THE STATE OF FLORIDA THE SCHOOL BOARD OF MONROE COUNTY, FLORIDA MARK T. PORTER, Superintendent of Schools, Case No. Petitioner, Vv. DENNIS WHALEY, Nd Respondent. Ot) ADMINISTRATIVE COMPLAINT Petitioner, MARK T. PORTER, Superintendent of Schools of Monroe County, Florida, files this Administrative Complaint against DENNIS WHALEY (“Respondent”). Petitioner seeks suspension of Respondent pursuant to Sections 1001.51, 1012.27(5), and 1012.33, Florida Statutes, Rule 6A-5.056 F.A.C, and Policies of the School District of Monroe County, Florida. In support herein, the Petitioner states as follows: JURISDICTIONAL BASIS 1. The agency is The School Board of Monroe County, Florida, located at 241 Trumbo Road, Key West, Florida 33040. 2. The Petitioner, MARK T. PORTER, is the Superintendent of Schools of Monroe County, Florida. His address is 241 Trumbo Road, Key West, Florida 33040. 3. The Petitioner, pursuant to §1012.27, Florida Statutes, has the authority to recommend to the School Board any school employee be suspended and/or dismissed from employment. 4. The Respondent, DENNIS WHALEY, has been employed with the District since July 2002. He is currently assigned as a math teacher at Key West High School. 5. Respondent is an “instructional personnel” as defined by §1012.01, Florida Statutes. His employment is governed by the collective bargaining agreement (“CBA”) between the School District of Monroe County, Florida and United Teachers of Monroe (“UTM”). Article V of the CBA provides that an employee may be disciplined, including termination for just cause. Under Article III, the School District of Monroe County, Florida reserves sole discretion to take disciplinary action against employees pursuant to its policies. 6. The Division of Administrative Hearings (“DOAH”), has contractual jurisdiction over the parties and the subject matter of this Petition as the Respondent has requested a hearing on this matter pursuant to the CBA, Appendix A, Section 4, which provides that an employee may request a hearing before the School Board or the Division of Administrative Hearings and School Board Policy 4140 which refers to the procedure within the CBA. 7. The last known address of the Respondent, DENNIS WHALEY, is 912 Pohalski Street, Key West, FL 33040. ADMINISTRATIVE CHARGES Petitioner, MARK T. PORTER, re-alleges the above and states as follows: 2 8. Atall times pertinent hereto, the Respondent was employed as a teacher in the Monroe County School District. 9. During the 2016-2017 School Year the District Administration received complaints from students and parents regarding statements and actions by Respondent involving retaliatory behavior, sexual harassment, suspicious behavior and fraudulent test reporting. 10. On June 2, 2017, Dr. Ramon Dawkins, the District’s Director of Human Resources and the District’s Compliance Officer found that certain allegations were founded, including harassment, including sexual harassment, demeaning and/or insulting remarks towards students and creating a hostile learning environment in which students were intimidated and fearful. 11. | The dishonest behavior was based upon a list of students the Respondent submitted to the Assistant Principal alleging that various students had cheated on the test. Respondent made the accusations in the absence of proof. 12. Harassment, including sexual harassment, creating a hostile learning environment and/or making insulting remarks towards student, includes, but is not limited to the following: a. Calling male students by a female name. b. Referring to a female student by her ex-boyfriend’s name. c. Referring to a female student as stupid. d. Favoring male students over female students, including allowing male students to perform extra-credit while not allowing female students the same benefit. e. Referring to another student by the name “Cam”, which the Respondent indicated was the name of his dead wife. f. Referring to student’s parents as failures for having a mortgage and/or car payment. g. Telling the class that a female student’s behavior was the same as his dog’s behavior. Then telling the student to “sit” as if he was giving directions to a dog. 13. School Board Policy 5517 — Anti-harassment, prohibits conduct by all employees and students of the District that is viewed as bullying or harassing, as set forth in the policy. 14. | The statements to students involved teasing, threats, intimidation, public humiliation and were often sexual, religious or racial in nature. 15. | Statements and actions by Respondent involved a pattern of conduct, which while subtle in nature, had sexual overtones and was intended to create discomfort and/or humiliation to others. 16. The actions and statements of Respondent were in violation of School Board Policy 5517. 17. School Board Policy 3200 — Ethical and Responsible Conduct — requires instructional personnel to treat others with fairness, honesty, kindness and respect. Further, 4 the policy requires employees to always be concerned for the safety of the student and for the development of the student’s potential, as well as maintaining respect and confidence of students, parents and other members of the community. 18. Respondent’s actions and statements are in violation of School Board Policy 3200. 19. School Board Policy 3140 — Suspension or Termination of Instructional Staff -— provides that the Superintendent may suspend an employee for “just cause”. 20. School Board Policy 3139.01 — Staff Discipline — also provides that the Superintendent has the responsibility to manage the work force and that discipline should be proportional to the employee’s misconduct. The District Compliance Officer’s report dated June 2, 2017, is attached to this petition as Exhibit “A” and incorporated herein by reference. 21. Based upon the recommendation of the District Compliance Officer, the Superintendent recommended that the Respondent be suspended for three (3) days. 22. Onor about June 5, 2017, the Superintendent sent Respondent a letter advising of his recommendation for suspension without pay (Exhibit “B”). 23. Respondent timely filed his request for a hearing to challenge the Superintendent’s finding of misconduct and suspension. The request is attached as Exhibit “Cc”, DEMAND FOR RELIEF 24. — Petitioner, MARK T. PORTER, Superintendent of Schools of Monroe County, Florida recommends that the School Board of Monroe County, Florida, after providing the requisite notice, suspend the Respondent, DENNIS WHALEY, for three (3) days. EXECUTED this_/4day of _ ua 2017. WI 7 file — T. PORTER uperintendent of Schools STATE OF FLORIDA _ ) ) SS: COUNTY OF MONROE. ) BEFORE ME, the undersigned authority, personally appeared, MARK T. PORTER, to be known to be the person described in the foregoing instrument; and he acknowledged that he executed the foregoing instrument for the purpose therein contained. WITNESS my hand and seal this 44° “day of wu 0 2017. Kaw tN ha claw NOTARY PUBLIC, STATE OF FLORIDA My Commission Expires: vat gc. Karen T Hiladik 2. NOTARY PUBLIC le STATE OF FLORIDA Neen Commi GG073815 MENS” Expires 2/24/2021 SLORIO, Hibsl View YG ouieua vaarou SPe eek AGRO] 30 ATATE S| tBETONTD Burd ? POSES eeriexs AF CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this document has been furnished via email to: Holly Hummell-Gorman, 1310 United Street, Suite 115, Key West, Florida 33040 (Email: holly.hummell-gorman@floridaea.or: and via U.S. Mail to: DENNIS WHALEY, P.O. Box 1891, Key West, Florida 33041 and by email to Branden Vicari, 29605 US Highway 19 N., Suite 110, Clearwater, FL 33761 (Email: branden@herdsaklaw.com) this 19th day of June, 2017. VERNIS & BOWLING OF THE FLORIDA KEYS, P.A. Attorney for Petitioner Islamorada Professional Center 81990 Overseas Highway, 3" Floor Islamorada, Florida 33036 Telephone (305) 664-4675 Telecopier (305) 664-5414 Primary Email: keysfiling@florida-law.com Secondary Email: tsimmons@florida-law.com (s/ Theron C. Simmons Theron C. Simmons, Esq. Florida Bar No.: 623385 EXHIBIT “A” Members of the Board District # 1 Bobby Highsmith Vice Chair MARK T. PORTER District # 2 Superintendent of Schools ANDY GRIFFITHS District # 3 Mindy Conn District #4 é . JOHN R. DICK To Excellence in the Monroe County Schools vial District # 5 RONALD A. MARTIN MEMORANDUM TO: Mark T. Porter, Superintendent, Monroe County School District FROM: Dr. Ramon M. Dawkins, Executive Director Human Resources, MCSD Q- DATE: June, 2017 SUBJECT: District Compliance Office - Matter of Compliance Filed: March 1, 2017 RE: Formal Investigation of Sexual Harassment Complaint Against Dennis Whaley, Teacher Recommended Findings of Fact and Appropriate Disciplinary Action Dear Mr. Porter, The District Compliance Officer has completed the investigation in response to the complaint of sexual harassment and other inappropriate’ behavior against Respondent, Dennis Whaley. This Department forwarded the complaint to him on April 18, 2017. More specifically, the initial complaint was made by Ms. DeMent, a concerned parent, who reported actions on Mr. Whaley’s part that, if true, would constitute a violation of: Professional Standards; the Code of Ethics; School Board Policy 3200: Ethical and Responsible Conduct, School Board Policy 5517: Anti-Harassment and School Board Policy 3140: Suspension or Termination of Instructional Staff. An instructional staff member who violates the aforementioned provisions is subject disciplinary action up to an including suspension or termination in accordance with School Board policy 3139.01, Florida State Statute 1012.23: School District Personnel Policies, and the applicable collective bargaining agreement. The matter at hand concerned allegations of retaliatory behavior, sexual harassment, and fraudulent test reporting, among other suspicious behaviors. Further, it was reported that Mr. Whaley used the assessment process to intimidate one or more students, made insulting references to one or more students during class, and falsely accused students from his class of "cheating" on an examination resulting in intimidation. Mr. Whaley was afforded an opportunity to address this matter prior to any investigation(s) during a Meeting for the Record held on April 21, 2017. The meeting was attended by Mr. Whaley and Mrs. Hummell-Gorman, his representative. Dr. Ramon M. Dawkins, Executive Director, Human Resources Monroe County School District 241 Trumbo Road - Key West, FL 33040 + Tel: (305) 293-1400 ext. 53330 » Fax: (305) 293-1429 www.KeysSchools.com Monroe County School District Page 2 of 5 The investigation by this office was performed in accordance with School Board policy 5517: Anti- Harassment and the collective bargaining agreement. Essentially, this policy states that the School Board will maintain an educational and work environment that is free from all forms of unlawful harassment, including sexual harassment. This commitment applies to all School District operations, programs, and activities. All students, administrators, teachers, staff, and all other school personnel share responsibility for avoiding, discouraging, and reporting any form of unlawful harassment. In addition, the policy applies to unlawful conduct occurring on school property, or at another location if such conduct occurs during an activity sponsored by the Board. The investigation concerned conduct occurring on school board property during the instructional day. The School Board is empowered to enforce prohibitions against discriminatory harassment on the basis of race, color, national origin, sex (including sexual orientation or transgender identity), disability (including HIV, AIDS, or sickle cell trait), marital status, age (except as authorized by law), religion, military status, ancestry, or genetic information which are classes protected by State and/or Federal law (collectively, “protected classes") (hereinafter referred to as unlawful harassment), and encourages those within the School District community as well as third parties, who feel aggrieved to seek assistance to rectify such problems. Having received such a complaint, the Board was charged with investigating the allegation and in those cases where substantiated, the Board will take immediate steps to end the harassment, prevent its reoccurrence, and remedy its effects. Individuals who are found to have engaged in unlawful harassment are subject to appropriate disciplinary action. As according to policy 5517 Anti-Harassment, Sexual harassment includes unwelcomed conduct of a sexual nature when: I. Submission to such conduct is either implicitly or explicitly a term or condition of an individual's status in a class, educational program, or activity. 2. Submission or rejection of such conduct by an individual is used as the basis for educational decisions affecting such individual. 3. Such conduct has the purpose or effect of interfering with the individual's work or educational performance; of creating an intimidating, hostile, or offensive working, and/or learning environment; or of interfering with one's ability to participate in or benefit from a class or an educational program or activity. This may include: (a) any pattern of conduct, that while subtle in nature, has sexual overtones and is intended to create or has the effect of creating discomfort and/or humiliation to another; or (b) verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping that does not involve conduct of a sexual nature. School Board policy, as approved by the Schoo! Board, contains conditions governing staff complaints, discipline and due process procedures. More specifically, the policy outlines the steps to be taken during complaint receipt, respondent notice, investigations and delivery of findings. The information contained in said policy was reviewed prior to commencement of my investigation of the allegation of misconduct as filed herein. Evidence Gathered During Investigation I have concluded my investigation of the complaint. The following constitutes the Compliance Officer's written report summarizing the evidence gathered during the investigation and provides recommendations based on the evidence. The matter concerned allegations of retaliation, fraudulent reporting, intimidation, sexual harassment, use of insulting references to students and other suspicious behavior by Mr. Whaley. Further, it was reported Monroe County School District Page 3 of 5 that Mr. Whaley used the assessment process to intimidate one or more students and falsely reported that students from his AP Calculus class "cheated" on an examination resulting in intimidation. The following represents a summary of findings: I. v Unfounded - Regarding the allegation that Mr. Whaley used retaliatory behavior against a student for his having reported sexual harassment by Mr. Whaley for a prior act, the finding was not upheld following reviews of the complainant’s statement up to and including different treatment, grading and/or student participation during class, witness statements and reviews of class participation. Unfounded - Regarding the allegation suspicious behavior as a means of coercion with the students, the finding was not upheld following reviews of test, reviews of other assessments, classroom participation and witness statements. Founded - Regarding the allegation of fraudulent behavior, Mr. Whaley’s actions while not fraudulent according to the legal meaning of that term, were found to be misleading based on the receipt of a list of names of students provided to the Assistant Principal by Mr. Whaley that included the names of students alleged to have “cheated” during testing. Unfounded - Regarding the allegation that the assessments were used to intimidate a student(s), the finding was not upheld based on a review of all tests administered to students and an audit of the graded outcomes from all tests administered to all students in the same class setting. Founded - Regarding the allegation of sexual harassment exhibited by Mr. Whaley, the finding was upheld as explained in greater detail below. Founded - Regarding the allegation of insulting references made by Mr. Whaley to one or more students during class, the finding was upheld as explained in greater detail below. Founded - Regarding the allegation that Mr. Whaley reported that students from his AP Calculus class "cheated" on an examination resulting in intimidation. This matter while upheld was handled by, Teaching and Learning and Assessment and Accountability. Sufficient evidence exists to support the allegation that Mr. Whaley in the performance of duties as assigned, demonstrated inappropriate behavior with students and unbecoming professional conduct as would constitute a violation of the School Board Policies and Procedures including: Professional Standards; the Code of Ethics; Schoo! Board Policy 3200: Ethical and Responsible Conduct, School Board Policy 5517: Anti-Harassment, and School Board Policy 3140: Suspension or Termination of Instructional Staff. The evidence indicated the following observations: Students reported verbally and in writing that Mr. Whaley addressed them and others inappropriately, appeared to become angered when they asked questions, prompted fear by students and resulting in an intimidating and hostile environment leaving students afraid to ask questions during class. This action caused discourse and resulted in students’ refusal to participate during class even when they did not understand content and would have otherwise engaged the teacher through questioning. Students reported that they felt afraid and diminished. a. Student |: “He usually waits for a hand and then looks around the room and has a giddiness, like he will pick on them. He uses their names and lingers on their name. For a long time he would call me Daniella and the office warned him about this and it stopped. [ tried to get him to stop and once when passing out papers he referred to me as Daniella and when | would not respond or accept the paper | was being handed by Whaley. It was almost comical. So he [Whaley] hit the girl in front of me with the paper so she'd take it and pass it to me. She did...” b. Student 2: “Yes she is afraid and every time she asks a question she feels he’ll make her feel stupid and she has to think whether she wants to ask the question or if it is Monroe County School District Page 4 of 5 worth the risk of feeling stupid. He'll either say, “That’s for Mr. Whaley to find out” or “I taught this last year, Mr. Whaley should know this.” Student 3: “He can be intimidating and they feel threatened. Students get lost and he makes comments about saying something is algebra, meaning it’s basic. Whaley explains investments and says that our parents are financial failures if they have car or house payments. Students and parents are very offended. People are afraid to speak-up. He is very sarcastic; “throws shade.” Student 4: Definitely. Whaley will mess up a problem on the Board and teacher gets stressed out. Once a student asked a question while Whaley was showing a problem and Whaley punched through the wall behind him, because he was mad that he was interrupted while he wrote on the board. Students were scared, but it can be funny too. 2. Students reported observations and gave examples of Mr. Whaley having treated male athletes differently during class. Further, the students reported feeling discomforted describing Mr. Whaley’s actions as: a. Student 5: “favors the guys more because he'll talk to them more and joke with them. There are only 3 girls and “Student “X”” is smart and she'll ask a question and he won’t answer, the guys can ask the same question and he’ll answer and if she does [ask] he will get frustrated”, Student 6: “They [boys] get extra credit and the girls do not get the same privilege; He flirts with the guys by giving them names and with this weird smile and when he talks to the girls they feel they are despised.”, Student 7: “...and shows a serious preference to guys. And, he always asks them [boys] about their love life.”, Student 8: “He is like close with this one student who has his phone number, So the class goes through BC to get information from the teacher. Mr. Whaley sent BC a text that he (Whaley) was ill and should not have gone to the Saturday session and he’d be back the following day.” 3. Students reported observations and gave examples of Mr. Whaley having addressed students in ways that made them uncomfortable. This action caused discourse and resulted in students asking that Mr. Whaley not to address them in these ways. The students stated: a. Student 9: “Once when in class she was talking and she did not realize it had gotten silent, she stopped talking and just stared at the board, and the teacher [Whaley] said that when he comes home and his dog has been bad, it acts the exact same way, then he was laughing a lot. When she went to turn in her test she got up to go turn in the test and he said, “Sit K..., sit” as if he was giving directions to a dog. And he continued to laugh; the rest of the class was just laughing too.” - Student 10: “Calls B... [boy] Brenda, Last year called another D... [boy], Daniella... Can be emasculating at times.” Student [ 1: “When he does talk he talks about personal matters. He wanted to call her Cam because his dead wife had that name.” Student 12: “Depends. When passing out papers, he will use their names. Calls a gay student in the class, Danielle, but his name is D... Calls A..,, Anumerator but she doesn’t mind. Yes, D... [boy] being called Danielle {makes me uncomfortable]. And, Whaley hates tattoos. A... [a Muslim student] wears headwear and had henna tattoos and he made a comment to her.” Monroe County School District Page 5 of 5 e. Student I 1: “...or calls one boy Danny-Boy or calls another Daniella. She told him not to call her Cam and he stopped and she does not think he has ever really said her name. He goes off script in unscrupulous ways that are demeaning.” Disciplinary Recommendation Based Upon the Evidence As it concerns discipline, the decisive factor in this instance is whether or not sufficient evidence exists to support the allegation that Mr. Whaley in the performance of duties as assigned, demonstrated inappropriate behavior with a student (or students) and professional conduct unbecoming as would constitute a violation School Board policies. Summarily, findings indicated sufficient evidence exists to support the allegation that Mr. Whaley, while in the performance of duties, demonstrated inappropriate behavior. He asked students questions of a personal nature, referred to them in ways that made them and others feel uncomfortable and responded to them during class in ways that caused them to become fearful, feel harassed and/or become unresponsive during class. In doing so, Mr. Whaley demonstrated conduct unbecoming and violated schoo! board policies and procedures including: Professional Standards; the Code of Ethics; School Board Policy 3200: Ethical and Responsible Conduct, Schoo! Board Policy 5517: Anti-Harassment, and School Board Policy 3140: Suspension or Termination of Instructional Staff. Based on interviews with those affected, the MCSD Compliance Office finds sufficient evidence of wrong-doing. Thus, it may be the recommendation of the Compliance Officer that Mr. Whaley receive disciplinary action in response to these findings. Respectfully, Dr. Ramon M. Dawkins Executive Director, Human Resources Monroe County School District Ce: Superintendent Mark Porter School Board Attorney UTM President. Holly Hummell-Gorman Principal. Key West High School Personnel EXHIBIT “B” MARK T. PORTER Superintendent of Schools Members of the Board District # 1 Bobby Highsmith Vice Chair District # 2 ANDY GRIFFITHS District # 3 Mindy Conn JOHN R. DICK = EO !CHARTING naGOURSE District # 4 a To Excellence in the Monroe County Schools Dennis Whaley 912 Pohalski Street, Apartment B Key West, Florida 33040 Chair District #5 RONALD A. MARTIN June 5, 2017 RE: — Final Decision Adopting Compliance Officer’s Recommendations Formal Complaint of Sexual Harassment Against Dennis Whaley Dear Mr. Whaley, | have reviewed the evidence in the Compliance Officer’s written report attached hereto and hereby accept the recommendations expressed therein. In your meeting with the Compliance Officer earlier today, you were given an opportunity to provide a response in rebuttal to the factual findings in the attached written report. I find your response to be unpersuasive. The factual findings of the Compliance Officer were based on the preponderance of the evidence and the recommended disciplinary action is warranted based on the totality of circumstances. lt is my decision that the complaint of sexual harassment has been substantiated in part. You are hereby suspended for 3 days without pay effective Tuesday, June 6, through Wednesday, August 9, 2017. You will have 15 calendar days to request in writing a hearing on the matter of this suspension. If you do not request such a hearing, the right to the hearing will be waived. Ce: School Board Attorney UTM President, Holly Hummell-Gorman Principal, Key West High School Compliance Officer MCSD Department of Human Resources Sincerely, Z yt Za | Mark T. Porter Superintendent EXHIBIT “C”

Docket for Case No: 17-003562TTS