DIVISION OF ADMINNISTRATIVE HEARINGS SARASOTA COUNTY SCHOOL BOARD Petitioner vs. Case No. 18-6269-TTS JOHN UNGER Respondent ADMINISTRATIVE COMPLAINT COMES NOW, Todd Bowden as Superintendent of Sarasota County Schools hereby recommends the termination of employment of Respondent, John Unger (“Unger”) effective immediately upon approval by the Sarasota County School Board (‘Petitioner’) and as grounds the Petitioner hereby states as follows: FACTUAL ALLEGATIONS lis Unger has been employed with the School District of Sarasota County since approximately November 2002. 2; Unger is a teacher at Sarasota High School where he teaches Spanish. Unger was reassigned to the Petitioner’s administrative offices since January 7, 2019 pending his termination appeal. 3. Unger’s disciplinary history with Petitioner began on October 17, 2013, when he received a Memorandum of Instruction from Assistant Principal Jamie Massengale. Although Memorandums of Instruction are not disciplinary in nature, pursuant to the collective bargaining Filed January 25, 2019 2:42 PM Division of Administrative Hearings agreement, they are intended to bring to the employee’s attention certain guidelines and acceptable standards of conduct in response to an incident. 4, The Memorandum of Instruction issued October 17, 2013, addressed deficiencies on Unger’s part in lesson planning, differentiation of instruction to meet student needs, proper use of technology and parent concerns regarding relationships between the teacher and families in the community. 5; In February 11, 2014, Unger received another Memorandum of Instruction, this time from Jeff Hradek, then principal of Sarasota High. Issues had arisen concerning Unger’s discussions with students on the Sarasota High School campus. Unger was reminded of the Principles of Professional Conduct of the Education Profession in Florida which require teachers to make reasonable efforts to protect students from conditions harmful to the learning and/or to the student’s mental and/or physical health and/or safety and not to intentionally expose a student to unnecessary embarrassment or disparagement. 6. The next disciplinary incident occurred in March 2015. A Weingarten hearing occurred on March 19, 2015. Weingarten hearings are formal investigations instituted by the school which are fact finding in nature and which may result in disciplinary action. Questions are propounded in writing and along with any supporting documents are given to the employee in advance of the hearing. The employee is also entitled to have representation with them which can include the union if the employee is a member. 7. Unger was again under investigation for unprofessional behavior. Unger was alleged to tell a student “your sister left them under the bed last night”. In addition, Unger showed inappropriate YouTube videos to students. Unger also shared student classwork with those from another school. He also continued to have issues with his lesson plans, inappropriate use of electronics in the classroom and his overall mood around the students. 8. As a result of the Weingarten hearing, on March 31, 2015 Assistant Principal Becky Moyer of Sarasota High School issued a verbal reprimand to Unger concerning his professional behavior in the classroom, of showing inappropriate videos in the class, making inappropriate comments, and sharing student information with others. 9. Unger did not appeal this discipline. 10... The next disciplinary incident involving Unger occurred in April 2016. A Weingarten hearing was conducted on April 27, 2016. In attendance were Becky Moyer, Unger and Lynn Campbell. Unger was questioned regarding inappropriate and unprofessional comments in the classroom including use of the word “spanking the monkey”, reference to “midget porn”, showing of inappropriate political commentary videos and inappropriate references to U.S. political figures. Unger was also questioned concerning his classroom performance, including the lack of recorded assessments in his grade book and the revealing of confidential information about students to other students. 11. The school conducted an investigation of these allegations and took witness statements as well as having received correspondence from parents. 12. As a result of the investigation, on May 5, 2016, Unger was issued a written reprimand of Assistant Principal Becky Moyer of Sarasota High School for inappropriate and unprofessional comments in the classroom, use of irrelevant videos and discussions that portray Unger’s personal political views and the disclosure of confidential student information in the classroom. 13. Unger did not appeal this discipline. 14. The next disciplinary incident occurred in December 2017. The school had received student complaints regarding remarks and jokes Unger had made in his period 3, Spanish II class. Those references were to the “Pillsbury Dough Boy”, other fat references, gay references and retarded/ESE references. 15. A Weingarten meeting was conducted on December 12, 2017. Unger was questioned and provided answers regarding these allegations. The results of the Weingarten hearing reflected that Unger, in fact, admitted to having made these comments to the students in the classroom. These allegations were further corroborated with interviews of students who were eyewitnesses. 16. Asa result of the findings of the investigation and following the progressive disciplinary model utilized in the Instruction Collective Bargaining Agreement, Article XXV, David Jones, Principal of Sarasota High School, recommended that Unger be suspended without pay. Ls On December 12, 2017, Superintendent Todd Bowen issued a letter to Mr. Unger suspending him without pay for three duty days after having committed both gross insubordination and willful neglect of duty with regard to his behavior and comments in the classroom. 18. Unger filed a grievance on February 14, 2018, concerning the discipline issue by Dr. Bowden on December 12, 2017. In the grievance Unger disagreed with the charges of gross insubordination and willful neglect of duty based on the argument that he had heard others in the school district utilize similar terms in their classroom for which they were not disciplined. The grievance was denied by Roy Sprinkle, Executive Director, Human Resources and Labor Relations. Unger did not appeal the denial of his grievance at this level. As a result, Superintendent Todd Bowden recommended to suspend Unger without pay for three duty days and was imposed April 18-20, 2018. 19. Unger also filed a separate claim of age discrimination against Sarasota High School Principal David Jones at or about the same time as his grievance. Those allegations were investigated. The district found no evidence of discrimination against Unger based on his age. Unger was so notified of that decision on January 29, 2018, by Steve Canteese, Executive Director of High Schools. No appeal or grievance followed that decision. 20. ‘In April 2018, Sarasota High School received a complaint filed by another teacher concerning inappropriate comments made to her by Mr. Unger. A Weingarten hearing was conducted on May 21, 2018, to discuss the comments made by Unger to his colleague. The gist of the complaint was that the teacher had a substitute scheduled for her on April 16, 2018. When she returned to work the following day, Unger approached her in the parking lot making remarks about the female substitute’s youth, beauty, attire and general desirability ending with the comment, “Your male students would be happy if you were here less often.” 21. Unger did not deny these comments in the resulting Weingarten hearing. As a result, Principal David Jones issued a verbal reprimand to Unger May 29, 2018. Unger did not appeal. 22. In addition to the above discipline, Unger was placed upon a Performance Improvement Plan (“PIP”) beginning in the fall of 2016. The PIP was instituted as a result of Unger’s poor performance evaluations by the principal of Sarasota High School at the time was Jeff Hradek and his classroom behavior. Unger’s PIP contained improvement strategies to create a better culture of learning in his classroom, planning for success, instructing and assessing student achievement and communicating professional commitment. 23. Unger has been on this PIP continually up through his re-assignment in January 2019. He has made no improvement since being placed on the PIP. To the contrary, Unger’s evaluation “Classroom Teacher Pride Final Evaluations for the 2016-17 and 2017-18 year indicated Unger needs improvement and with the Pride’s total score each of those years of 30.58 and 32.33 out of 100, respectively. His midyear Pride total score for 2018-19 was similar at 30.33. There is no expectation that Unger will ever successfully complete the PIP in light of his deteriorating classroom behavior. 24. Unger’s disciplinary issues with the District continued into November 2018 when allegations were again made concerning Unger’s inappropriate behavior in classroom, including physical contact with students and additional inappropriate comments which included one comment made to a student “If there is ever a school shooter, I am going to buy you light up sneakers so he can see you.” Also having received a comment from a student, “That’s good so that when I’m banging your wife, it will be a disco party” without any disciplinary repercussions for the student. 25. At the Weingarten hearing Unger did not deny these events but only offered explanation. 26. Asa result of the investigation, Superintendent Todd Bowden while following progressive discipline recommended termination of Unger’s employment to the School Board. 27. Unger notified the Petitioner of his Request for an Administrative Hearing. VIOLATIONS 48. School Board Policy 6.37 provides among others that any suspension or dismissal shall be as prescribed by law in that no member of staff may be dismissed except by action of the School Board. By letter dated November 15, 2018, Superintendent Todd Bowden has recommended to the Board that Unger be terminated for willful neglect of duties and gross insubordination relating to failing to maintain professional conversations, discussed inappropriate topics and engaged in horse play in the classroom. A review of these facts reveals these incidents also constitute misconduct in office. Further, Unger’s classroom behavior and overall teaching performance reflect that he is also incompetent in failing to discharge the required duties of a teacher due to inefficiency. 49. The suspension or dismissal of Instructional Personnel as prescribed by law is found in Section 1012.33(6) Florida Statutes. The Section provides as follows: (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person svithont pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid. If the employee wishes to contest the charges, the employee must, within 15 days after receipt of the written notice, submit a written request for a hearing. 50. Just cause is further defined in Section 1012.33(1)(a) to include but not be limited to immorality, misconduct in office, incompetency, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude. 51. Under 6A-5.056 Criteria for Suspension and Dismissal (2) “Misconduct in Office” means one or more of the following: (a) A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.; (b) A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.; (c) A violation of the adopted school board rules; (d) Behavior that disrupts the student’s learning environment; or (e) Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties. 52. The Weingarten hearings and progressive discipline demonstrate just cause exists to terminate Unger’s employment for misconduct in office by violating the principles of professional Conduct for the Education Profession in Florida, 6A-10.081, Florida Administrative Code; Sarasota County School Board Policy 6.27, which expects all instructional staff members to adhere to these principles; behavior that disrupts students leaning environment and behavior that reduces the teachers ability to effectively perform duties. 53. | Under 6A-5.056 Criteria for Suspension and Dismissal (5) “Willful neglect of duty” means intentional or reckless failure to carry out required duties. 54. The Weingarten hearing and progressive discipline demonstrate Unger has intentionally refused to carry out his required duties in maintaining a professional relationship with students and his instructional skills to minimum educational standards. 55. Under 6A-5.056 Criteria for Suspension and Dismissal (3) “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. (a) “Inefficiency” means one or more of the following: 1. Failure to perform duties prescribed by law; 2. Failure to communicate appropriately with and relate to students; 3; Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents; 4. Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or 5: Excessive absences or tardiness. (b) “Incapacity” means one or more of the following: 1. Lack of emotional stability; 2: Lack of adequate physical ability; 3. Lack of general educational background; or 4. Lack of adequate command of his or her area of specialization. 56. | The Weingarten hearings and progressive discipline demonstrate conclusively that Unger is incompetent and that he has the inability and lacks fitness to discharge the required duty of an instructional personal within Petitioner’s district. His incompetency includes both inefficiency and failing to carry out his required duties; failure to communicate appropriately with his students; his failure to communicate appropriately with his colleagues and his, disorganization of his classroom, where by the health, safety and welfare of his students is diminished. Further, he lacks capacity in lacking both emotional stability and adequate command of his or her area of specialization. 57. Under 6a-5.056, Criteria for Suspension and Dismissal (4) “Gross Insubordination” means intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority; misfeasance, or malfeasance as to involve failure in the performance of the required duties. 58. | The Weingarten hearing and progressive discipline demonstrate that Unger has intentionally refused to obey direct orders, reasonable in nature, and given by principals at Sarasota High School with proper authority, constituting gross insubordination. His behavior involves both misfeasance and malfeasance in the failure to perform his required duties. WHEREFORE, based upon the foregoing there exists just cause to terminate the employment of John Unger. Petitioner requests a recommendation of termination and such further relief as this court deems appropriate. 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this +5 day of January, 2019 I electronically filed the foregoing document with the Division of Administrative Hearings electronic filing system and sent a true and correct copy via electronic mail to John Unger, 247 Avenida de la Isla, Nokomis, FL 34275. KIRK = PINKERTON, P.A. 240 South Pineapple Avenue 6" Floor Sarasota, Florida, 34236 (941)364-2400 (telephone) (941) 364-2404 (direct line) (941)364-2490 (facsimile) _fictit K See ROBERT K. ROBINSON, B.C.S. Florida Bar No. 0815081 Email: rrobinson@kirkpinkerton.com Secondary email: Imason@kirkpinkerton.com G:\DOCUMENTIRER\S\SARASOTA CO SCHOOL BOARD\Unger, John\Pleadings\Administrative Complaint-Final.docx 11

Docket for Case No: 18-006269TTS