vs.
ROGER J. PHILLIPS,
Respondent.
) Case No. 02-1271
On May 15 and 16, 2002, a formal administrative hearing in this case was held by videoconference in Fort Myers, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: J. Paul Carland, II, Esquire
For Respondent: Robert J. Coleman, Esquire
Coleman & Coleman, P.A. 2300 McGregor Boulevard Post Office Box 2089
The issue in the case is whether there is just cause to terminate the employment of the Respondent.
By Petition for Termination of Employment dated March 12, 2002, the School Board of Lee County (Petitioner) notified Roger J. Phillips (Respondent) that the Petitioner intended to terminate the Respondent's employment as a teacher. The Respondent requested a formal administrative hearing to challenge the proposed termination. The Petitioner forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.
During the hearing, the Petitioner presented the testimony of nine witnesses and had exhibits numbered 1-11, 18-22, 25 (excluding page 111) and 26 admitted into evidence. The Respondent presented the testimony of four witnesses, testified on his own behalf, and had exhibits numbered 1-3 admitted into evidence. The Transcript of the hearing was filed on June 3, 2002. Both parties filed Proposed Recommended Orders on July 1, 2002, that were considered in the preparation of this Recommended Order.
At all times material to this case, the Respondent was a certified teacher, employed by the Petitioner under a professional services contract and working at the Lehigh Acres Middle School.
On or about February 6, 2002, the Respondent received two written reprimands from Gerald B. Demming, the school principal, related to the Respondent's behavior towards students.
The first written reprimand related to incidents occurring on January 17 and 22, 2002, during which the Respondent verbally disparaged students, calling them "sorry" and "no good" and advising them that they would be unsuccessful "in life."
The second written reprimand related to an incident on February 5, 2002, during which the Respondent apparently mocked a student in the classroom.
In meeting with the Respondent, Principal Demming clearly expressed his concern regarding the Respondent's behavior towards students, and advised that such actions were unacceptable and were viewed as violations of the Principles of Professional Conduct.
The Respondent signed and received copies of the written reprimands.
The written reprimands were not the first time such concerns had been addressed with the Respondent. During the 2000-2001 school year, Mary Ann Moats, then employed as the Lehigh Acres Middle School principal, had verbally expressed concerns of a similar nature, specifically the use of derogatory
language directed towards students (such as "stupid," "no good," and "ignorant").
Students became so unhappy with the Respondent's behavior that, on one day, an entire classroom of students walked out of the Respondent's class and walked to Principal Moats' office to express their dismay with his treatment of them. She attempted to resolve the dispute and urged the Respondent to modify his behavior.
During Ms. Moats' employment as principal, the Respondent's behavior toward students continued to be of concern. Complaints were received from students, parents, and from other faculty members. She met more than once with the Respondent to discuss matters raised by the complaints. A written memo dated December 5, 2000, specifically related to allegations of verbal abuse directed towards students was provided to and signed by the Respondent.
Further, such concerns were identified in paragraphs 5-7 of the Respondent's 2000-2001 performance evaluation dated April 9, 2001, where he received "Below
Expectations/Unsatisfactory" marks in several areas including:
Human Development and Learning: Uses an understanding of learning and human development to provide a positive learning environment which increases student achievement and supports the intellectual, personal and social development of all students.
Learning Environment for Student Achievement: Creates and maintains a positive learning environment which fosters active engagement in learning, social interaction, cooperative learning and self motivation and manages student behavior; and
Communication for Student Achievement and Parental Satisfaction: Uses effective communication techniques with students, parents (i.e., one-to-one telephone calls, conferences, newsletters, etc.), and all other stakeholders.
Despite the clearly expressed concerns related to the Respondent's behavior towards students, the behaviors generally continued during the 2001-2002 school year, and culminated on February 13, 2002, in two specific events that resulted in the Petitioner's decision to terminate the Respondent's employment.
During the 2001-2002 school year, the Respondent was assigned to teach a seventh grade class during the first period.
K.R. was a student in the Respondent's first period class, and generally was an "A" or "B" student.
On February 13, 2002, K.R. returned to the Respondent's first period class after more than a week of absence related to a family vacation. Prior to going on vacation, K.R. had obtained one week of advance class assignments in order to maintain her school work while on vacation, but the vacation apparently extended beyond what was originally planned.
During the time for which K.R. had not obtained class assignments, the Respondent directed the students to prepare speeches related to Black History Month. The speech assignment was written on the chalkboard, as was the Respondent's usual practice, but had not been assigned at the time K.R. left for vacation.
After class started, K.R. began to repeatedly question the Respondent about the assignment and went so far as to interrupt other students as they presented their speeches. The Respondent told K.R. to "shut up," called her "ignorant," and directed K.R. to go to a table at the rear of the classroom, remarking to the other students in the class that they did not want to be like K.R. Thereafter K.R. sat in the back of the classroom and cried.
When class ended, the Respondent required K.R. to remain in his classroom while he called her mother and reported the behavior to her. K.R. spoke briefly to her mother during the call, but otherwise remained in the classroom, during which time other students began to enter for the second period class.
When K.R. arrived at her second period class, she was still upset and her teacher sent her to the office to speak to a school official, at which time, concern related to the Respondent's behavior was apparently heightened.
During the 2001-2002 school year, the Respondent also taught a seventh grade class during the sixth period. M.C. and
J.A. were students in the Respondent's sixth period class.
At the beginning of the period, M.C. was standing near the Respondent's computer located close to his desk. Attempting to quiet the class, he instructed the students to take their seats and settle. Standing behind M.C., he placed his hands on her shoulders and gently pushed her towards her chair, leaning down to tell her that when he told the class to sit down he intended for her to be seated as well.
M.C. testified that when the Respondent told her to take her seat, the Respondent kissed the back of her neck. The Respondent denies kissing the student. The evidence related to the alleged kiss is not persuasive.
The Respondent asserts that at the time of the alleged kiss, he was advising M.C. that she was part of the class and his instruction to the class to settle was applicable to her.
M.C.'s testimony related to the Respondent's statement corroborates the Respondent's recollection and indicates that she understood that he was including her in his instruction to the class to settle.
Of the students who were in the classroom at the time and who testified at the hearing, only one student testified that she saw the alleged kiss. Although she testified that she
saw the kiss occur, her recollection of what the Respondent said to M.C. at the time of the alleged kiss is completely different from the statement claimed by the Respondent and corroborated by M.C.'s recollection.
Other students in the classroom who testified did not recall seeing the Respondent kiss M.C. Although there is no evidence suggesting that such a kiss would have been typical of the Respondent's interaction with a student, no student recalled any type of noise or verbalization from the other students at the time of the alleged kiss.
There was some evidence presented indicating that M.C.'s hairstyle on that day would have made it difficult to kiss her neck without having moved her hair, and suggesting that in leaning down to speak to M.C., the Respondent spoke closely enough to cause her hair to brush her neck. M.C.'s recollection of what hairstyle she wore on that day was uncertain.
In any event, M.C. believed she was kissed and was unhappy about it. She eventually requested and received a bathroom pass from the Respondent, but after leaving the classroom, she went directly to the school administration office and reported the incident.
After speaking to M.C., school personnel called the Respondent on the classroom telephone and asked him to send another student, J.A., to the office for early dismissal.
After arriving at the office, J.A. was asked whether she had witnessed the incident. At that time, she was apparently advised not to discuss the matter with anyone else.
While in the office, M.C. asked J.A. to return to the Respondent's classroom and to retrieve M.C.'s belongings.
J.A. was permitted by assistant principal to return to the Respondent's classroom and to retrieve M.C.'s possessions. A teacher who had been in the office, Kevin Richter, escorted
J.A. through the school on her way back to the Respondent's classroom. Mr. Richter then returned to his classroom.
After arriving back at the Respondent's classroom,
J.A. entered and began to collect M.C.'s belongings. The Respondent asked J.A. to tell him what she was doing. Believing she had been instructed not to discuss what she was doing, she did not respond to him, but finished collecting the items after which she walked out of the classroom and into the hallway.
The Respondent followed J.A. into the hallway, and began yelling at her for being "disrespectful." J.A. began yelling back, telling the Respondent she was doing what she was asked to do.
Apparently the confrontation between the Respondent and J.A. continued for a period of time and at sufficient volume as to attract the attention of a student affairs specialist in the office across the hallway as well as Mr. Richter, who by
that time was two hallways removed from the scene. Mr. Richter, hearing the commotion and assuming that some students were preparing to fight, ran to the commotion and realized that the yelling was coming from the Respondent and a student. At that point, Mr. Richter went to the school office and summoned Principal Demming.
After the yelling had subsided, the principal contacted the school district's personnel office and requested an investigation of the day's events. The investigation ensued and eventually resulted in the Petitioner's decision to terminate the Respondent's employment.
The Respondent asserts that he was not sufficiently placed on notice of the behavioral issues to suggest that termination of employment is warranted. The evidence establishes that the Respondent received notice sufficient to comply with the School Board's NEAT process (Notice of deficiencies, Expectations, Assistance, and Time to improve).
The Respondent asserts that the students were disrespectful and presented disciplinary problems. The Respondent had a classroom telephone and other means of communicating with school officials if a disciplinary situation became unmanageable. There is no credible evidence that any of the students addressed in this Recommended Order presented disciplinary problems that could not be managed through the
normal policies and practices of the school, including referrals to school officials.
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 School Board has the burden of establishing the allegations of the case by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). In this case, the burden has been met.
As an instructor working under a professional services contract, the Respondent's employment can be terminated at any time for "just cause." Section 231.36(6)(a), Florida Statutes. 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. Section 231.36(1)(a), Florida Statutes.
Rule 6B-4.009, Florida Administrative Code, sets forth the criteria for suspension and dismissal applicable to this case and provides in relevant part 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, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.001, Florida Administrative Code, sets forth the Florida Code of Ethics of the Education Profession and provides as follows:
6B-1.001 Code of Ethics of the Education Profession in Florida.
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of
other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. (Emphasis supplied).
Rule 6B-1.006, Florida Administrative Code sets forth the "Principles of Professional Conduct for the Education Profession in Florida" and provides in relevant part 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. (Emphasis supplied).
The Respondent has failed to make a reasonable effort to protect his students from conditions harmful to learning, and exposed the students to unnecessary embarrassment or disparagement. His behavior towards his students, his classroom
demeanor, and his use of derogatory terms toward students (including "stupid," "ignorant," and "no good") constitute a violation of the Principles of Professional Conduct.
As to the incident involving K.R. on February 13, 2002, the Respondent exposed K.R. to unnecessary embarrassment or disparagement by his use of the word "ignorant" and his statement to other students in the first period classroom that they did not want to be like her. The Respondent's behavior constitutes a violation of the Principles of Professional Conduct.
As to the incident involving J.A. on February 13, 2002, the Respondent failed to make a reasonable effort to protect J.A. from conditions harmful to learning or to the student's mental or physical health or safety. The Respondent could have called the office and reported what J.A. was doing, but instead chose to follow the child into the hallway and initiate an extended and heated confrontation with her. The Respondent's behavior constitutes a violation of the Principles of Professional Conduct.
As provided in the cited rule, such violations provide "just cause" for termination of his employment as a teacher at Lehigh Acres Middle School.
The Petitioner also asserts in its Proposed Recommended Order that, based on the alleged kiss, the
Respondent is also guilty of immorality as defined at Rule 6B- 4009(2), Florida Administrative Code. Based on the lack of credible evidence related to the alleged kiss, as set forth in the preceding Findings of Fact, the evidence fails to establish that the Respondent is guilty of immorality.
RECOMMENDED that the School Board of Lee County enter a Final Order terminating the employment of Roger J. Phillips.
DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida.
_____ WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2002.
J. Paul Carland, II
Robert J. Coleman, Esquire Coleman & Coleman, P.A.
Dr. John W. Sanders, Superintendent Lee County School Board
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.
