Follow this and additional works at: Part of the Administrative Law Commons

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University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 9-12-2011 CORNELIA WHEELER

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law CORNELIA WHEELER Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE METROPOLITAN NASHVILLE BOARD OF EDUCATION IN THE MATTER OF: ) ) ) CORNELIA WHEELER ) DOCKET NO J ) INITIAL ORDER The hearing in this matter occurred on June 8 and 17, 2011 and September 12, 2011, before Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting for the Board of Education of the Metropolitan Government of Nashville and Davidson County. Metropolitan Attorney Mary E. Johnston represented Metro Nashville Public Schools (MNPS). Appellant Cornelia Wheeler was represented by Attorney Tina Rose Camba, Staff Attorney, Tennessee Education Association. When the parties Proposed Orders, Transcripts, and Exhibit Five (5) were received by Thursday, November 17, 2011, this matter became ready for consideration. It is NOTED that the remainder of the Exhibits were not provided. The decision is due to be issued within ten (10) days. The subject of this proceeding is appeal of the three (3) day suspension of Appellant s employment with the Metropolitan Nashville Board of Education (hereinafter Board) for incompetence, unprofessional conduct, and insubordination. 1

3 After due consideration of the record and the arguments of the parties in this matter, it is DETERMINED, by a preponderance of the evidence, that the Appellant engaged in incompetence, unprofessional conduct, and insubordination. Further, the appropriate discipline for such conduct should be a SUSPENSION of TWO (2) DAYS, not three (3) days. This decision is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Appellant Cornelia Wheeler was employed by Metropolitan Nashville Public School System (MNPSS) and assigned to serve as a fifth grade teacher at Brick Church Middle School (Brick Church), during the school year. Appellant is a tenured professional employee with MNPSS. The Appellant has served as a classroom teacher for over twenty-three (23) years. The Appellant has not previously been disciplined. 2. The Appellant is much-loved by many students; some call her Mama. M.D. and some of the students who were tapped or struck wrote statements and testified that they loved the Appellant, but wished that she would stop hitting children. J.E. described the Appellant as always hitting someone. 3. Brick Church Principal Chirelle Jefferson directed her staff Not to put your hands on students, at least annually. On the other hand, the Appellant did not receive hard copy of Metro Schools No Corporal Punishment Policy SS2101 until the third day of the hearing. 2

4 4. Copies of all MNPSS Policies are available on-line. 5. Appellant does not dispute that the directive was given to Not put your hands on students. However, Appellant interpreted that directive to mean don t paddle students, leave marks, strike in anger, etc. The Appellant did not consider tapping a student s arm to be corporal punishment. 6. The Appellant does not dispute that the students were correct when they testified that the Appellant often tapped students. 7. The specific incident complained of occurred on or about January 6, Female student MD was kicking a male student in the groin. Appellant does not deny that she tapped or struck MD s arm two to three (2-3) times, in an effort to get MD to stop kicking. 8. MD testified that the January 6 th hits were really, really hard, that it hurt, and that her arm became numb. 9. Positive Behavior Intervention Support Services (PBIS) was in place as a disciplinary system at Brick Church. Under PBIS, Appellant should have orally demanded that MD stop kicking and then sent her to the principal s office for discipline. 10. Appellant testified that she did not realize that tapping a student s arm constituted corporal punishment. Appellant considered tapping to be for the purpose of getting the student s attention. Appellant was reluctant to concede that students would perceive the taps as imposition of discipline. 3

5 11. The Appellant maintained that she was unclear on the Corporal Punishment Policy, yet, for some reason, Appellant phoned Principal Jefferson at about 5:15 pm, on the day in question, saying that she was in trouble. 12. It is DETERMINED that the Appellant s behavior in phoning Principal Jefferson stands in stark contrast to Appellant s statement that she was unaware of the breadth and depth of the corporal punishment policy. Yet, on the other hand, maybe the Appellant realized that she had struck MD, rather than just tapping MD. 13. Appellant testified that had she known MNPSS interpretation of corporal punishment, she would never have tapped her students. Appellant described herself as a teacher who follows policy; no evidence to the contrary was presented, other than with regard to tapping students. 14. Dr. Brenda King, Executive Director for Human Resources for MNPSS, testified that her understanding of the Policy is that teachers are not to place their hands or other objects on students as a form of correction. Dr. King considered the Appellant s behavior to be child abuse and thus unbecoming of a member of the teaching profession. Dr. King testified that the Appellant admitted engaging in inappropriate behavior on January 6 th. 15. Dr. June Keel, Assistant Superintendent for Human Resources, testified that the Appellant admitted hitting children. Dr. Keel further testified that Dr. Register, the School Superintendent, usually administers a suspension of two to three (2-3) days for violation of the Corporal Punishment Policy. Dr. Keel 4

6 continued that she recalled discussion of the Appellant being from the old school in which corporal punishment was expected and encouraged. Dr. Keel further testified that corporal punishment is outside of the realm of proper behavior for teachers and therefore constitutes unprofessional conduct. 16. Although Appellant denies making admissions during her meetings with Drs. King and Keel, Appellant does not deny tapping MD and other students. Appellant concedes tapping JE and others on the butt to get them to sit up straight, etc. JE testified that such hits sting. 17. Appellant testified that prior to January 6 th she interpreted the corporal punishment policy to mean, Don t whoop nobody. CONCLUSIONS OF LAW 1. In order to prevail, as the petitioning party, MNPSS bears the burden of proof, by a preponderance of the evidence, to show that action should be taken against the Appellant s employment and to show that the type of action requested is proper. 2. MNPSS seeks a three (3) day suspension of the Appellant as a Classroom Teacher with the Metropolitan Nashville Public School System for incompetence, unprofessional conduct, and insubordination. 3. Tennessee Code Annotated, (a)(1), provides that no tenured teacher shall be dismissed or suspended except as is provided in the tenure law, Section et seq. Section (a)(2) states that the 5

7 causes for which a teacher may be dismissed are incompetence, unprofessional conduct, and insubordination as defined in defines: 4. Tennessee Code Annotated, , in relevant portion, Incompetence in Section (5) as being incapable, lacking adequate power, capacity or ability to carry out the duties and responsibilities of the position. This may apply to physical, mental, educational, emotional or other personal conditions. It may include lack of training or experience, evidence unfitness for service, a physical, mental or emotional condition making the teacher unfit to instruct or associate with children Insubordination in Section (7A) as Refusal or continued failure to carry out specific assignments of the principal, when the rules, regulations and assignments are reasonable and not discriminatory ; Conduct unbecoming a member of the teaching profession in Section (3D), may consist of, but is not limited to, Disregard of the teacher code of ethics in part 10 of this chapter, in such manner as to make one obnoxious as a member of the profession PROVEN FAILURES OR PROBLEMS? 5. Based on review of the record presented, it is CONCLUDED to be PROVEN, by a preponderance of the evidence, that the Appellant: A. Tapped or struck MD two to three times on January 6, 2011, in response to MD s kicking of a male student. B. Slapped a male student on his back with such force that the contact was audible. 6

8 C. Has earned a reputation, among students, for hitting students. INCOMPETENCE, UNPROFESSIONAL CONDUCT, AND/OR INSUBORDINATION SHOWN? 6. Next, one must consider whether or not any or all of the events or conduct proven constitute incompetence, unprofessional conduct, and/or insubordination. 7. It is CONCLUDED that the following conduct constitutes INCOMPETENCE: A. Appellant s failure to honor the directive not to place her hands on students. B. Appellant s failure to seek out clarification of the corporal punishment policy, on-line or from Principal Jefferson, generally and specifically. Appellant s suspicion that she was in trouble in some fashion for striking or tapping MD suggests that the Appellant was not completely unaware that the corporal punishment policy applied to her taps. C. Appellant s failure to realize that Principal Jefferson s directive to Not put your hands on students was literal. D. Appellant s apparent inability to control her students without using forbidden taps. 7

9 8. It is CONCLUDED that the following conduct constitutes UNPROFESSIONAL CONDUCT: A. Appellant s failure to follow the Educational Agreement, Article II, Section I, Number 9, indicating that corporal punishment is prohibited. Teachers are charged with knowing what is contained in the Educational Agreement. B. As Dr. Keel states, tapping or touching students as discipline is outside the realm of conduct expected of professional teachers/educators. The determination of whether a teacher is guilty of unprofessional conduct is largely discretionary Morris v. Clarksville-Montgomery County Consolidated Board of Education, 867 SW2d 324, 329 (Tenn. Ct. App. 1993). 9. It is CONCLUDED that the following conduct constitutes INSUBORDINATION: A. Appellant s failure to honor the directive Not to put her hands on students. 10. Based on the entirety of the record, it is CONCLUDED that MNPSS MET its burden of proving, by a preponderance of the evidence, that the Appellant engaged in incompetence, unprofessional conduct and in insubordination. 8

10 IS DISCIPLINE IN ORDER? 11. With incompetence, unprofessional conduct, and insubordination shown, one must consider what level of discipline, if any, is appropriate. 12. Consistent with past MNPSS practice, some level of suspension is appropriate. It is CONCLUDED that a written reprimand would be not be significant enough punishment for causing a student s arm to become numb. 13. Review of the minutes of the MNPSS Board meeting in which the ban on corporal punishment was adopted shows that corporal punishment was never defined. The only example discussed was paddling. 14. Perhaps corporal punishment should be defined in the Policy as Principal Jefferson and Dr. Brenda King define it, i.e. Don t put your hands on children. It seems odd that the term was not defined. Some may say that common sense alone should have been sufficient, but alas, common sense to one person is not common sense to the next person. 15. Perhaps it would have been helpful if tapping, striking, and hitting were specifically discussed and prohibited, particularly for the benefit of old school teachers who were accustomed to using taps to get a misbehaving student s attention / for discipline. 9

11 16. Had there been extensive training on the Corporal Punishment Policy or had the written policy been distributed, rather than it left to the initiative of each individual teacher to both seek out and read the policy as well as interpret the term corporal punishment broadly, the three (3) day suspension envisioned by MNPSS would be proper for a well-loved teacher without prior formal discipline. However, in light of past practice which did permit even paddling of students, it would seem reasonable to put teachers on specific notice that not only had paddling been outlawed, but that any form of touching a student, other than a kind hug or a congratulatory pat on the back, was forbidden. 17. In light of this arguable lack of clarity, it is CONCLUDED that a TWO (2) DAY SUSPENSION, rather than a three (3) day suspension, is the proper discipline for the Appellant s conduct. 18. Such is hereby ORDERED. This Initial Order entered and effective this 22nd day of November, Mattielyn B. Williams Administrative Judge Filed in the Administrative Procedures Division, this 22nd day of November, Thomas G. Stovall, Director Administrative Procedures Division 10

Metro Nashville vs. Angela Coleman, Appellant

Metro Nashville vs. Angela Coleman, Appellant University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 8-10-2006 Metro Nashville vs.