Fredrickson v. Denver Public School District No. 1

819 P.2d 1068, 15 Brief Times Rptr. 697, 1991 Colo. App. LEXIS 143, 1991 WL 85460
CourtColorado Court of Appeals
DecidedMay 23, 1991
Docket90CA421
StatusPublished
Cited by3 cases

This text of 819 P.2d 1068 (Fredrickson v. Denver Public School District No. 1) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fredrickson v. Denver Public School District No. 1, 819 P.2d 1068, 15 Brief Times Rptr. 697, 1991 Colo. App. LEXIS 143, 1991 WL 85460 (Colo. Ct. App. 1991).

Opinions

Opinion by

Judge JONES.

Susan Fredrickson appeals from an order of the Board of Education of the Denver Public Schools (Board) terminating her employment as a tenured teacher with Denver Public School District No. 1 (District). We reverse and remand with instructions that Fredrickson be reinstated.

On April 18,1989, the Board, pursuant to § 22-63-117(2), C.R.S. (1988 Repl.Vol. 9), accepted for review charges of dismissal of Fredrickson. Fredrickson elected a hearing on the charges pursuant to § 22-63-117(5), C.R.S. (1988 Repl.Vol. 9).

After the hearing, the Administrative Law Judge (AU) issued his Finding of Fact and Recommendation. The AU concluded that the District had proven the statutory charges of “insubordination,” “neglect of duty,” and “other good and just [1070]*1070cause” for dismissal, and recommended Fredrickson's dismissal.

The Board considered the ALJ’s report and remanded the case to the ALJ for further findings of fact with respect to issues of remediation.

Pursuant to the Board’s remand, the AU conducted another hearing and then issued additional findings in which he cited a number of remedial efforts instituted by the District prior to Fredrickson’s dismissal. The ALJ then, once again, recommended that Fredrickson be dismissed.

On January 18, 1990, the Board adopted the ALJ’s findings and his recommendation of dismissal.

The following relevant evidentiary facts were established by the AU:

“During the 1988-89 school year Fre-drickson was employed by the District at Kepner Middle school. Fredrickson has been employed as a substitute or a full-time teacher by the District since September, 1967.
“On January 4, 1989, Fredrickson had student A.M. in her class. A.M. was repeatedly out of his seat and did not take his seat until he had been warned several times. When he did sit down, Fredrickson placed her hand over his forearm on his desk and told him to stay seated. Fredrickson utilized light pressure in putting her hand over A.M.’s forearm.
“The evidence did not establish that Fredrickson hit A.M., as claimed by A.M.’s parent. Nevertheless, the matter was reported to Marjorie Tepper, Kep-ner’s principal, and Tepper told Fredrick-son at that time that under no circumstances should Fredrickson ever use physical measures to discipline a student.
“On January 14,1989, Fredrickson was on lunch duty and noticed student F.S. seated in the lunchroom when he should have been elsewhere. F.S. routinely attempted to sneak into the building when he should have been outside. Fredrick-son put her hands on his shoulders while F.S. sat in the lunchroom, shook him and commented about his presence in the building.
“It was reported to Tepper by F.S.’s parent that Fredrickson had shaken F.S. violently. However, based upon the evidence presented at the hearing, the Administrative Law Judge finds that Fre-drickson shook F.S.’s shoulders slightly.
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“As a result of the incidents involving F.S. and A.M., on January 18, 1989, Tep-per gave Fredrickson a letter of reprimand. In that letter, Tepper stated that allegations had been made against Fre-drickson ‘regarding the inappropriate manner in which you physically handled children for disciplinary reasons’. The letter of reprimand concluded that ‘physically disciplining a child is behavior that is unacceptable and must cease.’
“At the time the written reprimand was provided to Fredrickson, Tepper discussed with Fredrickson the alternatives to responding to disciplinary situations with physical force. It was discussed with Fredrickson, and Fredrickson was aware, that among various alternatives she could call the office for assistance (using an intercom in the classroom), call a counselor, obtain the assistance of another teacher or student advisor, send students out of the room, send students to the disciplinary room in the building, or that Fredrickson herself could leave the room. These alternatives to physical force are aspects of good classroom management and good instruction.
“On February 7, 1989, Fredrickson had students A.B. and G.M. in her class. Fredrickson noticed these two students writing notes and attempted to take a note out of A.B.’s hand. A.B. attempted to avoid having the note taken by pushing or slapping Fredrickson’s hand away on two or three occasions, but Fredrick-son was able to take the note from her.
“After taking the note from A.B., Fre-drickson walked down the aisle between two rows of desks, heading toward the back of the room. At this time G.M. lightly struck or slapped Fredrickson in the back.
[1071]*1071“Upon being struck, Fredrickson turned around and saw A.B. standing in the aisle with her hands held in the air in a non-threatening fashion, as if to deny having struck Fredrickson. Thinking that A.B. was the one who had struck her, Fredrickson hit A.B. on the shoulder with an open hand: this contact was light, in the nature of a tap, push or shove.
“Upon being struck, A.B. took a step back and asked why Fredrickson had hit her. Fredrickson stated that she had hit A.B. because A.B. had hit Fredrickson. A.B. informed Fredrickson that she had been struck by G.M., at which point Fre-drickson turned and gave G.M. a tap with her hand.
“Fredrickson admits that she was not concerned with her physical safety at the time that she made contact with G.M. Additionally, Fredrickson did not fear that A.B. would take any action against her. In fact, neither A.B. nor G.M. threatened any further physical contact with Fredrickson, they did not advance toward Fredrickson, and Fredrickson could have safely walked away from the incident without striking either student. By her own admission, Fredrickson struck these students because of her belief that it was necessary to show the students that they could not get away with hitting a teacher. In making physical contact with these students, Fredrick-son states that she was reacting to the fact that she had been struck by someone.
“After the above incident occurred, A.B. and G.M. left the room, without permission, and reported the incident to Tepper. Approximately 10 minutes later, Fredrickson was called into Tepper’s office and was told, for her own protection, to write a statement about the incident, which she did. Neither in this statement nor in any discussion with Tepper did Fredrickson state that she believed herself or any other person to be in physical danger from A.B. or G.M.
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“The physical contact with A.B. and G.M. was not of a serious nature. Neither student was injured in any fashion and immediately after the incident they were observed to be laughing about the matter. Neither student was upset by this incident....” (emphasis added)

Fredrickson contends that the evidentia-ry facts, as established by the AU, do not support the Board’s ultimate findings of insubordination, neglect of duty, or other good and just cause for dismissal. We agree.

Although a school board’s findings of ultimate fact must be sustained if warranted in the record, the record, for purposes of judicial review of those findings, consists

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Fredrickson v. Denver Public School District No. 1
819 P.2d 1068 (Colorado Court of Appeals, 1991)

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819 P.2d 1068, 15 Brief Times Rptr. 697, 1991 Colo. App. LEXIS 143, 1991 WL 85460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fredrickson-v-denver-public-school-district-no-1-coloctapp-1991.