondent, and it is

not inconceivable that, in her fearful or p anicked state , she formed a plan of

action that, by the time she execute d it, was a fraction of a second after the

rushing student had turned to run across the front of the classroom.

15. The second problem is the belated emergence of Respondent's claim of

se lf - defense, months after the incident took place , but there are a couple of

explanations . As noted above, Respondent's claim of self - defense is a little

bit of a mislabeling . Perhaps the two students' outrageous behavior caused

Respondent to feel that she needed to defend herself; without doubt, this

behavior caused Respondent to react in fear and even panic. P erhaps

Respondent did not find even the self - defense label for her claim until

represented by counsel . Clearly, Respondent omitted numerous important

details concerning the behavior of the two disruptive students in her initial

statement -- again, not surprisingly, as she was still overwhelmed by what

had happened to her and that she had accidentally injured an innocent

student -- in fear, not in anger.

16. In terestingly, when Respondent finally presented the additional

details, the assistant principal rejected them as Respondent 's "changing her

story." This dismissal betrays Petitioner's misconception of the case, whose

center is not the changed fact of the sp ecific action that Respondent applied

to the chair, but to her state of mind when she applied the action to the

chair. Regardless of whether she had thrown the chair high in the air or

shoved it along the floor, Respondent had been driven by the two disrup tive

students to a state of utter fear and likely panic. To the assistant principal

and Petitioner generally, a second changing fact may have been that she acted in fear, not anger, but no competent evidence ever supported characterizing her state of mind as angry. Despite the myriad conferences,

emails, and witness statements filling Petitioner's file , there is no thoughtful

analysis of what motivated, or drove, Respondent to apply force to the chair in the direction of the fleeing student . To the contrary , Petitioner has

ignored strong evidence on this crucial issue from two witnesses -- one of

whom is disinterested and exceptionally experienced and comp e tent at

reading demeanors, collecting evidence, and analyzing evidence . And this

evidence clearly establi shes th e reaction of an older woman in a state of fear

or panic, not anger.

17. Nor did student testimony, besides from the injured student, support

Petitioner's theory of the case. The deposition testimony of these students

was of little value because it was vague or guarded . During a particularly

unproductive deposition of one of the disruptive students, likely the one who

rushed Respondent , 2 the following exchanges occurred :

Q: Okay, Mr. O, I want to make something very

clear t hat we're not here today because of anything

that you did. You're not in trouble or you're not

here because you did something wrong.

A: Uh - huh.

Q: Okay. We just are trying to get some

information and to see if you have any recollection

of some events tha t occurred --

A. All right.

Q: last school year in December. Do you recall

giving a statement to school police about a

situation that happened in Ms. Larson's class, a chair that was thrown?

A: (Shakes head)

Q: You don't? Say yes or no.

A: No, ma'am.

Q: All right. One moment please. Do you recall

giving a statement to school polic e that you were

getting papers off Ms. Larson's desk when a chair was thrown at another student?

A: No. Who this go to?

Q. Pardon me?

A. Who this go to?

Q. What is your question?

A. Who do all this go to?

2 It is hard to identify individual students due to the redactions and absence even of students'

initials in the Petitioner's investigative paperwork.

Q. It's going before a judge in a case, a different

case.

A. I'm saying, so why do I got something to do with

this?

Q. Because you gave a statement to the school

police. You were in class the day that Ms. Larson

thre w a chair and hit a student in his knee.

A. I gave a statement?

* * *

[After the student refused to waive reading and signing]:

Q. Okay. So we will have [the transcript] sent to

Ms. Richardson.

A. So this something that I got to go to court for?

Q. Well, probably not. We might use your deposition instead of … . Remember, this has

nothing to do with you.

A. I thought --

Q. This is all about Ms. Larson.

A. A deposition like when you get send sent to a

program.

Deposition of G.O., pp. 10 - 11 and 16 - 17.

18. At bottom, Respondent found herself in a very bad situation not at all

of her making. In a blatant attempt to reduce the classroom to utter chaos,

rather than to cause a mere disruption, two students unfortunately seem to

have succeeded in mom entarily terrorizing a teacher into incoherence.

19. Neither the school police officer nor any of Petitioner's supervisory

employees saw the need to contact outside law enforcement . A document

mentions a child protective investigator by name, but the record does not

suggest that she pursued an investigation . The prevailing thinking among

Petitioner's representatives seems to have been that Respondent was neither

negligent nor reckless and that s he did not intend to hurt the injured

student , whose parents did not wish to pursue the matter due to the

negligible injur y . Understandably, no one seems to have analyzed the

situation from the perspective of the actual target of the chair -- the fleeing

stu dent -- as such an exercise would have uneasily cast the real perpetrator

as the victim . But such an exercise might have led Petitioner at least provisionally to set aside its fixation with the "fact" that Respondent had

thrown the chair high in the air and, more importantly, its assumption that

Respondent had acted in anger.

C ONCLUSIONS OF L AW

20. DOAH has jurisdiction. §§ 120.569 , 120.57(1) , and 1012.33(6)(a)2.

21. Petitioner must prove the material allegations by clear and

convincing evidence. CBA, art . II, § M.1. 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).

22. A charging document must allege facts that support an alleged

violation of law, because disciplinary action against a licensee based on

unalleged facts would violate the licensee's right to a hearing under

chapter 120. Cottrill v. Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st

DCA 1996). See also Trevisani v. Dep't of Health , 908 So. 2d 1108 (Fla. 1st

DCA 2005) .

23. Section 1012.33(6)(a) authorizes Petitioner to suspend or di smiss an

instructional employee for "just cause" at any time during the term of her

contract , although, "if the charges are not sustained," Petitioner must

reinstate the employee with back pay.

24. As provided by section 1012.33(1)(a), " j ust cause includes" t he

following, as defined by rules of the State Board of Education of the

Department of Education:

immorality, misconduct in office, incompetency , …

gross insubordination, willful neglect of duty, or

being convicted or found guilty of, or entering a

plea of guilty to, regardless of adjudication of guilt,

any crime involving moral turpitude.

25. Rule 6A - 5.056(2)(a) - (d) provides:

" 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 are 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 the following:

(a) A violation of the Cod e of Ethics of the

Education Profession in Florida as adopted in

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

(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;

[or]

(d) Behavior that disrupts the student’s learning environment [.]

26. Rule 6A - 10.081 provides :

(1) Florida educators shall be guided by the following ethical principles:

(b) The educator’s primary professional concern will always be fo r the student and for the development

of the student’s potential. The educator will

therefore strive for professional growth and will

seek to exercise the best professional judgment and integrity.

(c) Aware of the importance of maintaining the

respect and confidence of one’s 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) Florida educators shall comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educator’s certificate, or the other penalties as provided by law.

(a) Obligation to the student requires that the individual:

1. Sh all 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.

2. Shall not unreasonably restrain a student from

independent action in pursuit of learning.

3. Shall not unreasonably deny a student access to

diverse points of view.

4. Shall not intentionally suppress or distort subject matter relevant to a student’s academic

program.

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparage ment.

27. Despite its arguable inclusion as a basis for misconduct in office, as

defined by Rule 6A - 5.056(2)(b), Rule 6A - 10.081(1) provides no disciplinary

grounds due to its aspirational nature . Impliedly underscoring this fact,

Rule 6A - 10.081(2) explicitly states that its elements are mandatory or

prohibitory and the violation of any of them exposes the teacher to

discipline.

28. Policy 1.013(1) states that school board employees must carry

out their assigned duties in accordance with all ap plicable laws.

Policy 3 . 10(6) provides that employees must carry out their obligations

under "Policy 1.013 , their job descriptions and reasonable directives

from their supervisors that do not pose an immediate serious hazard to

health and safety or clea rly violate established law or policy." The final part

of this policy starting with "that do not pose" modifies only "reasonable

directives," so Policy 3 . 10(6) says only that employees must conform to Policy

1.013, which, as noted above, says only that emp loyees must conform to all

applicable laws -- all duly noted.

29. Policy 3.0 2 is the Code of Ethics governing Petitioner's employees.

The Administrative Complaint cites Policy 3.02(4)(a) and (d), but out of

context, so a much fuller citation of this policy is necessary to understand

why the cited provisions are inapplicable for present purposes. 3

Policy 3.02( 2 ) provides that Policy 3.02 applies to all of Petitioner's

employees. Policy 3.02(3) states that the Code of Ethics provides "general

g uidance" for the benefit of employees, who " should use good judgment to

fulfill the spirit as well as the letter of this Code of Ethics, and should "

identify ethical issues, apply the Code of Ethics and applicable law to ethical

issues, and obtain guidance from the relevant department head.

30. Policy 3.02(4) provides:

Accountability and Compliance

Each employee agrees and pledges:

a. To provide the best example possible; striving to

demonstrate excellence, integrity and responsibility in the workplace.

b. To obey local, state and national laws, codes and

regulations.

c. To support the principles of due process to

protect the civil and human rights of all students

and individuals.

3 Petitioner Exhibit 32 was intended to be Policy 3.02 or at least 3.02(4), but omits

the provisions follo wing the introduction to Policy 3.02(3). The citation in the

text accompanying this footnote is from Petitioner's official website:

https://go.boarddocs.com/fl/palmbeach/Board.nsf/Public# . The website states that the

policy was last revised in 2017.

d. To treat all students and individuals with

respect and to strive to be fair in all matters.

e. To create an environment of trust, respect and

non - discrimination, by not permitting

discriminatory, demeaning or harassing behavior of

students or colleagues.

f. To take responsibility and be accountable for his

or h er acts or omissions.

g. To avoid conflicts of interest or any appearance

of impropriety.

h. To cooperate with others to protect and advance

the District and its students.

i. To report improper conduct.

j. To be efficient and effective in the delivery of all

job duties.

k. To cooperate during any investigations or

proceedings.

31. The general pronouncements of Policy 3.02(4) are fleshed out in

Policy 3.02(5). For instance, the ge neral admonition against conflict s of

interest generates 15 specific provisions in Policy 3.02(5)(d) and (e); these

specific provisions , not the general pronouncement, contain the grounds for

employee discipline. In the same way, Policy 3.02(5) provides the enforceable

requirements and pro hibitions referenced generally in Policy 3.02(4) (a)

and (d).

32. The Administrative Complaint cites Policy 3.02(5)(a) (i) - (iii) and (viii),

although the entire subsection is cited for context in support of the

treatment of Policy 3.02(4):

Abuse of Students -- We are committed to ensuring

that employee - student relationships are positive,

professional and non - exploitative. We will not

tolerate improper employee - student relationships.

Each employee should always maintain a

professional relationship with students, bot h in and

outside of the classroom. Unethical conduct

includes but is not limited to:

i . Committing any act of child abuse or cruelty,

including physical and verbal abuse, or any act of

child endangerment.

ii . Exposing a student to unnecessary

embarrassment or disparagement.

iii. Excessive or unnecessary physical interaction

with a student, including horseplay.

iv . Using one’s professional relationship or

authority with students for one’s personal

advantage.

v . Engaging in, or being convicted of, a crime

involving children as provided in Section 1012.315,

Florida Statutes, as now or hereafter amended.

vi . Engaging in any sexually related behavior with

a student with or without consent of the student. Sexually related behavior shall include, b ut not be

limited to, such behaviors as sexual jokes; sexual remarks; sexual kidding or teasing; sexual innuendo; pressure for dates or sexual favors;

inappropriate physical touching, kissing, or

grabbing; rape; threats of physical harm; sexual

assault and any sexual act as provided for in

Section 1012.315, Florida Statutes.

vii . Engaging in bullying or harassing behavior on

the basis of race, gender, sex, national origin, age,

religion or disability, sexual orientation or gender identity in violation of S chool Board Policy Nos.

5.001 (Protecting Students from Harassment and Discrimination); 5.81 (Protecting Students from

Sexual Harassment and Discrimination), as now or

hereafter amended; and 5.002 (Anti - Bullying and

Harassment) as now or hereafter amended; or, in

violation of any related federal or state laws.

viii . Engaging in misconduct which affects the

health, safety and welfare of a student(s).

ix . Soliciting, encouraging, participating or

consummating an inappropriate written, verbal, or

physical rel ationship with a student.

x . Furnishing tobacco, alcohol, or

illegal/unauthorized drugs to any student or

allowing a student to consume alcohol, or illegal/unauthorized drugs, contrary to School

Board Policy Nos. 3.96 (Drug - and Alcohol - free

Workplace) and 3.961 (Drug and Alcohol - free

Workplace Policy for Employees Performing Safety - Sensitive Functions and Holders of

Commercial Drivers Licenses), as now or hereafter amended .

33. Policy 3.27 contains a number of procedural provisions governing

hearings in conne ction with the suspension and dismissal of employee s , but

does not provide additional grounds for such action.

34. CBA article II, sect ion 7. , provides:

Except in cases which clearly constitute a real and immediate danger to the District, a District

employee, and/or a child or the actions [or]

inactions of the employee clearly constitute flagrant

or purposeful violations of reasonable school rules and re gulations, progressive discipline shall be

administered as follows:

a. Verbal Reprimand with a Written Notation .

b. Written Reprimand .

c. Suspension Without Pay … .

d. Dismissal .

35. The salient provisions of law applicable to a determination of whe ther

Petitioner has proved by clear and convincing evidence that it has just cause

to dismiss Respondent are thus Rules 6A - 5.056(2)(d) and 6A - 10.081(2)(a)1.

and 5. and Polic y 3.02(5)(a)(i) - (iii) and (viii) .

36. Petitioner failed to prove that Respondent is guilty of behavior that

disrupted the student's learning environment. The two disrupting students

had destroyed the learning environment, likely for the remainder of the class

period, with their outrageous behavior, including the charging student's

ass ault of Respondent. In this sense, there was no learning environment left

to disrupt when Respondent shoved the chair . Nor has Petitioner proved

that Respondent's fear - driven reaction to the assault by the charging

student constituted behavior for which sh e could be held accountable.

37. Petitioner failed to prove that Respondent failed to 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. The charging

student in particular set into motion the chain of events that led to

Respondent's shoving the chair across the floor toward the student, but accidentally inflicting a mild injury on an innocent student. Respondent had

tried to restore order at the start of this inc ident and thus had done what

she was required to have done. Respondent's fear - driven shoving of the chair

was excusable and did not breach this duty that she owed to the injured

student. Of course, the same analysis applies, if Petitioner intended this

all egation also to apply to the target of the chair, the charging student.

38. Petitioner failed to pr o ve that Respondent intentionally expose d a

student to unnecessary embarrassment or disparagement. There is no

suggestion that the injured student suffered any e mbarrassment or

disparagement as the result of his improbable, but minor, injury.

Respondent's fear - driven shoving of the chair was not an intention al act

within the meaning of this rule. If Petitioner intended this allegation also to

apply to the target of the chair, it is unlikely that he was thus exposed to

any embarrassment or disparagement or, if he was, that the embarrassment

or disparagement was unnecessary.

39. For the same reasons, Pet itioner failed to prove that Respondent

committed any act of child abuse or cruelty, including physical and verbal

abuse, or any act of child endangerment , that Respondent exposed a student

to unnecessary embarrassment or disparagement, that Respondent ent ered

into excessive or unnecessary physical interaction with a student, or that

Respondent engaged in misconduct that affects the health, safety, or welfare

of a student. Again, Respondent acted in fear upon an immediate assault

upon her by the charging st udent, so that her shoving of the chair in his

direction did not violate any of these provisions.

40. Under the circumstances, it is unnecessary to consider the issue of

progressive discipline.

R ECOMMENDATION

It is

R ECOMMENDED that Petitioner enter a final order finding Respondent not

guilty of the charges set forth in the Administrative Complaint and

reinstating her with full back pay.

D ONE A ND E NTERED this 2nd day of December , 2020, in Tallahassee, Leon

County, Florida.

R OBERT E. M EALE

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 2nd day of December , 2020.

C OPIES F URNISHED :

Jean Marie Middleton, Esquire

V. Danielle Williams, Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hill Boulevard, Suite C - 331

West Palm Beach, Florida 33406

(eServed)

Nicholas A. Caggia, Esquire

Johnson & Caggia Law Group

510 Vonderburg Drive, Suite 303

Brandon, Florida 33511

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Donald E. Fennoy II, Ed.D., Superintendent

Palm Beach Count y School Board

3300 Forest Hill B ou l e v ar d, Suite C - 316

West Palm Beach, F lorida 33406 - 5869

Thomas L. Johnson , Esquire

Law Office of Thomas Johnson, P.A.

510 Vonderburg Drive, Suite 30 9

Brandon, Florida 33511

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.