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BROWARD COUNTY SCHOOL BOARD vs KARLEEF JAMEL KEBREAU, 19-004176TTS (2019)

Court: Division of Administrative Hearings, Florida Number: 19-004176TTS Visitors: 11
Petitioner: BROWARD COUNTY SCHOOL BOARD
Respondent: KARLEEF JAMEL KEBREAU
Judges: MARY LI CREASY
Agency: County School Boards
Locations: Lauderdale Lakes, Florida
Filed: Aug. 06, 2019
Status: Closed
Recommended Order on Thursday, March 25, 2021.

Latest Update: Jul. 05, 2024
Summary: Whether just cause exists for Petitioner, Broward County School Board (“BCSB”), to suspend Respondent, Karleef Jamel Kebreau (“Respondent”), from his employment as a teacher for ten days without pay.A teacher's pattern of giving female student's unwanted hugs, making flirtatious remarks, and inappropriate comments warrants a ten-day suspension without pay, in light of his prior disciplinary history for similar conduct.
STATE OF FLORIDA

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


BROWARD COUNTY SCHOOL BOARD,


Petitioner,


vs.


KARLEEF JAMEL KEBREAU,


Respondent.

/


Case No. 19-4176TTS


*AMENDED AS TO PRELIMINARY STATEMENT PARAGRAPH 4 AND FINDINGS OF FACT PARAGRAPH 26


*AMENDED RECOMMENDED ORDER

Pursuant to notice, a final hearing in this case was conducted before Administrative Law Judge Mary Li Creasy of the Division of Administrative Hearings (“DOAH”) by Zoom video teleconference on October 13, 2020.

APPEARANCES

For Petitioner: Denise Marie Heekin, Esquire

Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 2200 Miami, Florida 33131


For Respondent: Melissa C. Mihok, Esquire

Melissa C. Mihok, P.A.

201 East Pine Street, Suite 445

Orlando, Florida 32801


STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner, Broward County School Board (“BCSB”), to suspend Respondent, Karleef Jamel Kebreau (“Respondent”), from his employment as a teacher for ten days without pay.


PRELIMINARY STATEMENT

On June 11, 2019, at its regularly scheduled meeting, Petitioner, BCSB, took action to suspend Respondent for one day without pay. BCSB rejected

the Superintendent’s recommendation of a one-day suspension. On July 23, 2019, BCSB approved the Superintendent’s recommendation to suspend Respondent for ten days without pay. Respondent was advised of his right to request an administrative hearing within 21 days. Respondent timely requested an administrative hearing. Subsequently, BCSB referred the matter to DOAH to assign an administrative law judge to conduct the final hearing. The final hearing initially was set for October 10 and 11, 2019. After multiple continuances, granted at the request of the parties, this case was set for hearing on October 13, 2020.


On December 5, 2019, BCSB moved to amend the Administrative Complaint. The motion was granted over objection on December 18, 2019.


In the Amended Administrative Complaint (“Amended Complaint”), BCSB charged Respondent with misconduct in office pursuant to section 1012.33, Florida Statutes, and Florida Administrative Code Rule 6A-5.056(2)(a)-(e), a failure to make a reasonable effort to protect the students from conditions harmful to learning, and/or mental or physical health or safety, in violation of Florida Administrative Code Rule 6A-10.081; incompetency, in violation of section 1012.33 and rule 6A-5.056(3)(a); violation of School Board Policy 4008, which requires instructional staff members to comply with the Code of Ethics and the Principles of Professional Conduct and to conform to all rules and regulations that have been prescribed by the Department of Education or BCSB; and violation of School Board Policy 4.9 (“Policy 4.9”), which requires employees to comply with workplace policies, procedures, and regulations, local, state, and federal laws; and State Board Rules, both in and out of the workplace. These charges were based upon allegations that Respondent made inappropriate comments to female students and gave students inappropriate hugs.

At the final hearing, BCSB presented the testimony of the following: John Murray, Assistant Principal at Miramar High School (“Miramar”); Maria Formoso, Principal at Miramar; and Detective Bernard Canellas. By agreement of the parties, BCSB submitted the deposition transcripts of S.N., L.M., S.K., and T.K., in lieu of live testimony. BCSB Exhibits 4, 5, 7, 8, and 10 through 21 were admitted into evidence. Respondent testified on his own behalf and Respondent’s Exhibits 1 through 4 were admitted. The record was held open after the final hearing to allow BCSB to depose two student witnesses who had not previously appeared for their scheduled depositions.

BCSB filed the deposition transcripts of D.J. on November 30, 2020, and C.G. on December 1, 2020.


The Transcript was filed on October 29, 2020. Respondent filed two unopposed motions for extension of time to file proposed recommended orders, which were granted. Both parties timely filed proposed recommended orders, which were considered in drafting this Recommended Order. Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged violations.


FINDINGS OF FACT

The Parties

  1. BCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida.

  2. Respondent was employed by BCSB as a math teacher at Miramar. Respondent has taught for BCSB for 17 years. Respondent is working pursuant to a professional services contract.

    Respondent’s Prior Discipline and Summary Memoranda

  3. On or about December 14, 2011, Respondent received a Letter of Reprimand from BCSB and was required to attend Equal Employment

    Opportunity (“EEO”) Overview Training for inappropriate conduct concerning his violation of both the Code of Ethics and Principles of Professional Conduct of the Education Profession.

  4. Respondent received this Letter of Reprimand because of an investigation into inappropriate conduct regarding allegations that he repeatedly approached students to take modeling photos of them in their bikinis. The investigation also concerned allegations that Respondent was watching movies with female students in his classroom after school hours.

  5. On or about November 28, 2012, Respondent received a Summary Memo addressing the following concerns: his failure to attend mandatory proctor training; his failure to pick up interim reports; his failure to follow proper procedures; his failure to notify a student that he had her iPod; his intentional use of embarrassing and disparaging remarks to a student by calling her a “shone” (slang for prostitute) in class; and his lack of professional judgment and integrity.

  6. On or about May 14, 2015, Respondent received a Summary Memo addressing the following concerns: his use of embarrassing and disparaging remarks to a student and his lack of professional judgment and integrity. He received this Summary Memo after an email from a concerned parent was received by Miramar administration concerning Respondent’s behavior. The email referred to Respondent participating in making a list of the prettiest to the ugliest girl in his class and calling a student stupid. Respondent denies that he created the list, but admits that he knew about the list, that he should have addressed the issue to end it, and further that he commented on it.

    Allegations Giving Rise to the Suspension

  7. On October 11, 2018, Miramar Principal Maria D. Formoso (“Formoso”) received an email from someone who identified himself as “Captain Alex.” Captain Alex wrote that his girlfriend was a student at Miramar, and that he was in fear for her safety while she was in Respondent’s class. Attached to his

    email, Captain Alex provided copies of cell phone text messages between him and his girlfriend describing how Respondent had approached her and began hugging and touching her hair. Captain Alex’s email also indicated that this was happening to other female students at Miramar.

  8. Formoso advised John Murray, Assistant Principal (“AP Murray”), who helped identify Captain Alex’s girlfriend as C.G.

  9. C.G., who was in 12th grade during the 2018-2019 school year, advised Formoso, that on October 11, 2018, she was “face-timing” with her boyfriend on her cell phone, prior to the start of class, and as she entered Respondent’s classroom, Respondent walked up to her and gave her a full-frontal hug. As Respondent was hugging her, he was also manipulating her hair on the back of her head without her consent.

  10. C.G. stated that Respondent regularly gave her unwanted hugs and that the hugs made her feel uncomfortable. He also gave her compliments, played with her hair, and rubbed her shoulders. According to C.G., since the beginning of the school year (i.e., 2018-2019), she has received several unwanted hugs from Respondent prior to entering his classroom. C.G. stated that the hugs would last 30 seconds and that Respondent would play with her hair as well as rub her shoulders. During one of the hugging incidents, Respondent whispered into her ear “[y]ou give thick a whole other meaning.” Statements from Other Students

  11. After obtaining C.G.’s statement, Formoso interviewed and obtained statements from other female students identified by C.G. to have also received unsolicited hugs from Respondent. Those students were identified as S.N., N.O., and D.J. After obtaining these additional statements, Formoso contacted the BCSB Special Investigative Unit (“SIU”) to initiate an investigation.

  12. Detective Bernard Canellas of SIU arrived at Miramar to conduct an investigation concerning Respondent’s conduct. As part of the investigation, he obtained several handwritten statements and conducted recorded

    interviews under penalty of perjury. After the investigation was completed, Respondent was given a copy of the report of the investigation and was advised that BCSB will move forward to bring the investigative findings to the Professional Standards Committee.

  13. Detective Canellas obtained a written statement and sworn recorded statement of S.N. S.N. also provided testimony at a deposition, which the parties agreed to submit in lieu of an appearance at the final hearing. According to S.N., who was an 11th grade student during the 2018-2019 school year, Respondent was her math teacher during her freshman year.

    S.N. testified during her deposition that during her first encounter with Respondent, he approached her and gave her an unwanted hug as she entered his classroom. On one occasion during her freshman year, as Respondent proceeded to hug her, he whispered in her ear “[h]ow would you feel if I told you I wanted to be your boyfriend.” S.N. said the statement made her feel weird and creeped out.

  14. S.N. stated that Respondent continued to give her unwanted hugs over the next three years, but he never made any more statements to her while hugging her. S.N. testified at her deposition that she has been approached and teased by her girlfriends about the hugs she received from Respondent.

  15. S.N. also testified that one day while Respondent was hugging her, his hand brushed against her breast as he pulled away. When this happened, she told Respondent, “I don’t want you hugging me anymore.” Respondent neither responded to her nor did he try to hug her again.

  16. D.J. provided a written statement and sworn recorded statement to SIU. She also provided deposition testimony, which the parties agreed to submit in lieu of an appearance at the final hearing. D.J. was a student in Respondent’s class during the 2017-2018 school year. D.J. stated that Respondent asks for hugs from the female students. She testified that one day when he asked her for a hug, D.J. told him no. Respondent admitted in his deposition testimony that D.J. told him not to hug her. Thereafter, D.J.

    testified that Respondent negatively affected her grades. D.J. also testified that Respondent has hugged her more than 30 times.

  17. In September 2019, two more students, L.M. and T.K., came forward to AP Murray with similar allegations against Respondent. These students came forward when AP Murray was handing out letters to students in Respondent’s class to obtain their contact information in the event they were witnesses for the instant matter. Their allegations were included in the Amended Complaint.

  18. L.M. was a student in Respondent’s geometry class. She provided a written statement to AP Murray and testified at a deposition which the parties agreed to be used in lieu of her appearance at the final hearing. She testified that Respondent was too “touchy” and personal with students. Respondent would flirt with female students and make them uncomfortable. She also testified Respondent would hug the female students as they walked into class and call them “cutie” or “sweetie.” L.M. found Respondent’s behavior annoying and disappointing.

  19. T.K. also testified that one day during the 2018-2019 school year, when she was in his class, Respondent called her up to his desk and asked her about her dating status. T.K. responded that she was single. Respondent told her that there were male students in the class eyeing her. T.K. responded that she was not interested in guys her age. Respondent then asked T.K. if she liked guys in their fifties or his age. This made T.K. feel uncomfortable.

  20. T.K. also testified that, on another occasion in his class, he talked about his grey sweat pants. Respondent told the class that a woman he had been dating told him that she did not want him wearing grey sweat pants, but he did not know why. Respondent stated that all the girls at the mall were staring at him in his grey sweat pants. Respondent said that when he looked in the mirror, his “junk” looked huge. When he said this to the class, he pointed at his pelvic area. T.K. alleges that it is disturbing that a teacher

    feels comfortable enough to tell the students in his class, who range in age from 14 to 18, this story.

    Respondent’s Response to the Allegations

  21. S.M. gave a sworn recorded statement to SIU. She also provided deposition testimony, which the parties agreed to submit in lieu of an appearance at the final hearing. S.M., who was a 12th grade student in the 2018-2019 school year, was also never a student of Respondent’s, but she started getting unwanted hugs from Respondent at the beginning of her junior year. S.M. would receive unwanted hugs from Respondent while in the hallway. S.M. testified during her deposition that Respondent would call her “[m]y Haitian Queen” and that the hugs made her feel uncomfortable. S.M. also testified that one day while Respondent was hugging her, his hand brushed against her breast as he pulled away. When this happened, she told Respondent, “I don’t want you hugging me anymore.” Respondent did not respond to her, nor did he try to hug her again.

  22. Respondent admits that he would stand in the doorway to the classroom and give students, including females, hugs as they entered. Respondent claims this is consistent with the behavior of other teachers at Miramar. When asked not to hug a particular student, Respondent immediately stopped. Respondent denies making inappropriate or flirtatious comments to students, touching their hair, or propositioning any female student.

  23. Respondent specifically denied ever hugging C.G. in an inappropriate manner or touching her hair. He first became aware of the allegation when notified by the School Board’s investigator. Respondent further denied complimenting C.G. inappropriately, or ever rubbing her shoulders.

  24. At the time of the allegation, C.G. was failing Respondent’s class and transferred to a different class soon after. Respondent noted that student D.J. also failed his class and transferred to another class.

  25. Respondent offered and filed the deposition transcript of K.S., which the parties agreed to be used in lieu of testimony at the final hearing. K.S. testified that she was in Respondent’s class in 9th grade and that she was now in the 12th grade. She testified that Respondent hugs everyone, including her, in either a full-frontal hug or side hug at the entry way of the classroom if Respondent was holding the door. She witnessed Respondent hug T.M.

  26. The Amended Administrative Complaint makes reference to similar allegations allegedly made by students N.O, S.M., B.S., and T.M. However, they did not testify in this matter and the only evidence presented related to them is uncorroborated hearsay.1

  27. Respondent testified he no longer hugs his students since these allegations arose. Some students have tried to hug him and were confused when Respondent declined. He now shakes their hand or gives them a “dab.” BCSB Response to the Investigation

  28. Based on the SIU investigation, the Professional Standards Committee found probable cause to recommend a one-day suspension without pay and EEO sensitivity training for Respondent. This was later changed to a ten-day suspension without pay by BCSB, which was also adopted on July 10, 2019. Formoso testified that BCSB increased the one-day suspension to a ten- day suspension because Respondent’s conduct amounted to sexual harassment.

  29. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements from the time the investigation was commenced through BCSB’s adoption of the



    1 Although the statements of these students contain descriptions of Respondent providing unwanted hugs and making inappropriate flirtatious comments to other female students, they were not relied upon for the decision of this Recommended Order. The deposition testimony of the other students was credible and enough to prove the allegations against Respondent in the Amended Complaint.

    Superintendent’s recommendation for a ten-day suspension in relation to this matter.


    CONCLUSIONS OF LAW

  30. DOAH has jurisdiction over the parties to and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes.

  31. Because BCSB, acting through the Superintendent, seeks to suspend Respondent’s employment without pay for ten days, which does not involve the loss of a license or certification, BCSB has the burden of proving the allegations in its Amended Complaint by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill v. Pinellas Cty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990).

  32. Respondent is an instructional employee as defined in section 1012.01(2). BCSB has the authority to terminate instructional personnel for “just cause” pursuant to section 1012.33(1)(a).

  33. Section 1012.33(1)(a) provides a non-exhaustive definition of “just cause.” Section 1012.33(1)(a) states, in pertinent part:

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, ... gross insubordination, willful neglect of duty … .


  34. Respondent’s prior acts of misconduct may be considered in determining the existence of just cause for discipline. C.F. Industries, Inc. v. Long, 364 So. 2d 864 (Fla. 2nd DCA 1978); Johnson v. Sch. Bd. of Dade Cty., 578 So. 2d 387 (Fla. 3rd DCA 1991).

    Misconduct in Office

  35. Rule 6A-5.056(2) defines “misconduct in office” to include one or more of the following:


    1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;


    2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.;


    3. A violation of the adopted school board rules;


    4. Behavior that disrupts the student’s learning environment; or


    5. Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.


  36. Respondent’s conduct constitutes misconduct in office because it met subsections (b) and (d) of the definition of misconduct.

  37. The ethical principles previously contained in rule 6A-10.080, Code of Ethics of the Education Profession in Florida, are now contained in subsection (1) of rule 6A-10.081, Principles of Professional Conduct for the Education Profession in Florida.

  38. Rule 6A-10.081(2) states that a violation of any of the following disciplinary principles “shall” subject the individual to revocation, suspension, or other penalties:


    1. Obligation to the student requires that the individual: 1. Shall make reasonable effort to protect the student from conditions harmful to

      learning and/or the student’s mental and/or physical health and/or safety.


      * * *


      5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.


      * * *


      7. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, … handicap condition, … or social and family background and shall make reasonable effort to assure each student is protected from harassment or discrimination.


  39. Respondent engaged in misconduct in office by failing to protect his students from conditions harmful to learning and protecting his student’s mental health by actively and continuously embarrassing them. Fla. Admin. Code R. 6A-10.081(2)(a)1. and 5. Respondent repeatedly failed to protect his students from conditions harmful to learning and embarrassed them when he repeatedly engaged in hugging his female students. Respondent regularly gave unwanted hugs and hugs that made his students feel uncomfortable. He also gave sexually charged compliments while engaging in embraces with female students. Respondent talked about his grey sweat pants that made his “junk” look huge. When he said this to the class, he pointed at his pelvic area. This, among other conduct described above, constitutes creating a condition harmful to the students’ learning and behavior that disrupts the students’ learning environment.

  40. Respondent also engaged in misconduct in office by harassing and discriminating against his students on the basis of sex, and failing to make reasonable effort to assure each student is protected from harassment or discrimination. Fla. Admin. Code R. 6A-10.081(2)(a)7. The conduct described in the preceding paragraph constitutes harassment. Respondent gave

    unwanted and unsolicited hugs to female students, which created a hostile environment for them. Respondent flirted with female students. His students felt uncomfortable and embarrassed due to his conduct.

  41. BCSB has shown by a preponderance of the evidence that Respondent engaged in misconduct in office as defined in rule 6A-5.056(2)(b) and (d), and, therefore, there is just cause to suspend Respondent’s employment for ten days without pay. See § 1012.33(1)(a), Fla. Stat.

    Incompetency

  42. Rule 6A-5.056(3)(a) defines “incompetency” as “the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.” “Inefficiency,” in pertinent part, means “[f]ailure to perform duties as prescribed by law.” Fla. Admin. Code R. 6A-5.056(3)(a)1.

  43. “Inefficiency” means one or more of the following:


    1. Failure to perform duties as prescribed by law. Fla. Admin. Code R. 6A-5.056(3)(a).


    2. Failure to communicate appropriately with and relate to students.


  44. Respondent’s conduct constitutes incompetency due to inefficiency because he failed to communicate appropriately with and relate to students. Respondent failed to communicate appropriately with his students by giving his female students unsolicited frontal hugs. Respondent also failed to communicate appropriately when he whispered “[y]ou give thick a whole other meaning” in a student’s ear while hugging her and whispered “[h]ow would you feel if I told you I wanted to be your boyfriend” in another student’s ear while hugging her. Respondent failed to communicate appropriately when he called a student “[m]y Haitian Queen.” Respondent failed to communicate appropriately when he inquired about the dating status of a student and asked if that student liked guys in their fifties or his age. Lastly, Respondent failed to communicate appropriately when he

    referred to the size of his anatomy in grey sweatpants and referred to his anatomy as “junk.”

  45. BCSB has shown by a preponderance of the evidence that Respondent’s behavior constituted incompetency due to inefficiency, as defined in rule 6A-5.056(3)(a)1., and constitutes just cause for suspension from his employment for ten days without pay.

    Violation of Adopted School Board Rules

  46. Rule 6A-5.056(2)(c) defines “misconduct in office” to include “[a] violation of the adopted school board rules” and makes it clear that a local school board, through its adopted rules, has the authority to define conduct that constitutes just cause for reprimand of an employee. Respondent has violated adopted school board rules, which constitutes just cause for a ten-day suspension without pay.

  47. BCSB rules relevant here are School Board Policy 4008(B) (“Policy 4008(B)”) and Policy 4.9.

  48. Policy 4008(B) sets forth the duties of instructional personnel. These duties state that instructional personnel shall:


    1. Comply with the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida.


    * * *


    3. Infuse in the classroom, the District’s adopted Character Education Traits of Respect, Honesty, Kindness, Self-Control, Tolerance, Cooperation, Responsibility and Citizenship.


    * * *


    8. Conform to all rules and regulations that maybe prescribed by the State Board and by the School Board.

  49. As described above, Respondent’s conduct did not comply with the Principles of Professional Conduct for the Education Profession in Florida. Respondent’s conduct was not in compliance with the Code of Ethics or the Principles of Professional Conduct. Respondent’s unwelcomed touching and commentary did not infuse in the classroom respect, self-control, or responsibility for some of his female students. As such, Respondent’s conduct did not conform to the rules of the State Board or BCSB.

  50. BCSB has shown by a preponderance of the evidence that Respondent’s behavior was misconduct in office, as defined in

    rule 6A-5.056(2)(c) and was a violation of the BCSB’s adopted policies. As such, BCSB has established just cause for suspension of Respondent’s employment for ten days without pay.

    Policy 4.9 and the Appropriate Discipline

  51. BCSB’s decision to suspend Respondent is in accordance with School Board Policy 4.9, Corrective Action. Policy 4.9 prescribes the type of discipline appropriate to be imposed for specified offenses. Policy 4.9 identifies categories of offenses and the appropriate type or range of discipline that may be imposed if the employee is shown to have engaged in conduct constituting that offense.

  52. Policy 4.9, section II, provides, in relevant part, that the following are “Category B” offenses, for which the recommended range of discipline is “Reprimand/Dismissal”:

    g) Inappropriate method of discipline


    m) Any violation of The Code of Ethics of the Education Professional in the State of Florida-State Board of Education Administrative Rule


    p) Insubordination, which is defined as a continuing or intentional failure to obey a direct order, reasonable in nature and given by and with proper authority

    r) Failure to comply with School Board policy, state law, or appropriate contractual agreements


  53. Policy 4.9, section I(d), provides that, in most cases, BCSB follows a policy of progressive discipline. The level of corrective action in a given case will be determined by the severity of misconduct and the considerations listed in section III(c). “A more severe corrective measure will be used when there is evidence that students, employees, or the community we serve was negatively impacted.” Id.

  54. Policy 4.9, section III, titled “Other Considerations,” subsection (c), sets forth circumstances that are “illustrative and not meant to be exhaustive and may be considered when determining the appropriate penalty within a penalty (II Category B) range.” The factors relevant here include:


    1. The severity of the offense;


    2. Degree of student involvement;


    3. Impact on students, educational process and/or community;


    4. The number of repetitions of the offenses and length of time between offenses;


    1. Employment history;


    2. The actual damage, physical or otherwise, caused by the misconduct;


    3. The deterrent effect of the discipline imposed;


    4. Any effort of rehabilitation by the employee;


    5. The actual knowledge of the employee pertaining to the misconduct;


    6. Attempts by the employee to correct or stop the misconduct;

    7. Related misconduct by the employee in other employment including findings of guilt or innocence, discipline imposed, and discipline served;


    8. Actual negligence of the employee pertaining to any misconduct;


    15. Degree of physical and mental harm to a student, co-worker or member of the public;


    1. Whether the misconduct was motivated by unlawful discrimination;


    2. Any relevant mitigating or aggravating factors under the circumstance.


  55. Here, the factors warranting a ten-day suspension include the severity and number of the offenses; the impact of Respondent’s conduct on students; the educational process and/or community; Respondent’s prior discipline; Respondent’s knowledge pertaining to his misconduct; the need for a sufficient deterrent effect; the degree of mental harm to students; and Respondent’s failure to take adequate steps to correct his prior misconduct.

  56. It is undisputed that Respondent has been previously disciplined in relation to using embarrassing and disparaging remarks towards female students (i.e., referring to one as a “shone”) and for requesting to take pictures of female students in bikinis.

  57. At best, Respondent’s pattern of conduct towards female students can be described as crass, flirtatious, and inappropriate. At worst, it constitutes unlawful sexual harassment and potential battery. There is no place for this type of conduct by an educator and BCSB was well within its discretion, and its progressive discipline policy, to recommend a ten-day suspension for Respondent’s conduct that put both the students and BCSB at significant risk.

  58. BCSB met its burden and established by a preponderance of the evidence that Respondent committed each of the violations charged. Respondent’s violations constitute just cause for suspension under Policy 4.9.


RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a Final Order upholding Respondent’s suspension for ten days without pay.


DONE AND ENTERED this 25th day of March, 2021, in Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us


Filed with the Clerk of the

Division of Administrative Hearings this 25th day of March, 2021.

COPIES FURNISHED:


Denise Marie Heekin, Esquire Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 2200 Miami, Florida 33131


Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 2200 Miami, Florida 33131


Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street

Tallahassee, Florida 32399-0400


Robert W. Runcie, Superintendent Broward County Public Schools 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

Melissa C. Mihok, Esquire Melissa C. Mihok, P.A.

201 East Pine Street, Suite 445

Orlando, Florida 32801


Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A.

One Southeast Third Avenue, Suite 2200 Miami, Florida 33131


Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400


NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 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.


Docket for Case No: 19-004176TTS
Issue Date Proceedings
May 24, 2021 Joint Waver of 90-Day Requirement filed.
Mar. 30, 2021 Notice of Appearance (Andrew Carrabis) filed.
Mar. 25, 2021 Amended Recommended Order (hearing held October 13, 2020). CASE CLOSED.
Mar. 25, 2021 Amended Recommended Order cover letter identifying the hearing record referred to the Agency.
Mar. 25, 2021 Motion to Correct Recommended Order filed.
Mar. 15, 2021 Recommended Order (hearing held October 13, 2020). CASE CLOSED.
Mar. 15, 2021 Recommended Order cover letter identifying the hearing record referred to the Agency.
Feb. 17, 2021 Respondent's Proposed Recommended Order filed.
Feb. 17, 2021 Petitioner's Proposed Recommended Order filed.
Feb. 12, 2021 Order Granting Extension of Time.
Feb. 11, 2021 Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
Jan. 26, 2021 Order Granting Extension of Time.
Jan. 25, 2021 Unopposed Motion for Extension of Time to File Proposed Recommended Orders filed.
Dec. 10, 2020 Order Granting Joint Motion to Establish Deadline to File Proposed Recommended Orders and Closing the Record.
Dec. 10, 2020 Joint Motion to Establish Deadline to File Proposed Recommended Orders filed.
Dec. 01, 2020 Petitioner's Notice of Filing Transcript of Deposition (Chanel Gordon) filed.
Nov. 30, 2020 Petitioner's Notice of Filing Transcript of Deposition (D. J.) filed.
Nov. 18, 2020 Cross Notice of Taking Deposition filed.
Nov. 18, 2020 Petitioner's Notice of Taking Deposition (Chanel Gordon) filed.
Nov. 09, 2020 Notice of Filing Deposition Transcript (S.K.) filed.
Nov. 06, 2020 Order Denying Respondent's Motion to Prohibit Additional Testimony/Evidence.
Nov. 03, 2020 Petitioner's Response to Respondent's Notice of Objection to Holding the Record Open more than Thirty Days after Final Hearing and Motion to Prohibit Additional Testimony/Evidence filed.
Oct. 29, 2020 Respondent's Notice of Objection to Holding the Record Open More than Thirty Days after Final Hearing and Motion to Prohibit Additional Testimony/Evidence filed.
Oct. 29, 2020 Cross Notice of Taking Deposition (Jeancharles) filed.
Oct. 29, 2020 Petitioner's Notice of Filing Petition to Enforce Compliance with Subpoenas in Circuit Court filed.
Oct. 29, 2020 Notice of Filing Transcript.
Oct. 29, 2020 Petitioner's Notice of Filing Transcript of the Final Hearing filed.
Oct. 29, 2020 Petitioner's Notice of Taking Deposition (Jeancharles) filed.
Oct. 16, 2020 Petitioner's Notice of Filing Transcripts of Depositions filed.
Oct. 14, 2020 Petitioner's Notice of Filing Transcripts of Depositions filed.
Oct. 14, 2020 Petitioner's Additional Proposed Exhibit filed (exhibits not available for viewing).
Oct. 13, 2020 CASE STATUS: Hearing Held.
Oct. 13, 2020 Petitioner's Notice of Filing Additional Exhibit filed.
Oct. 12, 2020 Notice of Filing Objections to Respondent's Exhibit List filed.
Oct. 09, 2020 Petitioner's Notice of Taking Deposition (Dejah Jeancharles) filed.
Oct. 09, 2020 Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Oct. 08, 2020 Notice of Filing Respondent's Objections to Petitioner's Hearing Exhibits filed.
Oct. 08, 2020 Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
Oct. 07, 2020 Joint Pre-Hearing Stipulation filed.
Oct. 07, 2020 Notice of Filing Petitioner's Exhibit List with Proposed Exhibits filed.
Oct. 06, 2020 Notice of Taking Deposition (Kristina Servance) filed.
Oct. 02, 2020 Order Granting Extension of Time.
Oct. 02, 2020 Joint Motion for Extension of Time to File Pre-Hearing Stipulation filed.
Oct. 01, 2020 Amended Notice of Hearing by Zoom Conference (hearing set for October 13 and 14, 2020; 9:00 a.m., Eastern Time; Lauderdale Lakes; amended as to Zoom Conference ).
Oct. 01, 2020 Order Granting Motion to Hold Hearing By Zoom and Use Deposition Testimony in Lieu of Live Testimony.
Sep. 30, 2020 Notice of Cancellation of Depositions filed.
Sep. 28, 2020 Petitioner's Cross-Notice of Taking Depositions filed.
Sep. 28, 2020 Joint Motion to Hold Hearing via Zoom and Use Deposition Testimony in Lieu of Live Testimony filed.
Sep. 23, 2020 Cross Notice of Taking Depositions filed.
Sep. 22, 2020 Amended Notice of Taking Depositions filed.
Sep. 22, 2020 Notice of Taking Depositions filed.
Aug. 13, 2020 Notice of Appearance (Elizabeth Neiberger) filed.
May 21, 2020 Order Granting Continuance and Rescheduling Hearing by Video Teleconference (hearing set for October 13 and 14, 2020; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
May 14, 2020 Joint Motion for Continuance filed.
Mar. 05, 2020 Petitioner's Amended Notice of Taking Deposition of Respondent filed.
Mar. 04, 2020 Order Rescheduling Hearing (hearing set for June 10 and 11, 2020; 9:00 a.m.; Fort Lauderdale).
Mar. 02, 2020 Status Update filed.
Feb. 26, 2020 Notice of Unavailability filed.
Feb. 20, 2020 Order Granting Continuance (parties to advise status by March 2, 2020).
Feb. 20, 2020 Petitioner's Unopposed Motion for Continuance filed.
Jan. 22, 2020 Order on Motion to Compel and for Sanctions.
Jan. 10, 2020 Petitioner's Motion to Compel Deposition of Respondent and Motion for Sanctions for Failure to Appear at Deposition filed.
Dec. 18, 2019 Order Granting Petitioner's Motion for Leave to Amend Administrative Complaint.
Dec. 05, 2019 Petitioner's Motion for Leave to Amend Administrative Complaint filed.
Nov. 19, 2019 Petitioner's Amended Notice of Taking Deposition of Respondent filed.
Nov. 12, 2019 Petitioner's Notice of Service of Answers to Respondent's First Set of Interrogatories filed.
Nov. 08, 2019 Order Granting Continuance and Rescheduling Hearing (hearing set for March 3 and 4, 2020; 9:00 a.m.; Fort Lauderdale).
Nov. 04, 2019 Unopposed Motion for Continuance of Hearing filed.
Oct. 30, 2019 Petitioner's Amended Notice of Taking Deposition of Respondent filed.
Oct. 25, 2019 Petitioner's Notice of Taking Deposition of Respondent filed.
Oct. 16, 2019 Notice of Service filed.
Oct. 03, 2019 Notice of Service filed.
Sep. 24, 2019 Amended Notice of Hearing (hearing set for November 21 and 22, 2019; 9:00 a.m.; Fort Lauderdale, FL; amended as to location).
Sep. 03, 2019 Notice of Intent to Issue Subpoena filed.
Aug. 19, 2019 Notice of Email Designation filed.
Aug. 19, 2019 Order Granting Continuance and Rescheduling Hearing (hearing set for November 21 and 22, 2019; 9:00 a.m.; Fort Lauderdale, FL).
Aug. 16, 2019 Joint Motion for Continuance filed.
Aug. 16, 2019 Order of Pre-hearing Instructions.
Aug. 16, 2019 Notice of Hearing (hearing set for October 10 and 11, 2019; 9:00 a.m.; Fort Lauderdale, FL).
Aug. 14, 2019 Joint Response to Initial Order filed.
Aug. 12, 2019 Notice of Appearance (Ranjiv Sondhi) filed.
Aug. 07, 2019 Initial Order.
Aug. 06, 2019 Request for Evidentiary Hearing filed.
Aug. 06, 2019 Administrative Complaint filed.
Aug. 06, 2019 Agency action letter filed.
Aug. 06, 2019 Agenda Request Form filed.
Aug. 06, 2019 Referral Letter filed.

Orders for Case No: 19-004176TTS
Issue Date Document Summary
Mar. 25, 2021 Recommended Order
Mar. 15, 2021 Recommended Order A teacher's pattern of giving female student's unwanted hugs, making flirtatious remarks, and inappropriate comments warrants a ten-day suspension without pay, in light of his prior disciplinary history for similar conduct.
Source:  Florida - Division of Administrative Hearings

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