vs. ) Case No. 01-2508
THOMAS D. LINDEMANN, )
Respondent. )
On August 23, 2001, a formal administrative hearing in this case was held in Bartow, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Donald H. Wilson, Jr., Esquire
Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The issue in the case is whether the Respondent’s employment with the Polk County School Board should be terminated.
By letter dated May 21, 2001, the Polk County School Board (Petitioner) notified Thomas D. Lindemann (Respondent) that the Board intended to terminate his employment as a teacher. The Respondent requested a formal administrative hearing to challenge the proposed termination. The Petitioner forwarded the Petition to the Division of Administrative Hearings, which scheduled the proceeding.
11 witnesses and had exhibits numbered 1-19 admitted into evidence. The Respondent testified on his own behalf, presented the testimony of two witnesses and had one exhibit admitted into evidence. Joint exhibits numbered 1-2 were also admitted into evidence.
A Transcript of the hearing was filed September 10, 2001.
Both parties filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.
At all times material to this case, the Petitioner employed the Respondent as a teacher pursuant to a Professional Services Contract.
On April 1, 1999, the Respondent, then employed as a teacher at Jenkins Middle School in Haines City, Florida, became involved in an incident between a student and the
parent of another student, during which the parent physically assaulted the student. The Respondent’s involvement was deemed to be inappropriate by the school principal. On
April 19, 1999, the Respondent received a letter of reprimand for his actions during the incident. Although the Respondent noted that he did not agree with the reprimand, there was no appeal taken.
By September of 1999, the Respondent had transferred to Crystal Lake Middle School in Lakeland, Florida, where he taught math. During his first month there, the Respondent told a male student that the student looked and behaved like a girl. The student complained to Eileen Killebrew, the school’s principal, who wrote a letter of reprimand to the Respondent dated September 24, 1999, noting that middle school students are "very emotional and impressionable" and that they look to teachers for "guidance and support." She warned the Respondent that his students "certainly do not expect to be demeaned in any way." She advised the Respondent that "further instances of inappropriate behavior will call for further disciplinary action." The Respondent received a copy of the letter and did not challenge the reprimand.
By November of 1999, a number of additional complaints against the Respondent had been received from students or parents. By letter dated November 2, 1999, the
principal advised the Respondent of the specific complaints (essentially a pattern of making disparaging or otherwise inappropriate remarks to students, to parents of students and to other teachers) and asked that he submit a written response to the allegations.
The Respondent did not submit the requested response, but instead met with the principal to discuss the matter.
By letter of reprimand dated November 17, 1999, the principal again advised the Respondent that his behavior was unacceptable and warned that additional instances would result in further disciplinary action. The Respondent received a copy of the letter and no appeal of the reprimand was taken.
On February 8, 2000, the Respondent wrote a disciplinary referral for a student. On the referral, the Respondent wrote that he had told the student to "shut his redneck mouth up." Disciplinary referrals are commonly sent to the student’s parents.
On February 10, 2000, the principal issued another letter of reprimand to the Respondent, stating that she found it "reprehensible that you would resort to this kind of childish behavior when dealing with students." She further wrote that she had "serious concerns about your teaching effectiveness and indeed about your professional future unless
improvements are made." She again warned that further incidents could result in more severe disciplinary action.
In August of 2000, the principal received information regarding inappropriate statements made to a parent during a meeting of the parent and her female child with the school’s guidance counselor. The Respondent was not involved in the meeting but apparently walked into the room where the meeting was taking place. In discussing the incident, the principal also learned that the Respondent had previously used the female student to pass his phone number to a college student interning at the school and to whom the Respondent was attracted.
By letter dated August 23, 2000, the principal reprimanded the Respondent for his behavior and warned further inappropriate behavior would result in her requesting that he be suspended from teaching.
In September of 2000, the Respondent was involved in two separate events. In one incident, the Respondent made inappropriate remarks to a student about the child’s mother. The child told the mother, who came to the school and complained to the principal. In the other incident, a teacher at the school reported an incident where the Respondent pushed or struck a child on the forehead.
By letter dated September 22, 2000, the principal advised the Respondent of the complaints and scheduled a conference with him to discuss the situation. She advised that he could bring a representative to the conference.
The conference occurred on September 25, 2000. The Respondent attended the meeting and was accompanied by a representative from the Polk County Education Association. During the meeting, the Respondent acknowledged the incidents.
By letter to the Polk County School Superintendent dated September 25, 2000, the principal requested that "the next step in progressive discipline be taken" and that the Respondent be suspended without pay for five days from his teaching position.
By letter dated September 28, 2000, from the Polk County Superintendent of Schools, the Respondent was advised that he would be suspended without pay for five days beginning October 2, 2000. The suspension occurred as scheduled.
On or about May 16, 2001, the Respondent became involved in events with two students in separate classes.
In the first incident, students in the Respondent’s classroom were completing a math exercise which required coloring answers on a score sheet. The Respondent noticed that one of the students was incorrectly coloring the sheet and made a disparaging statement to the student about his
work, stating that if the instructions had been written in "clown" the student might have understood them. The Respondent and the student eventually engaged in a verbal altercation during which the Respondent used the word "stupid." The student understood the Respondent to say that the student was stupid. The Respondent asserts that he actually said the child was "acting stupid." In any case, the Respondent wrote a disciplinary referral on the student.
At the change of classes, the student told a close friend who was coming into the Respondent’s classroom about the disciplinary referral. The friend asked the Respondent about the referral and the Respondent declined to answer the question, instead suggesting that after school, the friend could ask his "boyfriend" about the incident. The friend concluded that the Respondent was suggesting that the children were homosexual.
The students complained to the principal about the Respondent’s statements. The principal asked the Respondent to respond to the allegations, which he did by written statement. Although the Respondent’s statement does not address use of the word "stupid" in reference to the first child, the statement acknowledges that he told the second student to get the information by asking his "boyfriend"
though he denied he had intended to imply homosexuality in his remark.
By letter to the Polk County School Superintendent dated May 18, 2001, the principal requested termination of the Respondent’s employment with the Polk County School System.
By letter from the Polk County School Superintendent dated May 21, 2001, the Respondent was notified that the Superintendent would recommend to the School Board that his employment be terminated. In the letter, the grounds for the termination are identified as the Respondent’s "continued unprofessional and inappropriate behavior with students including embarrassing and disparaging remarks."
By letter from the Polk County School Superintendent dated June 14, 2001, the Respondent was notified that the School Board had accepted the Superintendent’s recommendation that his employment would be suspended pending an administrative hearing.
Based on the continuing pattern of unprofessional behavior towards students, parents and other teachers, the Respondent’s effectiveness as a teacher has been diminished to the extent that the Crystal Lake Middle School principal does not want the Respondent to return as a teacher at her school.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of establishing facts sufficient to warrant termination of the Respondent’s employment. Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, the burden has been met.
The Petitioner proposes to terminate the Respondent’s employment due to "continued unprofessional and inappropriate behavior with students including embarrassing and disparaging remarks."
Section 231.36(6)(a), Florida Statutes, authorizes the dismissal of instructional personnel for "just cause." Section 231.36(1)(a), Florida Statutes, defines "just cause" as follows:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education:
misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
The Respondent’s pattern of unprofessional and inappropriate behavior constitutes misconduct in office.
Section 6B-4.009,(3) Florida Administrative Code, defines misconduct in office and provides as follows:
6B-4.009 Criteria for Suspension and Dismissal. The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
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(3) 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.
Section 6B-1.006, Florida Administrative Code, provides as follows:
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.
Obligation to the student requires that the individual:
Shall 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.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
The Respondent was clearly put on notice as early as September of 1999, that his students were "emotional and impressionable," and that students needed "guidance and support" from teachers. His pattern of inappropriate statements to students in the classroom fails to meet his obligation to students. Such statements are harmful to learning and to a child’s mental health, and intentionally expose students to embarrassment or disparagement.
Polk County School Board Policy 6GX53-3.005 addresses the issue of discipline or dismissal for "just cause" and defines such cause to include misconduct in office. Policy 6GX53-3.005, Section (I)(A)2. provides as follows:
A charge of Misconduct in Office is defined as conduct which seriously reduces the Employee’s effectiveness in the assigned position, or as an Employee of the Board.
The Respondent’s pattern of inappropriate statements made to students, to parents, and to other teachers have seriously reduced his effectiveness in his assigned position as a teacher at Crystal Lake Middle School.
Section 4.4 of the Collective Bargaining Agreement between the Polk County School Board and the Polk Education Association provides for a system of "progressive discipline" which is defined as follows:
Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: (1) verbal warning in a conference with the teacher (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference; (3) suspension without pay for up to five days by the Superintendent; and (4) termination.
The Petitioner has clearly met the progressive disciplinary procedures required by the collective bargaining agreement.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Polk County School Board enter a final order terminating the employment of Thomas D. Lindemann as a teacher at Crystal Lake Middle School.
DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida.
_______________________________ WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2001.
Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP
Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
James A. Robinson, General Counsel Department of Education
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.
