vs.
Respondent.
) Case No. 01-0248
Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a formal hearing in this case on March 12, 2001, in Sanford, Florida.
For Petitioner: Sandra J. Pomerantz, Esquire
Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J
Whether the Seminole County School Board is entitled to dismiss Respondent for just cause for misconduct in office and/or gross insubordination.
By letter dated January 3, 2001, Respondent, was advised by Paul J. Hagerty, Superintendent, Seminole County Public Schools, that it had been determined that certain of Respondent's actions on December 13, 2000, constituted "misconduct in office" and that he would be suspended without pay. By letter received by the Petitioner on January 16, 2001, Respondent requested a formal administrative hearing.
On January 17, 2001, Paul J Hagerty, as Superintendent of Public Schools for Seminole County, Florida, Petitioner, filed a Petition for Termination of Respondent's Professional Services Contract of Employment, seeking termination for "just cause, including but not limited to gross insubordination and misconduct in office. [Exhibit A attached]"
A notice of hearing setting the final hearing for March 12, 2001, in Sanford, Florida, was entered on January 26, 2001. On February 27, 2001, without objection from Respondent an Order was entered allowing Petitioner to file an Amended Petition for Termination. This amendment added a paragraph alleging that Respondent also was employed as a custodian at another school.
The Petitioner presented three witnesses: teacher, Dawn Towle; principal, Deborah Wright; and Executive Director of Human Resources and Professional Standards for the School Board of Seminole County, Florida, John Reichert. Petitioner
offered 19 exhibits; Exhibits 1- 7 were admitted; but proffered exhibits marked as Tabs 4-15 were not admitted.
The Respondent testified on his own behalf and offered one exhibit which was admitted into evidence. The Transcript of the proceedings was filed on March 27, 2001. Both parties submitted Proposed Recommended Orders.
Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made:
Petitioner, the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida.
Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of the school board.
Respondent, Robert Brinkman, is employed by the School Board of Seminole County, Florida, as both a teacher at Sterling Park Elementary School and a custodian at another school in Seminole County and has a professional services contract for instructional personnel with the School Board of Seminole County. Respondent is 57 years old and has taught school for 23 years. No evidence was presented regarding his status as a custodian other than he was a custodian at the time he received
his letter of suspension and that he was asked to "turn in his keys." He is not currently performing custodial services.
On Wednesday, December 13, 2000, Respondent requested of his supervisor, Principal Deborah Wright, that he be given his paycheck on the following day, Thursday, December 14. The regular payday was Friday, December 15. Respondent advised Principal Wright that he had planned to go on vacation on the 15th and needed his paycheck a day early.
Principal Wright refused to agree to give Respondent his paycheck early, advising him that no one else would be given the checks early and further advising him that he would have to reschedule his vacation.
Respondent returned to the office he shared with Dawn Towle and, as characterized by both Respondent and Miss Towle, "he just lost it" and said "that black bitch won't give me my check."
There is no evidence that this statement was overheard by any students; none were present. Whether the statement was directed to Miss Towle or not, she heard the statement and she responded, "excuse me?", to which Respondent replied "that black lady won't give me my check early."
Miss Towle immediately reported the statement to Principal Wright.
Principal Wright appropriately interpreted Respondent's statement as a racial remark made about her; the racial remark made her angry.
Miss Towle suggests that on four occasions over a two school-year period, while she and Respondent shared their
10-square-foot office, she heard Respondent utter remarks that she considered "similar (racial) comments." The importance of these purported racial comments is discounted by the fact that they occurred in private conversations, some were not epithets or racial slurs, the only one concerning Principal Wright may not have been intended to be heard by anyone (Respondent "mumbled under his breath") and that Respondent denied having made any racial remarks other than the remark on December 13, 2000.
Principal Wright called Respondent to her office, and in the presence of a witness, the assistant principal, told Respondent that "if you ever refer to me by any name other than Mrs. Wright, I will walk you out of the school on your toes." Under the circumstances, while the undersigned can only imagine the true import of the statement, it seems perfectly appropriate.
Respondent immediately attempted to apologize; Principal Wright directed him to leave her office. He returned later that morning and again attempted to apologize and was
again rebuffed. Principal Wright did not accept his apology because she did not believe his apology was genuine.
Principal Wright acknowledged animosity toward Respondent based on previous instances with children; she was not aware of any prior racial remarks made by Respondent.
Respondent mailed Principal Wright an apology one week after the incident indicating that "he was upset" and that his statement was "inappropriate and did not indicate how I feel about you."
Principal Wright testified that Respondent had done nothing that was "racially harassing to her in the past," that his statement did not intimidate her or create a "hostile work environment," and that the statement (dealing with it) took time that she could have devoted to other job responsibilities.
Respondent's statement, while clearly racially and sexually offensive, was isolated and not so severe as to create a hostile or abusive work environment.
Principal Wright immediately reported the statement to John Reichert, who is charged by the School Board with the responsibility of investigating complaints of misconduct.
Mr. Reichert arrived at Sterling Park Elementary School at 12:30 p.m., on the day of the incident. After interviewing Miss Towle and Principal Wright, he interviewed Respondent. Respondent acknowledged making the statement, said
it was "a stupid thing to say" but that he was upset because he couldn't get his check, and that "he just lost it."
The same day or the next, Respondent was suspended with pay which matured into a suspension without pay, effective January 17, 2001.
The slur first heard or overheard by Miss Towle was indirectly published by Principal Wright to the assistant principal who became a witness to Principal Wright's admonishment of Respondent. While the assistant principal is not specifically aware of the text of Respondent's statement, she was made aware that Respondent had made a racial statement about Principal Wright. To the degree this remark has been further published, it is a result of appropriate investigative and administrative action taken by the School Board. There is no evidence that there is a general awareness, in the school system or the community, of Respondent's statement.
Other than the testimony of Miss Towle, there is no suggestion that the Respondent made other sexual/racial statements. He has no record of sexual/racial misconduct.
Respondent maintains that his remark was not racially motivated, that he was just very upset. He has enjoyed working for Principal Wright for five years. At the final hearing, Respondent again acknowledged that what he said was very inappropriate and that he is very sorry for what he said.
There is no evidence that Respondent's remark actually impaired his effectiveness in the school system--which is a necessary factual component of the offense of misconduct in office. The only evidence received on the issue of impairment of Respondent's effectiveness in the school system is John Reichert's testimony that he had no knowledge that Respondent's effectiveness would be impaired anywhere beyond Sterling Park Elementary School.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and the subject matter. Section
120.57 and Subsection 231.36(6)(a)2., Florida Statutes.
A district school board is considered the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Subsection 447.203(2), Florida Statutes. As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work and other legitimate reasons." Section 447.209, Florida Statutes.
"Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of
fact are in dispute," for a school board is "a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).
Respondent is charged under the statutory and regulatory scheme set forth in a Subsection is 231.36(1)(a) and (6)(a), Florida Statutes, and Rules 6B-1.001, 6B-1.006, and
6B-4.009, Florida Administrative Code.
Subsection 231.36(1)(a), Florida Statutes, provides, in pertinent part as follows: "All such contracts, . . . shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes . . . misconduct in office. "
Rule 6B-4.009, Florida Administrative Code, contains the criteria for suspension and dismissal of instructional personnel and provides, in pertinent part, as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in
Rule 6B-1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in
Rule 6B-1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
The Code of Ethics of the Education Profession (adopted in Rule 6B-1.001, Florida Administrative Code) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Rule 6B-1.006, Florida Administrative Code), which are incorporated in the definition of "misconduct in office," provide, in pertinent part, as follows:
6B-1.001 Code of Ethics of the Education Profession in Florida.
(1) The educator values the worth and dignity of every person, . . . .
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(3) Aware of the importance of maintaining the respect and confidence of one's colleagues, . . . .
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
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.
* * *
(5) Obligation to the profession of education requires that the individual:
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(b) Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise
qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization.
* * *
(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; . . . .
The appropriate standard of proof in a school board dismissal proceeding is preponderance of evidence, unless the collective bargaining agreement covering the bargaining unit of which the employee is a member prescribes a more demanding standard of proof. McNeill v. Pinellas County School Board, 678
So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995). Neither party here has pointed to or offered evidence of any contractual provision that would require the School Board to satisfy a more strict standard of proof.
Because the statute and rules providing grounds for terminating a teacher's contract are penal in nature, they must be construed in favor of the employee. Rosario v. Burke,
605 So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of Professional Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).
When a school board seeks to terminate a teacher's contract for cause it must establish each and every element of the charge. MacMillan v. Nassua County School Board, 629 So. 2d
226 (Fla. 1st DCA 1993).
The Amended Petition for Termination indicates "Respondent be terminated for just cause, including but not limited to gross insubordination and misconduct in office [Exhibit A attached]". The attachment, Exhibit A, a letter dated January 3rd, 2001, from Paul J. Hagerty to Respondent, relates that "your actions constitute misconduct in office." The letter makes no mention of gross insubordination. No evidence was presented to support a charge of gross insubordination as defined in Rule 6B-4.009(4), Florida Administrative Code, and, therefore, the gross insubordination charge requires no further elaboration.
Respondent has acknowledged that he uttered a statement that can be appropriately characterized as both sexually and racially offensive. He also acknowledged that the statement was ill-advised and that when he made it, he was very angry and as he and others testified, "he just lost it."
There is no evidence of a pattern of racial or sexual harassment. The testimony of Principal Wright was to the effect that she knew of no other incidents of racial or sexual harassment or statements by Respondent. She was not harassed or
intimidated by the statement he made; she was merely angered by the statement.
The language of Rule 6B-1.006, Florida Administrative Code, is remarkably similar to language used in federal and state law to establish criteria for discrimination actions. In Harris v Forklift Systems, 510 U.S. 17, 21 and 23 (1993), the United States Supreme Court advises:
"[M]ere utterance of an . . . epithet which engenders offensive feelings in a employee," . . . does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview.
Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment.
* * *
But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances.
These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; . . . .
Isolated racial comments are not severe or pervasive enough to create what a reasonable person would objectively find to be a hostile or abusive work environment. Hanley v. Sports
Authority, 120 F. Supp. 2d 1353, 1359 (S.D. Fla. August 18,
2000); Caro v. Miami-Dade County, 105 F. Supp. 2d 1326, 1328,
1329 (S.D. Fla. April 12, 2000); Smith v. Mount Sinai, 36
F. Supp. 2d 1341, 1346 (S.D. Fla. April 22, 1998).
The Petitioner has failed to prove by a preponderance of the evidence that Respondent's isolated statement, offensive as it was, violated Rule 6B-1.001, Florida Administrative Code, Code of Ethics of the Education Profession in Florida. His statement does not demonstrate that Respondent does not "value the worth and dignity of every person," nor does it reflect that he is not "aware of the importance of maintaining the respect and confidence of one's colleagues, "
The Petitioner has failed to demonstrate by a preponderance of the evidence that Respondent's isolated statement constituted engagement "in harassment or discriminatory conduct which unreasonably interferes with a individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment" as contemplated by Rule 6B-1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Profession in Florida. The testimony of Principal Wright is substantial and persuasive evidence that Respondent's statement did not rise to this level.
The offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule that (2) causes (3) an impairment of the employee's effectiveness in the school system. The phrase "so serious as to impair," as used in Rule 6B-4.009(3), Florida Administrative Code, is a subtle statement of the causal component of the offense, making it easy to overlook. Clearly, however, the impaired effectiveness which demonstrates the requisite seriousness of a violation must be caused by the violation at issue.
If, arguendo, one accepts Respondent's statement as being violative of Rule 6B-1.001 or 6B-1.006, Florida Administrative Code, the resulting ineffectiveness component (comprising the second and third elements) is much more problematic. There is no direct evidence that Respondent's effectiveness is impaired beyond the school in which he his teaching. As a result, the School Board must rely on inferences to establish proof of impaired effectiveness.
An "inference" is a permissible deduction from evidence, which the jury may accept or reject or give such probative value as it desires. Greyhound Corporation v. Ford,
157 So. 2d 427, 431 (Fla. 2d DCA 1963); MacDonald v. Department
of Professional Regulation, 582 So. 2d 660, 672 (Fla. 1st DCA 1991). Stated another way, "An inference is a deduction
from facts which reason dictates, . . . ." Stanck v. Houston,
165 So. 2d 825, 827 (Fla. 2d DCA 1964).
In Walker v. Highlands County School Board, 752 So. 2d
127 (Fla. So. 2d DCA), rev. denied, 773 So. 2d 58 (2000), a teacher appealed his discharge on the ground that the school board had failed to prove that his violation of school board policy resulted in impaired effectiveness. The charges against him stemmed from a classroom incident that arose from two apparently unrelated disruptions: an alleged theft of someone's compact disc and the presence of an intoxicated student.
Id. at 128. A commotion ensued when the students learned that school authorities, whom the teacher had summoned for assistance, would search their personal belongings. The teacher fanned the flames by offering to hold the students' contraband in exchange for cash, although he evidently did not intend that anyone would take this highly inappropriate proposal seriously. Not surprisingly, the situation degenerated into chaos. Id.
The second district held that "under the circumstances . . . [the teacher's] ineffectiveness in the school system may be inferred." Id. Elaborating, the court
explained that the "chaos in [the teacher's] classroom" -- which accompanied his violation of "established school board
policy" -- "sp[oke] for itself" regarding the teacher's resulting ineffectiveness. Id. It was, therefore, permissible
for the trier of fact to infer the teacher's impaired effectiveness in the school system from the loss of classroom control to which his violation of school board policy immediately had led.
In Walker, the basic fact from which the trier could
infer impaired effectiveness -- that which spoke for itself -- was classroom chaos, that is, the contemporaneous consequence of the teacher's violation of school board policy. Indeed, the classroom chaos that resulted immediately from the teacher's rule violation constituted direct (as opposed to circumstantial) evidence of some actual impaired effectiveness on one occasion, of limited duration. The second district did not say, explicitly, that resulting impaired effectiveness could be inferred merely from the fact of the violation itself.
In Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995), the court affirmed an order
terminating a teacher's employment, notwithstanding the absence of evidence of impaired effectiveness, because "it is clear from the record and the order that the conduct must have impaired his effectiveness as a teacher, in this case."
Similarly, in Purvis v. Marion County, 766 So. 2d 492
(Fla. 5th DCA 2000), where a high school teacher was fired as a consequence of being arrested and tried on criminal charges of resisting arrest and battery on a law officer, the court upheld
the school board's rejection of an administrative law judge's determination regarding the teacher's ongoing effectiveness and the school board's conclusion that the violation at issue had caused ineffectiveness. The court stated at page 498, "Because we do not consider, at least in this case, that the decision whether the particular misconduct at issue is so 'serious as to impair an individual's effectiveness in the school system' requires testimony of actual impairment from students or parents, we affirm."
Walker, Summers, and Purvis are distinguishable from the case at bar because the violations in these cases were so egregious as to evidence impairment of the individual's effectiveness in the school system without specific testimony. In the instant case, Respondent's offensive comment had none of the implications on his effectiveness as did the violative conduct in the cited cases.
If the school board intends that the circumstances in this case justify drawing the inferential conclusion that the Respondent's isolated, offensive comment violated
Rule 6B-4.009(3), Florida Administrative Code, and was so serious as to impair his effectiveness in the school system, it has failed.
Principal Wright was understandably hurt and angered by Respondent's comment, but her admonition that "if he ever
called her anything other than Mrs. Wright, she would walk him out of the school on his toes," is indicative of the fact that she anticipated that he would continue to teach at Sterling Park Elementary School and that she did not believe that termination of Respondent's teaching contract was an appropriate punishment.
RECOMMENDED that Seminole County School Board enter a final order dismissing the charges against Respondent and returning him to full duty, effective January 17, 2001, with all back pay and benefits.
DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida.
JEFFREY B. CLARK
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2001.
Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08
Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Sandra J. Pomerantz, Esquire Seminole County School Board
Dr. Paul J. Hagerty Superintendent
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.
