STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ST. LUCIE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1366

)

LLOYD WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties on May 4, 1987 by the undersigned, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Fort Pierce, Florida on June 9, 1987. The issue for consideration was whether the Respondent should be dismissed from employment with the St. Lucie County School District because of the alleged misconduct outlined in the Notice of Charges filed herein.

APPEARANCES

For Petitioner: Jack Gale, Esquire

Phillips & Gale, P.A. The Boston House

239 South Indian River Drive Fort Pierce, Florida 33450

For Respondent: Lorene C. Powell, Esquire

Assistant General Counsel FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

BACKGROUND INFORMATION

On February 17, 1987, the Respondent was suspended with pay from his duties as a teacher with the St. Lucie County School District because of information submitted to the School District that during his employment he handled or touched various female students in a lewd, lascivious, or indecent manner, and that he made lewd, lascivious, or indecent advances toward various female

students. On February 26, 1987, counsel for the school board advised Respondent, by letter, that a formal Notice of Charges, outlining the above allegations, had been approved by the board, a copy being attached to the letter, and further advising Respondent that the board would take action on the superintendent's recommendation for termination at a meeting to be held on March 24, 1987. Respondent was also advised of his right to request a hearing.

Thereafter, on March 11, 1987, through counsel, Respondent requested a hearing before the Division of Administrative Hearings and on March 26, 1987, the file was forwarded for appointment of a Hearing Officer. The case was assigned to the undersigned who scheduled and held the hearing as indicated.

At the hearing, Petitioner presented the testimony of Tenicia J. Poitier, Eugenia M. Lunsford, Joanna McGee, Felicia D. Newton, Tony Lee, Josephine A. Johnson and William M. Griffin, all students at the high school where Respondent taught; Winifred Beam Johnson and Cathy Ann Ferrell, mothers of students taught by Respondent; and Barbara Bretherick, a teacher. Respondent testified in his own behalf and presented the testimony of Fatosha Foster, Autumn Ivette Donovan, Annette Fuller, and Lisa Ranee Frazier, all students of Respondent at Westwood High School; and Carol B. Shaw and Angela F. Diaz, both students' mothers who have known Respondent for several years. Respondent also introduced Respondent's Composite Exhibit A for the limited purpose of indicating no official prior comment had been made to him regarding his relationships with or method of communicating with students.

Respondent submitted proposed Findings of Fact which have been ruled upon in the Appendix hereto. Petitioner specifically declined.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Respondent, Lloyd Wright, was a teacher employed by the St. Lucie County School District at Westwood High School.

   
   

2. Tenecia Poitier was, during the 1986-1987 school year, a student of Respondent in his world history class. In early February, 1987, she filed a complaint against him with school officials because, she says, she got tired of his repeated comments to her of a sexual nature. Reportedly, on one occasion, Respondent indicated to her that he was going to "... fuck her brains out." This comment was overheard by another student in the class, Tony Lee, who believed Respondent was only joking with her. No follow-up action was taken by Respondent on this threat.

3. Ms. Poitier also alleges that on one occasion, while in the school library, Respondent came over and sat down next to her and touched her on the leg. This was observed by Felicia Newton who was sitting across the library table from Ms. Poitier and who, because she was sitting out somewhat from the table, could see Respondent touch her on the outside of the leg. The hug Respondent also gave Ms. Poitier was more of a friendly hug than one with sexual overtones as was the touch. When Ms. Poitier told him to stop, he did and immediately thereafter left the table. Respondent has never hugged or touched Ms. Newton and she has never heard any other girl say Respondent has hugged or touched them except Ms. Poitier, who had told her prior to the library incident that she didn't like the way Respondent was always touching her.

   
   

4. On one other occasion, according to Ms. Poitier, when she got chocolate on her pants in class, she asked to go to the rest room to wash it off. In response, she claims, Respondent grabbed her "butt" and commented, "Girl, I want that thing" or words to that effect. Ms. Poitier claims that when he did that, she "cussed him out."

   
   

5. Ms. Poitier filed her complaint with school officials after reporting the incident to her father. It would appear, however, that the complaint was motivated by fear of punishment herself, as Respondent contends that on the day prior to the complaint, he observed her doing her math homework in his history class and confiscated and destroyed it. When he did this, she became irate and indicated she was going to tell her father.

   With that, Respondent summoned a representative of the administration and had her ejected from class. He also wrote a letter to her counselor complaining that she refused to follow class rules and was disruptive and requested she be taken out of his class because she was not doing the required work. There is ample independent testimony from others, including Ms. Poitier herself; that she curses frequently in class and her reputation for telling the truth is not good.

   
   

6. In addition, Respondent had notified Ms. Poitier that she had been denied membership in the Millionaire's Club which he sponsored, because she would not follow club rules. She was also dismissed from membership in the Pep Club because of her forgery of Respondent's name to hall passes. Neither these latter actions nor the allegations of her removal from class, testified to only by Respondent, were corroborated by independent evidence. Ms. Poitier denies being put out of the Pep Club and claims she quit the Millionaire's club to join another one.

7. Ms. Poitier indicates, on the other hand, that she was written up because she had threatened to tell her father what Respondent had said and done to her. Her veracity being successfully attacked, however, it is found that Respondent's story is more believable.

   
   

8. Respondent, Ms. Poitier claims, also hugged other girls and touched at least one, Ms. McGee, on the leg when she came up to his desk on one occasion. In fact, she claims, he will touch any girl who will put up with it. McGee, on the other hand, denied that Respondent touched her on the leg as alleged by Poitier, but contends he did hug her around the shoulder from the side on one occasion.

   
   

9. More significant, however, is the fact, admitted by the Respondent, that early one morning, while driving his mother to the grocery store, he saw Ms. McGee walking with two boys, one of whom was her brother. Respondent drove up beside them, waved and blew his horn to get their attention, and then told her he was going to take her to the woods. He claims he did not mean the comment to be taken literally but more as a joke like the kids would make. He did not believe that McGee took the comment seriously but, in fact she did, and the comment was totally inappropriate for a teacher to make to a female student under any circumstances.

   
   

10. Other students, such as Eugenia Lunsford, report improper comments by Respondent to them or others. Ms. Lunsford claims she heard him tell girls, in the classroom, that he liked them and ask them if he could have a chance with them. She contends she heard him state that he'd like to "fuck" Cochina Hall and Tenecia Poitier. Ms. McGee remembers Respondent stating he would like to do something sexual to her, and on one occasions, when she asked him to stop peeling a grapefruit in class, he asked her if he could touch her. He never did, however, except to give her a hug. She considers the term "touch" to mean a sexually oriented touching of a girl's private parts. She also recalls an incident where she saw Respondent pull Ms. Foster's shirt away from her body by the pocket and look down the front. She thinks he was looking at her breasts. Ms. Foster, however, denies this incident happened. In light of this, Ms. McGee's testimony is suspect and, like Ms. Poitier, her credibility is slight.

    
    

11. There is no evidence that by any of the hugs that he gave the various girls he in any way committed any inappropriate touching of the breasts or any place else or that though unwelcome, they were sexual in nature. The report by Ms.

    Lunsford of Respondent's touching Ms. Foster's "butt" was denied by Ms. Foster. In substance, Ms. Lunsford's testimony is not credible and Ms. Foster considers Respondent a good teacher. She would not fear going back into his class.

    
    

12. Tony Lee, who heard Respondent make the inappropriate comment to Ms. Poitier, also heard him say to a female student, "Pull your pants down and let me touch you." At the time, Respondent and a group of female students were laughing and joking together and he does not feel that Respondent's comment was seriously made. In fact, Respondent frequently joked with his students, both male and female, making suggestive comments, and everyone knew they were jokes. Lee knows of no incident where Respondent ever attempted to follow up on these comments. He denies ever hearing that Respondent attempted to touch Ms. McGee. To the contrary, she allegedly told Lee she had attempted to touch Respondent and Lee told her she was crazy to do that.

    
    

13. Only one parent had direct knowledge of Respondent's relationship with his students. At one parent/teacher night, Mrs. Johnson was attending Respondent's presentation to a group of students and parents when he reportedly stopped in mid- sentence and ogled one or more female students who came into the room. Mrs. Johnson felt his stare, which, she claimed, constituted a visual undressing of the girls, was inappropriate and embarrassing. Her comments were endorsed by her daughter Josephine, who would not want to go back into Respondent's class. In this incidents however, Respondent neither said anything to or about these girls nor did he attempt to touch them.

    
    

14. Petitioner presented testimony to establish that at one time, Respondent humiliated a male student in his class by implying he was a homosexual. Both the student and his mother were permitted to testify to this incident without objection by Respondent. This is, however, irrelevant to the issues framed by the Notice of Charges and in any case, the student admits that he and another student were smirking at allegedly inaccurate statements made by Respondent during his lecture, misconduct and out-of-line behavior in and of itself. Assuming, arguendo, that Respondent's reaction to the student was inappropriate, it has no relevance to the conduct complained of in the Notice of Charges.

    
    

15. Other present and former students of Respondent indicated that he had a good rapport with his students and is a good teacher. None of these individuals including, Ms. Shaw, Ms. Donovan, Ms. Fuller, Ms. Frazier, and Ms. Diaz have ever seen him be improper or sexual in orientation with students notwithstanding numerous observations. He is not known by these people to flirt with or improperly touch students or to make suggestive comments to them though he would hug from time to

    time. The extent of his familiarity would be comments like, "Hey, baby. How ya doin'?," or words to that effect, comments readily admitted by Respondent. According to Ms. Frazier, a student in Respondent's class with Ms. Poitier, some students would speak improperly to Respondent by cussing at him. Usually, he would warn them but if they got out of hands he would write them up.

    
    

16. Respondent is described by some, and by himself, as a friendly, outgoing, caring person who tries to get his students to achieve their potential. He is a tough taskmaster who expects his students to do their best. By his own admission, he tries to relate to his students by speaking their language and using their phrases. He tries to get his students to relate to him by relating to them and in 9 1/2 years as a teacher he has never before been told this was improper. He admits to hugging his students from the side and to touching them on the arm or head in encouragement while teaching. He rides up and down the aisles in his classroom on a rolling chair so he can sit next to students who are having trouble to help them. He uses flattery, even personal comments such as "You are beautiful" in an effort to motivate his students and denies that any of his comments or touchings were salacious or sexually oriented.

    
    

17. From an evaluation of the evidence, it becomes clear that Respondent did not touch or handle his female students in a lewd, lascivious, or indecent manner. It is equally clear, however, that on several occasions he did make lewd, lascivious, or indecent comments to female students which could be construed as advances though it is doubtful he would have followed through on them.

    
    

18. These comments, however, in the expert opinion of Ms. Bretherick, an experienced teacher, are never appropriate for a teacher to make to a student. A teacher who made such comments would be ineffective as a teacher. Exposure to such a teacher adversely effects the students' capacity to learn the subject matter and clouds or distorts the concept of the teacher.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

20. Section 231.36(4)(c), Florida Statutes 1985 provides:

    
    

    Any member of the ... instructional staff... who is under continuing contract may be suspended or dismissed at any time

    during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude ...

    
    

21. Here, the School Board of St. Lucie County has notified Respondent that it intends to dismiss him from employment with the Board based on his alleged lewd, lascivious, and indecent touching or handling of female student, and his lewd, lascivious, and indecent comments to female students. These actions, if established, would constitute immorality as to the former and misconduct in office as to the latter. In the event either is found to have existed, discipline in some form or another would be appropriate.

    
    

22. The evidence presented by Petitioner is not sufficient to support a finding that Respondent touched or handled any female students in a lewd, lascivious, or indecent manner. Respondent admits to hugging both male and female students and to touching them on the arms or head from time to time. Not all touching, however, amounts to actionable misconduct. The hugging and the touches on the head and arms; admitted to by Respondent do not fall within the actionable category. It is clear that Respondent is a caring and open, demonstrative individual. It is obvious that his touching was as he described it, supportive and intended to motivate, not indecent or sexually oriented. It is equally clear, however, that in the environment of the classroom, physical displays of affection are out of place and can readily be misconstrued as here.

    
    

23. The allegations of improper touching are not supported by credible evidence. Only one incident, that in the library, was supported by any credible evidence and that reflected only that on one occasion, the Respondent briefly touched a female student on the outside of the leg with his hand. Of the other allegations, relating to touching of Ms. McGee or Ms. Foster, both alleged victims denied the touching occurred. Only Ms. Poitier, whose credibility is at best suspect, voiced any serious allegations of improper touching. The evidence is insufficient, therefore, to conclude that Mr. Wright touched or handled any female students in an actionable manner.

    
    

24. As to the language he used, however, that is an entirely different story. He admits to the comments made to Ms. McGee and though he contends they were made in jest, they were improper and inappropriate. The other comments relating to intercourse made to Ms. Poitier were confirmed by the testimony

    of Tony Lee and others whose credibility is not in issue. Even in these cases, however, though the students heard the comments made, they did not take them seriously or consider them any more than joking.

    
    

25. Be that as it may, however, under no conceivable circumstances is language like that used by Respondent appropriate for use by a teacher to his students be they male or female. Respondent cannot recall having made the statements attributed to him but the evidence is clear that they were made in a misguided attempt by the Respondent to relate to the students by utilizing their own speech patterns and language. In doing so, Respondent clearly went beyond the bounds of propriety and is guilty of serious misconduct in office.

    
    

26. No issue was raised as to Respondent's many years of creditable service within this school system. However, it is clear that Respondent's effectiveness in the St. Lucie County School District is irretrievably compromised and discharge is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore;

RECOMMENDED that the Respondent, Lloyd Wright, be discharged from employment with the St. Lucie School District because of misconduct in office.

RECOMMENDED this 27th day of July, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1366

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By Petitioner

Petitioner, by letter, specifically declined to submit proposed findings of fact.

By Respondent

1. Accepted and incorporated Finding of Fact.

2. Irrelevant.

3. Accepted and incorporated Finding of Fact.

4. Accepted and incorporated Finding of Fact.

5. Accepted as to the ultimate fact that the comment was made. Motivation is irrelevant.

6. Irrelevant.

7. Accepted and incorporated in Finding of Fact.

8. Accepted and incorporated in Finding of Fact.

9. Irrelevant.

10. Irrelevant.

11. Accepted and incorporated in Finding of Fact.

12. Accepted and incorporated in Finding of Fact.

13. First sentence is. Accepted and incorporated in the Finding of Fact. Second Sentence is irrelevant to the issues.

14. Accepted and incorporated in Finding of Fact.

15. Accepted and incorporated in Finding of Fact.

16. Accepted.

17. Accepted.

18. Accepted and incorporated in Finding of Fact.

19. Accepted and incorporated in Finding of Fact.

20. Accepted and incorporated in Finding of Fact.

21. Accepted and incorporated in Finding of Fact.

22. Accepted and incorporated in Finding of Fact.

23. Accepted and incorporated in Finding of Fact.

24. Accepted and incorporated in Finding of Fact.

25. Accepted and incorporated in Finding of Fact.

26. Accepted and incorporated in Finding of Fact.

27. Accepted and incorporated in Finding of Fact.

COPIES FURNISHED:

George R. Hill, Superintendent School Board of St. Lucie County 2909 Delaware Avenue

Fort Pierce, Florida 33450

Jack Gale, Esquire The Boston House

239 South Indian River Drive Fort Pierce, Florida 33450

Lorene C. Powell, Esquire Asst. Gen. Counsel FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

Daniel B. Harrell, Esquire First Citizens Federal Building

1600 South Federal Highway, Suite 200 Fort Pierce, Florida 33450

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1988

LLOYD WRIGHT,

Appellant, DOAH CASE NO: 87-1366 CASE NO. 87-2723

v.

SCHOOL BOARD OF ST. LUCIE COUNTY, FLORIDA,

Appellee.

/ Decision filed December 28, 1988

Appeal from the School Board of St. Lucie County. Lloyd Wright, Fort Pierce, pro se appellant.

Daniel B. Harrell of Gonano, Harrell & Sherrard, Fort Pierce, for appellee.

PER CURIAM.

AFFIRMED.

HERSEY, C.J., DOWNEY and ANSTEAD, JJ., concur.

MANDATE

from

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.

WITNESS the Honorable George W. Hersey, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day

DATE: January 13, 1989

CASE NO.: 87-2723

COUNTY OF ORIGIN: School Board of St. Lucie Co.

T.C. CASE NO.: 87-1366

STYLE: Wright v. School Board of St. Lucie

Clyde Heath

Clerk of the District Court of Appeal of the State of

Florida, Fourth District

ORIGINAL TO: School Board of St. Lucie county cc: Lloyd Wright, pro se

Daniel B. Harrell, Esquire

Docket for Case No: 87-001366

Orders for Case No: 87-001366