vs.
Respondent.
Case No. 16-3897PL
This case was heard on October 18, 2016, and December 15, 2016, by video teleconference at locations in Tallahassee and Daytona Beach, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Respondent: Branden M. Vicari, Esquire
Herdman & Sakellarides, P.A. Suite 110
29605 U.S. Highway 19 North
Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a)
and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
On December 3, 2015, the Commissioner of Education executed an Administrative Complaint against Respondent which alleged, in part, that, “[f]rom in or around August 13, 2013 through November 20, 2013, Respondent behaved in a manner that created a work environment that caused K.P., a female colleague, to fear for the safety of herself and her family. Furthermore, as a result of Respondent’s conduct, K.P. requested to have her position transferred. Respondent’s behavior includes making several sexually-inappropriate comments, racially-inappropriate comments, and threatening comments to or around K.P.”
On December 21, 2015, Respondent timely filed an election of rights by which he requested a formal hearing. On July 13, 2016, the matter was referred to the Division of Administrative Hearings for an evidentiary hearing.
The hearing was scheduled for September 6, 2016. Upon motion, and for good cause shown, the hearing was continued until October 18, 2016.
On October 10, 2016, the parties filed their Joint Statement of Stipulated Facts, which contained two stipulations of fact, both of which are adopted and incorporated herein.
The final hearing was convened on October 18, 2016, as scheduled. At the final hearing, Petitioner presented the testimony of Kimberly Pollok, an exceptional student education (ESE) teacher at Holly Hill School; George Edwards, an ESE teacher at Holly Hill School; Ericka (Christian) Burnam-Hoyt, who was at all times relevant to this proceeding a sixth-grade reading teacher at Holly Hill School; Jay Strother, who was at all times relevant to this proceeding the ESE Assistant Principal at Holly Hill School; Tami Fisher, Principal of Holly Hill School; and Sandy Hovis, Director of Professional Standards for the Volusia County School District. Petitioner’s Composite Exhibit 1, and Petitioner’s Exhibits 2 through 4 and 7 through 9 were received into evidence. Petitioner’s Composite Exhibit 1 is a series of contemporaneous written statements submitted to school officials by Ms. Pollok. Though they are hearsay, they may be used for the purpose of supplementing or explaining other evidence, including Ms. Pollok’s testimony. § 120.57(1)(c), Fla. Stat.
In his case-in-chief, Respondent testified on his own behalf, and presented the testimony of Steven Allen, who has been a teacher and head football coach at several schools, including DeLand Middle School and Warner Christian Academy. Respondent offered no exhibits.
At the conclusion of the hearing on October 18, 2016, the record was held open to allow Respondent to file the deposition testimony of Ramon Anderson, who was at all times relevant to this proceeding, the supervisor for the computer remedial program at Holly Hill School.
A one-volume Transcript of the October 18, 2016, proceeding was filed on November 1, 2016. Mr. Anderson’s deposition testimony was filed on December 5, 2016. Mr. Anderson’s deposition transcript has been accepted in lieu of live testimony, and has been given the evidentiary weight as if he offered his testimony at the final hearing.
The hearing was thereafter reconvened on December 15, 2016, to allow Petitioner to present Ms. Pollok, Mr. Edwards, and
Mr. Hovis in rebuttal to Mr. Anderson’s testimony. A one-volume Transcript of the December 15, 2016, proceeding was filed on December 28, 2016, whereupon the record was closed.
Both parties timely filed Proposed Recommended Orders which have been duly considered by the undersigned in the preparation of this Recommended Order.
The actions that form the basis for the Administrative Complaint occurred from August 13, 2013, through November 20, 2013. This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d
441 (Fla. 5th DCA 2013). Accordingly, all references to the Florida Statutes or the Florida Administrative Code are to their 2013 versions, unless otherwise specified.
The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016).
Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct.
§ 1012.796(6), Fla. Stat. (2016).
Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school.
During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and
refrigerator, and had bathrooms that continued to be used on occasion by other teachers.
Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary.
At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent.
The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom.
Racial Comments
Over the period of time in question, Respondent made numerous statements of a racial nature.
While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by
Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name.
Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/
Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.”
Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested.
Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed,
rightfully, that the comments made Ms. Pollok uncomfortable as
well.
There was no evidence that any student’s learning
ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health.
Sexual Comments
Over the period of time in question, Respondent repeatedly made statements of a sexual nature.
On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started.
When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions.
Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted.
Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment.
On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.”
On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.”
Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.”
When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis.
Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing.
Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular,
Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect.
Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in
several instances, conflicted with the more credible testimony of other witnesses.2/
Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments.
Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers.
Threatening Comments
The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].”
As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening.
When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare.
Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response
Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including
Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013,
Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.”
On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the
ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable.
Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints,
Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect.
On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints.
Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of
professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016).
Standards
Section 1012.795(1), which establishes the violations that subject the holder of an educator certificate to disciplinary sanctions, provides, in pertinent part, that:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby
denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
* * *
(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Rule 6A-10.081(3)(a) provides that:
Obligation to the student requires that the individual:
(a) 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.
Rule 6A-10.081(5)(d) provides that:
(5) Obligation to the profession of education requires that the individual:
* * *
(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; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
Burden and Standard of Proof
Petitioner bears the burden of proving the specific allegations of wrongdoing that support the charges alleged in the Administrative Complaint by clear and convincing evidence before disciplinary action may be taken against the professional license of a teacher. Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); § 120.57(1)(j), Fla. Stat.; see also Dep’t
of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern
and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987); Pou v. Dep’t of Ins. and Treasurer,
707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof
[E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the
facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with
approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
“Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
Section 1012.795 is penal in nature and must be strictly construed, with any ambiguity construed against Petitioner. Penal statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden the application of such statutes. Latham v.
Fla. Comm’n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997); see also Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100 (Fla.
1st DCA 2008); Dyer v. Dep’t of Ins. & Treas., 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
The allegations set forth in the Administrative Complaint are those upon which this proceeding is predicated. Trevisani v. Dep’t of Health, 908 So. 2d 1108, 1109 (Fla. 1st
DCA 2005); see also Cottrill v. Dep’t of Ins., 685 So. 2d 1371,
1372 (Fla. 1st DCA 1996). Due process prohibits the imposition of disciplinary sanctions based on matters not specifically alleged in the notice of charges. See Pilla v. Sch. Bd. of Dade
Cnty., 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995); Texton v.
Hancock, 359 So. 2d 895, 897 n.2 (Fla. 1st DCA 1978); see also
Sternberg v. Dep't of Prof'l Reg., 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985) (“For the hearing officer and the Board to have then found Dr. Sternberg guilty of an offense with which he was not charged was to deny him due process.”). Thus, the scope of this proceeding is properly restricted to those issues of fact and law as framed by Petitioner. M.H. v. Dep’t of Child. & Fam. Servs., 977 So. 2d 755, 763 (Fla. 2d DCA 2008).
As leaders and role models in the community, teachers are held to a high moral standard. Adams v. Prof'l Practices
Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).
Administrative Complaint
Count 1 - Section 1012.795(1)(j)
Count 1 of the Administrative Complaint charged Respondent with violating section 1012.795(1)(j) by having violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education Rules. Thus, Count 1 does not constitute an independent
violation, but rather is dependent upon a corresponding violation of the rules constituting the Principles of Professional Conduct.
Count 2 - Rule 6A-10.081(3)(a)
Count 2 of the Administrative Complaint charged Respondent with violating rule 6A-10.081(3)(a) by failing to make reasonable effort to protect his students from conditions harmful to learning, to their mental or physical health, or to their safety.
The evidence in this case demonstrates that Respondent routinely used terms generally regarded as derogatory in addressing African-American students. The comments continued even in the face of the efforts of other teachers to dissuade Respondent. There was no evidence to suggest that Respondent was overtly racist, or that any individual student was harmed by the statements. Nonetheless, the statements resulted in observable humiliation and embarrassment on the part of students.
Rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [a student’s] health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. vs. William Randall
Aydelott, Case No. 12-0621PL ¶ 76 (Fla. DOAH Aug. 29, 2012;
EPC Dec. 19, 2012).
Based on the findings of fact set forth herein, Respondent failed to make reasonable effort to protect the students of Holly Hill School from conditions harmful to learning or to their mental well-being in violation of rule 6A-10.081(3)(a).
Count 3 - Rule 6A-10.081(5)(d)
Count 3 of the Administrative Complaint charged Respondent with violating rule 6A-10.081(5)(d) by engaging in harassment or discriminatory conduct which created a hostile, intimidating, abusive, offensive, or oppressive work environment.
Sexual Comments
With regard to comments of a sexual nature, the evidence in this case demonstrates that Respondent routinely made sexually-charged comments in the office shared with
Ms. Pollok and Mr. Edwards. Some sexual comments were directed at Ms. Pollok, and others either expressed his delight at peering down the blouse of another teacher, or his desire to have sex with other teachers and administrators. The comments were inappropriate, were not welcome, and continued even in the face of requests by other teachers, including Mr. Edwards, that he “tone it down.”
Based on the findings of fact set forth herein, Respondent engaged in sexual harassment and conduct which created a hostile, abusive, offensive, or oppressive work environment in violation of rule 6A-10.081(5)(d).
Threatening Comments
With regard to comments of a threatening nature, the evidence in this case does not demonstrate, clearly and convincingly, that Respondent’s discussion of his previous life as a police officer was objectively threatening or intimidating.
With regard to comments about persons who may have been complainants regarding his in-school conduct, Respondent’s statement, though they may have been intemperate, were nothing more than idle expressions of frustration upon learning that he was being investigated for the events described herein. There was no evidence that they were to be taken seriously.
Based on the findings of fact set forth herein, Petitioner failed to prove that Respondent engaged in threatening conduct that unreasonably interfered with Ms. Pollok’s performance of professional or work responsibilities or that created a hostile, intimidating,
abusive, offensive, or oppressive work environment in violation of rule 6A-10.081(5)(d).
Penalty
Florida Administrative Code Rule 6B-11.007(2) establishes the range of penalties for violations of various statutory and regulatory provisions as follows:
(2) The following disciplinary guidelines shall apply to violations of the below listed statutory and rule violations and to the described actions which may be basis for determining violations of particular statutory or rule provisions. Each of the following disciplinary guidelines shall be interpreted to include “probation,” “Recovery Network Program,” “letter of reprimand,” “restrict scope of practice,” “fine,” and “administrative fees and/or costs” with applicable terms thereof as additional penalty provisions. The terms “suspension” and “revocation” shall mean any length of suspension or revocation, including permanent revocation, permitted by statute, and shall include a comparable period of denial of an application for an educator’s certificate.
Section 1012.795(1)(j) is not one of the specific statutory provisions listed in the penalty guidelines. Rather, it is incorporated in rule 6B-11.007(2)(j), as among the “[o]ther violations of Section 1012.795, F.S.,” with a guideline penalty of “Probation – Revocation or such penalty as is required by statute.”
Rule 6B-11.007(2)(i)16. lists a guideline penalty of “Probation – Revocation” for “[f]ailure to protect or supervise students” in violation of rule 6A-10.081(3)(a).3/
Rule 6B-11.007(2)(i)11. lists a guideline penalty of “Reprimand – Revocation” for “[h]arassment or discrimination which interferes with an individual’s performance or work” in violation of rule 6A-10.081(5)(d).
Rule 6B-11.007(3) establishes aggravating and mitigating factors to be applied to penalties calculated under the guidelines. There are few of note. The facts of this case demonstrate that the offenses described were repetitive, thus constituting an aggravating factor. Mitigating factors include that Respondent had never before, and has not since, been subject to discipline by the Commission; and the lack of evidence that there was any actual harm to any student.
Petitioner, in its Proposed Recommended Order, has suggested an appropriate penalty of a two-year suspension of Respondent’s educator’s certificate, followed by two years of probation. It is important, in considering the severity of the penalty, that the most troubling of the allegations in the Administrative Complaint, i.e., that Respondent was threatening Ms. Pollok, or taking actions that could reasonably cause her to fear for her safety, were not proven. Furthermore, though Respondent’s use of the terms “nappy” and “Bebe’s kids” directed at African-American students was proven, the more inflammatory terms alleged, including “black ass,” were not.
Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case.
DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2017.
1/ The record was unclear as to whether Ms. Pollok’s observations of the students’ reactions occurred after they heard Respondent call them nappy, or call them Bebe’s kids. Nonetheless, her testimony, combined with that of other teachers as described herein, was sufficient to support a finding that students were made to feel uncomfortable in the face of Respondent’s statements.
2/ In one specific instance, Mr. Anderson testified that
Ms. Burnam-Hoyt told him that she believed Ms. Pollok “orchestrated” the whole investigation because Ms. Pollok was overweight and therefore vindictive “that none of the compl[i]mentary comments made about women were directed towards her.” The statement was pure hearsay. Ms. Burnam-Hoyt had no recollection of any such conversation with Mr. Anderson.
Furthermore, there was nothing in Ms. Burnam-Hoyt’s testimony or demeanor to suggest that she would hold or express such a view.
The metaphorical tone-deafness of Mr. Anderson’s comment is astonishing. To which “complimentary” comments was Mr. Anderson referring? Was he suggesting that Ms. Pollok “orchestrated” disciplinary action because Respondent did not “compliment” her by looking down her blouse to see her boobs; that she was angered that Respondent failed to “compliment” her by wanting her to be his consuela; or that she was vengeful because Respondent did not “compliment” her by desiring to mount her? That statement, combined with the general attitude -- shared with Respondent -- that his comments were just joking around and saying “stuff that’s funny” demonstrates a general lack of respect and decorum that is not tolerated in the workplace. It, furthermore, is evidence of an effort to minimize the damaging effects of uninvited and unwanted “guy talk,” on unwilling targets, and is not accepted by the undersigned.
3/ Rule 6A-10.081 was transferred from Florida Administrative Code Rule 6B-1.006 on January 11, 2013. As will be discussed herein, the penalty guidelines rule continues to cite to rule 6B-1.006 in setting penalty ranges. Rules 6A-10.081(3)(a) and (5)(d) are substantively identical to the last iteration of rules 6B- 1.006(3)(a) and (5)(d). Since the facts alleged, and the text of the rule allegedly violated, were clear for Counts 2 and 3, and since there is no evidence that Respondent was misled or harmed by the citation in the penalty guidelines to a rule that is no longer in effect as numbered, the penalty guidelines in rules 6B- 11.007(2)(i)16. and 6B-11.007(2)(i)11. shall be applied, respectively, to the violations of rule 6A-10.081(3)(a) and (5)(d).
Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110
29605 U.S. Highway 19 North
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
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.
