Findings Of Fact This matter concerns an incident which took place at Brownsville Junior High School on August 16, 1984, during the last week of the summer school session. The incident involved a female victim and several male students. It is undisputed that a sexual assault on a female student did take place. The only question involved here is what part, if any, the respondent played in this incident. The sexual assault was initiated by another male student, John Felder. Essentially, Felder pulled the victim, Nettie Thomas, into room 101 at the school. That room contained a television set which also served as a computer monitor. After the victim was pulled into room 101, various attempts were made to remove her clothing and she was fondled and touched by several male students. At one point during the victim's struggles, she was forced down on the teacher's desk and was held on top of the desk by her arms. While on the desk, she was assaulted by a male student who laid on top of her and made motions which simulated the motions made during sexual intercourse. At times, someone held his hand over her mouth so that she could not cry out for help. Additionally, during the time the incident occurred the lights in the room were turned on and off on more than one occasion. The assault was stopped when the assistant principal walked up the hall to investigate the noises which were reported to be coming from room 101. The students involved in the assault fled the room. The assistant principal, Freddie Robinson, observed and identified five boys fleeing room 101. Specifically, he identified Darrien Byrd, John Felder, Anthony Dowdell, Richard Daniels, and Vernon Clark. The victim, Nettie Thomas, identified these same five, either in written or verbal statements made during the investigation of this incident. Nettie Thomas identified Anthony Dowdell as the student who turned the lights on and off. She also identified Dowdell as having touched her on the buttocks. Dowdell acknowledged that he was in room 101 when the sexual assault took place and that he had been in the room before the female victim was pulled into the room. Dowdell was in the room in violation of rules and he had no valid purpose for being in the room. He was watching TV when he should have been in class. However, Dowdell denied ever touching the victim in anyway or at anytime during the incident. He did acknowledge turning the lights on one time, but denied other involvement with the lights. In resolving this apparent conflict between the testimony of the victim and the testimony of Dowdell, substantial weight is given to the written statement of the victim which was made shortly after the incident. The written report specifically names Dowdell by name as having turned the lights on and off. It also indicates that "All the boys was holding me so that I could not move and they tried to take my belt off and zip down my pants." In light of this written statement and having judged the demeanor of the various witnesses, it is found that Dowdell did turn the lights on and off during the assault and did touch the victim during the sexual assault. Dowdell did not make any attempt to assist or rescue the victim during the assault nor did he leave the room to seek any assistance for her. Dowdell had a previous record of misconduct at Brownsville Junior High School prior to this incident. He was involved in two incidents of excessive talking and one fight.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County enter a Final Order assigning Anthony Dowdell to the McArthur Senior High School North. DONE and ENTERED this 11th day April, 1985, in Tallahassee, Florida. DIANE K. KIESLING Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1985. COPIES FURNISHED: MITCHELL A. HORWICH, ESQUIRE EDUCATION ADVOCACY PROJECT LEGAL SERVICES OF GREATER MIAMI, INC. NORTHSIDE SHOPPING CENTER 1459 WEST PLAZA, SUITE 210 7900 N. W. 27TH AVENUE MIAMI, FLORIDA 33147-4796 FRANK R. HARDER, ESQUIRE ASSISTANT SCHOOL BOARD ATTORNEY TWIN OAKS BUILDING, SUITE 100 2780 GALLOWAY ROAD MIAMI FLORIDA 33165 MS. MAEVA HIPPS SCHOOL BOARD CLERK SCHOOL BOARD OF DADE COUNTY 1450 N. E. SECOND AVENUE SUITE 301 MIAMI, FLORIDA 33132 DR. LEONARD BRITTON SUPERINTENDENT OF SCHOOLS DADE COUNTY PUBLIC SCHOOLS 1410 N. E. SECOND AVENUE MIAMI, FLORIDA 33132
Findings Of Fact Petitioner, Deborah Nash, is a white female who was formerly married to a black male. The issue of that marriage is a biracial son. In 1981 the marriage ended in divorce. Petitioner has a bachelor's degree in elementary education which she received in 1981. She earned a master's degree in early childhood education in 1983. While living in Kentucky, Petitioner had teaching experience. During her time in Kentucky she worked in a federally funded child development center. Most of the children in the program were black. The children ranged in age from infants to kindergarten aged children. Petitioner has had other experience in working with minorities in job placement programs. In August, 1984, Petitioner decided to move to Jacksonville, Florida, and to seek employment as a teacher. At relevant times in this inquiry, Petitioner has held a Florida teaching certificate. Upon arrival in Jacksonville, Florida, Petitioner was interviewed by John Haevener, Supervisor of Elementary Staffing for the Duval County School Board, Respondent. Mr. Haevener determined to refer Petitioner to Hortense Brewington, principal at Northshore Elementary School, an elementary school within the Duval County School System. Ms. Brewington is a black female. In making this referral, Haevener felt satisfied about the ability which the Petitioner had to cope with the situation at Northshore Elementary. That school is one which has a minority student population of 95 percent black students and 5 percent white students. The faculty in that school is 70 percent white and 30 percent black. Haevener felt that the Petitioner could succeed in that environment because she had had past experience in dealing with the needs of children in the lower socio-economic strata. In the course of the interview between the Petitioner and Ms. Brewington, Petitioner revealed, upon questioning, the nature of her marital status and whether she had children and, in commenting about her child, told Ms. Brewington that she had a biracial child. This comment was met by Ms. Brewington by a look of surprise. Petitioner was accepted as an employee with the Duval County School System beginning in August, 1984, for the school year 1984-1985. Her assignment was as a second grade teacher at Northshore Elementary. This assignment was changed to a third grade class and Petitioner maintained that position during the relevant periods under consideration. Given that this was an initial assignment to the Duval County School System, Petitioner was placed in the Beginning Teachers Program. This arrangement contemplated and the Petitioner was given assistance in the performance of her teaching duties, provided by the Respondent. Petitioner's class was constituted of 28 students, 26 of whom were minorities, 25 of those children being black. In the fall of the school year 1984-1985, and in particular around October 1984, petitioner began to have difficulties with the class. There were numerous fights between the children. The children were otherwise uncooperative in the sense of not staying in their seats or "talking back" to the Petitioner. In one instance, a student drew two pictures of naked females, one of which was entitled "Angela" and the other reported to be the Petitioner. These items may be found as Petitioner's exhibits numbered 1 and 2 admitted into evidence. Petitioner took the student who had drawn these pictures to Ms. Brewington to seek assistance in disciplining the student. Ms. Brewington's response was not effective, in that the child who made the drawings and was taken to Ms. Brewington for discipline was not punished. This circumstance was representative of Ms. Brewington's shortcomings in disciplining the children within her school, to include children in the Petitioner's class. To summarize, Ms. Brewington was inconsistent in her approach to matters of discipline. On two occasions a male student in the class brought a 5" long switchblade knife to class. These two occurrences were separated in time by about five days. Petitioner referred the student to Ms. Brewington for discipline, but she continued to have problems with the child. Ms. Brewington suspended the child after the second incident with the knife. An additional problem the Petitioner experienced concerned the fact that the children had skills attributable to first graders and were expected to read on a level pertaining to third grade students. Petitioner, in carrying out her duties, was given some assistance in that a Chapter I teacher worked in the Petitioner's classroom with a small group while other class instruction was going on. This Chapter I instruction involved one or two students at a time. Nan Ramey, involved with teacher instructional support for the Duval County School System, was part of the in-service cadre in the school year 1984- 1985. Ms. Ramey holds a degree in elementary education and a master's degree in administrative supervision associated with the educational field. Among her duties was providing assistance to beginning teachers, to include Petitioner. From August 30, 1984 through April 1, 1987, Ramey visited Northshore Elementary 38 times and held eight workshops related to assertive discipline, two of which were attended by the Petitioner. Ms. Ramey found that the Petitioner had problems with instructional organization. If the teacher is sufficiently organized, according to Ramey, student disciplinary problems will not prohibit the teacher from performing his or her duties. She made a specific review of the Petitioner's circumstance at the instigation of Ms. Brewington. By Ms. Ramey's observations, the other beginning teachers who had been assigned to the Northshore Elementary School for the school year 1984-1985 did not experience the problems about student discipline to the degree that Petitioner did. Ms. Ramey gave materials to the beginning teachers at the workshops on assertive discipline and all teachers obtained those materials whether or not they attended the workshop meetings. Classroom tips were given to the teachers on dealing with problems with the students. Ramey saw the Petitioner 31 times in the school year in question. When dealing with the teachers in a one-on-one relationship, twenty to thirty minutes were spent by Ramey in each of these sessions. Petitioner continued to struggle with the problems in her classroom, even after making her best attempts at trying to cope with the situation. During this time, Petitioner talked to Ms. Brewington and Ms. Ramey about her need for assistance. Petitioner was particularly concerned that Ms. Brewington was not doing her part to support the Petitioner in dealing in an effective way with the class disciplinary needs. Petitioner was very distressed about the situation in her classroom and experienced a change in her emotional outlook from normal limits to depression, lack of attention to her housekeeping duties and emotional upheaval to the extent of crying on numerous occasions. Petitioner had been treated by Dr. Edith Ortega, a primary care physician following her arrival in Jacksonville. Around the first of March, 1985, the Petitioner was suffering from a heart condition which had associated chest pains, she had shortness of breath and, as she describes it, felt drained of energy. Dr. Ortega referred the Petitioner to Dr. David A. Orea, a practicing psychiatrist, who undertook the treatment of the Petitioner for the period March 5, 1985 through August 19, 1985. In view of her illness, Petitioner applied for an extended leave of absence which Respondent granted. The extended leave request was for March 4, 1985 through the end of the year. While the Petitioner was on extended leave of absence, she was not paid. On March 8, 1985, in the company of Luann Bennett, president of the Duval Teachers United, which represents the interests of teachers on contract with the Duval County School Board, Petitioner met with Dr. Larry Paulk. Dr. Paulk at that time was the assistant superintendent for personnel. Their entreaties to Dr. Paulk concerned the classroom situation that the Petitioner was experiencing, especially in describing Ms. Brewington's shortcomings. Dr. Paulk was presented with a letter on that same date which offered written expression to the Petitioner's concerns. A copy of that letter may be found as Petitioner's exhibit 4 admitted into evidence. The summarizing position which the Petitioner stated in the correspondence was that she wished to be transferred elsewhere or be given some immediate assistance in her class which would manage the fights which were going on, as reported in the correspondence, averaging about three per day in recent times. The impression which the Petitioner and Ms. Bennett were left with was to the effect that Dr. Paulk would allow the Petitioner to transfer from her assignment if Dr. Orea felt that was necessary to address the Petitioner's medical condition. Succinctly put in writing by Ms. Bennett on the face of the Petitioner's exhibit 4, the March 8, 1985 letter, is the expression that Dr. Paulk said it was "...also possible, if doctor requests, probably can get transfer." Dr. Paulk, in his recollection of the conversation of March 8, 1987, saw it as being a discussion of the problems experienced by the Petitioner in dealing with her principal, Ms. Brewington, and the associated problem of the Petitioner's health. The conference was concluded with what Dr. Paulk saw as a proposal by Ms. Bennett that hypothetically if the Petitioner's doctor recommended the transfer would the school board allow for that transfer. Dr. Paulk told the Petitioner and Ms. Bennett that he needed a statement from Dr. Orea which would release the Petitioner from her extended absence or leave, because at the time of the interview the Petitioner was on extended leave and it would be necessary for the doctor to establish what conditions would be acceptable to allow the Petitioner to return to work. In that setting, Dr. Paulk recalls telling Ms. Bennett that he would consider a transfer assuming clarification by the treating physician, Dr. Orea. Dr. Paulk recalls that Petitioner and Ms. Bennett said that they would get the letter from Dr. Orea. Dr. Paulk in his experience is unacquainted with medical transfers such as requested by the Petitioner. This case to his knowledge was a matter of first impression. He is acquainted with medical transfers from one floor of a school to another to accommodate the needs of the teacher. Dr. Paulk was provided with a note or correspondence from Dr. Orea on March 14, 1985, indicating that it would be acceptable for the Petitioner to return to work on March 18, 1985, if she were granted a transfer from her present position. Dr. Paulk was uncertain what was meant by this correspondence in terms of exactly where the Petitioner should be placed if removed from her present classroom setting. Dr. Paulk discussed this what he considered to be the vague recommendation by Dr. Orea in a conversation with Ms. Bennett. At Ms. Bennett's suggestion, Dr. Paulk spoke with Dr. Orea on March 18, 1985. Prior to discussing the situation with Dr. Orea on March 18, 1985, Dr. Paulk had talked to Mr. Haevener about the propriety of the Petitioner's assignment to Northshore Elementary. Dr. Paulk was interested in knowing why the Petitioner had been placed at that school. At that time Haevener indicated that Dr. Paulk should know that Petitioner had been divorced from a black male. In this connection, Dr. Paulk says he had no knowledge of the fact that Petitioner and her former husband had a biracial son until a point in time at which the Petitioner had brought her claims of discrimination, and a preliminary hearing was held in front of the Florida Commission on Human Relations, which occurred subsequent to the end of the 1984-1985 school year. The school year ended in June, 1985. Petitioner spoke to Haevener some time following his March 8, 1985 meeting with Petitioner and Ms. Bennett. In conversation with Dr. Orea, Dr. Paulk felt compelled to ask Dr. Orea about the significance, if any, of the Petitioner having been a party to a biracial marriage, given that the Petitioner was a white female in a predominately black school with a black principal. Dr. Paulk was concerned about race relations. Dr. Paulk says that not having been told of the existence of a biracial son before this discussion with Dr. Orea, he has no recollection of telling Dr. Orea anything about the biracial child. Dr. Paulk recalls that Dr. Orea indicated that he had no knowledge of any biracial marriage and that, from Dr. Paulk's recollection, concluded the discussion on that topic. Dr. Paulk felt that Dr. Orea was still vague about where the proper placement might be for the Petitioner other than to say anywhere but Northshore Elementary. Dr. Orea, in his recollection of the conversation of March 18, 1987 with Dr. Orea, recalled that it was one in which Dr. Orea told Dr. Paulk that he was not at liberty to discuss the therapy sessions with the Petitioner. He nonetheless stated that the Petitioner's situation, from the point of view of Dr. Orea, was one in which the relationship with a black man had no bearing on the stress or depression Petitioner was experiencing. The stress, in Dr. Orea's opinion, was that brought on by working conditions which Petitioner was subjected to. In his affidavit given to the Florida Commission on Human Relations, a copy of which may be found as Petitioner's exhibit 7 admitted into evidence, and which Dr. Orea confirmed in his telephone testimony at the formal hearing, he states that Petitioner's divorce from a black man had no relevance, and it would not matter whether the former husband was black or not. Dr. Orea felt that the troublesome students, regardless of their race, could be a significant source of stress and might through that situation precipitate depression on the part of Petitioner. He did not feel that there was any relationship between the Petitioner's private life and the stress she experienced at Northshore Elementary. His principal concern about the health of this patient was to the effect that she be transferred to another school and to do otherwise would be detrimental to her health. He emphasizes that on March 14, 1985, he had made the recommendation for transfer and had released her to go back to work if transferred. Dr. Orea recalls that Dr. Paulk mentioned the biracial son in the conversation. Dr. Orea states in his affidavit and confirms in his testimony at hearing that he did not believe that the problems the Petitioner experienced were associated with the fact that she had a biracial son or were related in any particular way to the race of her husband, the students in her class, or the principal at the school. Dr. Orea has no specific recollection of whether he discussed Petitioner's marital status with her, although he would normally find this information out in dealing with a patient. Whether Dr. Paulk is correct in his recollection that the matter of the biracial son was not discussed with Dr. Orea, or that Dr. Orea, in his reference to discussing the biracial son is correct, does not matter. For the record, Dr. Paulk is found to have mentioned the biracial son in conversation with Dr. Orea. In either event Dr. Paulk, by those actions taken in discussing the Petitioner's situation with Dr. Orea and other actions which he would take in this matter, were not intended to and did not discriminate against the Petitioner in any fashion related to her race, the race of her former husband or son or related to her marital status. Dr. Paulk was merely expressing an interest in seeing if there was some underlying racial connotation in the Petitioner's reluctance to return to her classroom at Northshore Elementary School, based upon her background and her present circumstance within that school. In the conversation between Dr. Paulk and Dr. Orea, Dr. Paulk asked Dr. Orea whether the placement should be at a black school or a white school. Dr. Orea had no special placement in mind other than removal from Northshore Elementary or any similar setting. Dr. Paulk also spoke with Ms. Bennett about whether she felt that the Petitioner's situation was one involving a racial problem, but he does not recall receiving any definitive response from Ms. Bennett. Dr. Paulk, apparently beyond the conversation with Dr. Orea on March 18, 1987, decided that the main difficulty experienced by the Petitioner had to do with her problems with the principal, Ms. Brewington. Dr. Paulk thought that Petitioner could return to school the following year, and that the replacement of Ms. Brewington with a new principal would solve the problems that the Petitioner had. Dr. Paulk was reluctant to receive the Petitioner back to school in the school year 1984- 1985 because of what he perceived to be the unwillingness of Dr. Orea to give an unconditional release of the patient from treatment. In her testimony, Ms. Bennett said that she spoke with Dr. Paulk in a conversation in which Dr. Paulk stated that Dr. Orea had led Dr. Paulk to believe that the problem Petitioner was experiencing was racially based, and that therefore, it would not be acceptable to transfer the Petitioner to a new school because Petitioner, through her history with her husband, was having a reaction to black people, children included. Ms. Bennett testified that this was a change in the position that Dr. Paulk had held concerning Petitioner's transfer. Having considered everyone's testimony, it is concluded that Ms. Bennett misapprehended Dr. Paulk's statement that the Petitioner's problem was racially based in describing Dr. Paulk's interpretation of Dr. Orea's remarks. Nonetheless, Dr. Paulk did tell Ms. Bennett, following his conversation with Dr. Orea, that the Petitioner would have to return to her school and might have the possibility of transfer at some later date. Ms. Bennett also identified that Dr. Paulk told her that Petitioner had been married to a black man and had a biracial son. Again, even though the remarks were made by Dr. Paulk, they are not discriminatory. In conversation with Ms. Bennett, Dr. Paulk stated that the policy of the board was to not allow an arrangement which would accede to an outcome which had racially based motives, reference Petitioner's transfer request. When the Petitioner discovered that she would not be transferred, her condition reached a level where it was necessary to hospitalize her for her stress in the period March 21, 1985 through April 5, 1985, under the care of Dr. Orea. From that point until August 19, 1985, the Petitioner was seen on an out- patient basis. On July 25, 1985, Dr. Orea wrote to Dr. Paulk to further describe his opinion of the Petitioner's health in which he sets forth that the Petitioner has major depression related to stress suffered at work and not related to racial issues. He goes on to indicate that the Petitioner could have been able to work from March 18, 1985 and forward, and that the Petitioner could function in a normal classroom as a teacher as long as it was not at Northshore nor in any other school where there were severe disciplinary problems. A copy of this correspondence may be found as Petitioner's exhibit 6 admitted into evidence. On March 26, 1985, the Respondent wrote to the Petitioner to ascertain the Petitioner's intentions concerning her future affiliation with the school system. This document was received by the Petitioner on May 3, 1985. It outlined three alternatives. She could request to return to her present school, Northshore Elementary School, for the upcoming school year 1985- 1986, she could request an additional year leave of absence, if entitled, or she could resign her position effective June 14, 1985. A copy of this item as executed by the Petitioner may be found as Respondent's exhibit 1 admitted into evidence. Petitioner signed this item on May 9, 1985 and in making an election instead of noting her return to the classroom assignment that she held before, attempted to gain a transfer to a school in the Ortega area for any grades K-5, preferably K, 1 or 2. She also noted her education as holding a master's degree in early childhood. This item was received back by the Respondent on May 13, 1985, in its personnel office. This form may not be used for purposes of requesting voluntary transfer to a different school. A copy of a memorandum concerning voluntary transfer may be found as Respondent's exhibit 6 admitted into evidence. It pertains to the school year 1985-1986 and dates from April 1, 1985 and is addressed to all teachers within the Duval County School System. It points out that the request would be considered upon asking for four schools in order of preference and one of eight geographical zones. It alerts the faculty members to the fact that a Federal Court order mandates the staff ratio of approximately 70 percent white to 30 percent black teachers in each school. It describes the fact that seniority will control in those instances where more than one applicant has satisfied other related criteria. Petitioner was without a great deal of seniority, having just affiliated with the Duval County School System the year before. The arrangement also contemplates the need to be approved by the receiving principal. This process is in accordance with the agreement between the Duval Teachers United and the Duval County School Board. The area described in the unauthorized form which the Petitioner wished to use to transfer is one highly sought after and there is very little likelihood that the Petitioner would have been able to voluntarily transfer into the Ortega area. She says she had sought that area not because of any express appreciation of the high desirability of that area as a teaching environment, but based upon the close proximity of her residence to that area. The form of transfer which the Petitioner sought was one that has been described by Ms. Bennett as outside the agreement between the teachers' union and the Respondent, that cannot be handled by ordinary means. As described before, the typical transfer for health-related reasons that had been done in the past related to changes in location within the building to accommodate the teachers' needs. Given that the Respondent was not satisfied about exactly what setting would be an acceptable arrangement for the Petitioner from the point of view of the Petitioner's treating physician, Dr. Orea, and given that the Respondent had determined to remove Ms. Brewington as principal at Northshore Elementary and substitute Cynthia Anderson at that school for the school year 1985-1986, no special arrangement was made to accommodate the Petitioner by transfer. The decision to send Petitioner back into that setting was made by Mr. Haevener and Dr. Paulk, following discussion on two or three occasions. This decision on placement was further confirmed in a second notice of August 6, 1985, a copy of which may be found as Respondent's exhibit 4, served upon the Petitioner, inviting her to return to Northshore Elementary. Having not heard from the Petitioner, the Respondent sent a notification on August 22, 1985, by certified mail, a copy of which may be found as Respondent's exhibit 8 admitted into evidence, indicating that the Respondent found the Petitioner to have declined the right to an employment contract for the school year 1985-1986. Facts in the case lead to the conclusion that notwithstanding the format which Petitioner utilized in attempting to locate in a school in the Ortega area, she would not have been entitled to that assignment. Ms. Ramey and the new principal, Ms. Anderson, point out the fact that Northshore Elementary School was similar to other schools in the Duval County School System. Ms. Anderson in particular points out that the disciplinary problems were about the same at Northshore Elementary, although the facts that more students were there and it was a predominantly black school may have made the circumstance worse. Ms. Anderson, by her testimony, related her attempts at improving the disciplinary situation at Northshore in the school year 1985-1986 and established the success that was achieved in that endeavor. When she arrived at the school, the school had approximately 1,100 students and 65 teachers of which 50 teachers were returning staff members. On balance, her description of the events of the school year 1985-1986 indicate that the Petitioner would have returned to a much better environment as it addressed her primary concern of support within the classroom given by the administration. Petitioner served her probationary period and was issued a permanent teaching certificate. Not being satisfied with the arrangements Respondent made to address her situation, Petitioner elected to leave Jacksonville, Florida, and to go and live with her mother in Boca Raton, Florida. She began teaching kindergarten in Boca Raton, Florida, in September, 1985 and continues as a teacher. She has overcome her stress-related illness. Given the constraints on the Respondent concerning the teacher placement and the need to honor the conditions of seniority, the faculty ratio between whites and blacks and the expectation that teachers must confront the stress inherent in teaching in schools such as Northshore Elementary, the response which did not allow for a transfer is not discrimination against a handicap, even if emotional stress is considered to be a handicap.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. Keith O'Neil Vinson (date of birth November 1, 1968) was a student enrolled in the regular school program at Arvida Junior High school during the 1982/83 school year as an eighth grader. By letter dated August 18, 1983, Petitioner, the School Board of Dade County, Florida, advised the parent, Mrs. Yvonne Vinson, that Respondent, Keith D. Vinson, was being administratively assigned to Youth Opportunity School South based on his disruption of the educational process in the regular school program and his failure to adjust thereto. Keith is physically well-developed for his age. That is, he is approximately 6 feet 5 inches and weighs approximately 200 pounds. During the 1982-83 school year, Respondent was the subject of more than 10 suspensions and was called in for numerous teacher conferences based on his defiant and assaultive conduct with other students while enrolled at Southwood and Arvida Junior High School. (Testimony and admission of parent, Yvonne Vinson) From 1981 through 1983, Respondent engaged in repeated acts wherein he was involved in fights and assaults of other students. Despite repeated efforts to attempt to control Respondent's defiant behavior, his same pattern of conduct persisted. Although Respondent's mother, Mrs. Yvonne Vinson, testified that the Respondent's conduct has been exaggerated by school officials and that he was singled out for "petty matters," the evidence herein reveals and it is specifically found that the Respondent's conduct was disruptive of the regular school program throughout his enrollment therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's appeal of the Petitioner's assignment of Respondent to an opportunity school program be DENIED. RECOMMENDED this 10th day of February, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1984. COPIES FURNISHED: Mark A. Valentine, Esquire Jesse J. McCrary, Jr., Esquire 3050 Biscayne Blvd., Suite 800 Miami, Florida 33137 Mrs. Yvonne Vinson 11610 South West 140 Terrace Miami, Florida 33176 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Lindsey Hopkins Building 1410 North East 2nd Avenue Miami, Florida 33132
Findings Of Fact The facts which resulted in the filing of these administrative charges are not in great dispute. The Respondent, Henry Gooch, taught the class of Marriage and the Family during the summer term of 1975 at Santa Fe Community College. The college class schedule listed this course and indicated that the course included the weekend of July 12 and 13. Classes began around July 2, 1975, and Respondent informed the students that class attendance was required for this course, any student who missed over three classes would receive a "W" (for which a student does not receive a course credit), that the weekend experience would count as five class sessions, and that the course would, because of this weekend, terminate two weeks earlier than normal. Respondent Gooch stated that the weekend experience was a requirement for the course and that any student that did not attend would receive a grade of "W." At no time were any students given an indication of what was to take place during this required weekend "experience." The weekend experience took place on Little Lake Santa Fe outside Gainesville, Florida. One student advised the Respondent that because of religious reasons, she could not attend. This student did not attend the weekend experience and received a "W" for the course. Failure to get credit for this course caused this student not to graduate after the summer term and required her continuing attendance and enrollment at Santa Fe Community College. Students were permitted to bring their spouses to the weekend experience and several of them did. After the students arrived, the Respondent began a group discussion on the topic of public nudity. This discussion became very heated and apparently some of the students got the impression that nudity was part of the program for this weekend. Several of them, in fact, asked Mr. Gooch whether he intended to require nudity as part of the weekend experiences. Mr. Gooch assured them it was not. After this discussion had ended Mr. Gooch began what has been called "the machine game." Basically what happened is that one student was asked to come into the center of the room and imitate a machine. After this had begun, the other students were advised to join in by forming a circle or a line and to imitate the machine in unison. Each student was then asked to exchange pants with the student in front of then. At this time, at least one student found this activity to be extremely objectionable. Several other students did not participate in the exchange of clothing. One student, Ron Griffith, who found the activities objectionable, left the room and shortly thereafter left the weekend with his wife. The student Griffith eventually filed a formal complaint with the School Administration outlining his version of the activities of the weekend and his feelings that the Respondent's conduct was extremely unprofessional. This statement was admitted into evidence as Petitioner's Exhibit No. 3. The Respondent stated that the factual allegations in that complaint are accurate. At least one other student left the weekend after the machine game had been completed and that student also received a "W." Shortly after student Griffith filed his formal complaint with the School Administration, the Respondent Gooch was suspended from teaching responsibilities at Santa Fe. This occurred on August 1, 1975. Another instructor took over the responsibilities for teaching Marriage and the Family and in that manner the course was completed. It is admitted that the school regulations regarding field trips was not complied with by the Respondent Gooch. A copy of the school regulations in the school policy manual had been assigned to Gooch as Department Coordinator. Mr. Gooch claims he was not aware of the field trip policy and would have complied with it had he known. For several students that did not attend the weekend trip or left before its completion and who received "W's" for their final grade, there was no real showing that an alternative requirement for course completion was made available to them. It is true that the Respondent Gooch testified he intended to give several of these students an opportunity to make up the missed time at this weekend, but whatever effort he put into this was certainly inadequate, particularly in light of the fact that his prior announcements would give any reasonable person the absolute impression that failure to participate and complete this weekend made the grade of "W" mandatory. There is certainly no question that the Respondent, Gooch, did violate provisions of the College Policy Manual. The pleadings filed in this case admit such did occur. The crucial issue is whether these were mere technical violations or whether the nature of the Respondent's conducts should be considered serious infractions. It is undisputed that the Respondent required the attendance of students in this course at this weekend experience. The charges filed on behalf of the college state that the students were coerced to attend this weekend. Perhaps coerced is not the most appropriate word to use, but it is certain attendance at this weekend was mandatory on a threat of receiving no credit for the course. It is also undisputed that the students were not given any indication of what to expect during this weekend. The Respondent should have known that his planned activities for this weekend would be objectionable or distasteful to at least some of the students in this class. Those students were given no choice or alternative course of study by which they could have received credit for this course as a substitute for this weekend experience. As a result, these students, as mentioned above, did not participate in the weekend experience and received a grade of "W" for the course of Marriage and the Family. The failure of these students to receive credit for this course was a direct result of the Respondent's not complying with school policy. Even though the Respondent advised the class the weekend experience was a mandatory requirement in time for the students to drop this course and add another one to receive required credit, that opportunity was not very meaningful without a better explanation of what was involved in the "weekend experience." The students could not be held responsible for having made a choice in this matter when they were uninformed as to what they were choosing. A student should not be subjected to requirements found to be personally distasteful without at least the sanction of the University and the informed consent of the student. In this case, neither occurred, as the school policy on field trips was not followed and the students were kept in total ignorance as to what the itinerary was for this weekend. The students who received a "W" grade cannot be said to have failed to meet the minimum requirements in this course when one of the announced requirements, the unapproved field trip, violated school policy. It must, therefore, be concluded the Respondent Henry Gooch did violate School Policy 1- 5.17 by causing several students to receive the grade of "W" for not participating in the weekend. Were it only that the weekend turned out to be less than completely successful, this matter might be dismissed as nothing more than exercise of poor judgement on the part of the Respondent that caused no real harm. However, the violation of school policy combined with this poor judgement caused several students to lose credit for the course and at least one not to graduate in time. The loss to the students cannot be replaced and the harm to them is real, not speculative. Therefore, it is recommended that the Respondent Gooch be found to have violated school policy, and suspended until the end of the Fall Quarter of 1975, thereupon to be returned to faculty Status on an annual contract status. Furthermore, he should not be considered for reinstatement on a continuing contract basis for one year and during this probationary period, not be eligible for pay adjustment. DONE and ORDERED this 10th day of November, 1975, in Tallahassee, Florida. KENNETH G. OERTEL Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1975. COPIES FURNISHED: Robert P. Cates, Esquire Attorney for Respondent 635 Northeast First Street Gainesville, Florida Robert V. Bookman, Esquire Attorney for Petitioner 222 Northeast First Street Gainesville, Florida
The Issue The issue presented herein concerns the Respondent's through the person of his parents appeal of the School Board's assignment (of Respondent) to Youth Opportunity School South - an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated November 8, 1983, Petitioner, the School Board of Dade County, Florida, advised the Respondent, Carlos Alberto Giralt, an eighth grade student attending Glades Junior High School, that he was being administratively assigned to the opportunity school program based on his "disruption of the educational process in the regular school program and failure to adjust to the regular school program." Carlos Alberto Giralt, date of birth December 6, 1969, was assigned to Glades Junior High School as an eighth grader during the 1983-84 school year. During October of 1983, Carlos' brother was involved in a physical altercation with another student and Carlos came to his brother's aid by using a stick to physically strike the other student involved in the altercation. Initially, Carlos was given a ten-day suspension and thereafter the suspension was changed to the administrative assignment to the alternative school placement which is the subject of this appeal. 1/ Carlos' father, Salvador Giralt, was summoned to Glades Junior High School and advised of the incident involving Carlos and the other student in the physical altercation. Mr. Giralt was advised of the policy procedures in effect at Glades and was assured that Respondent would be given the least severe penalty, which was the ten-day suspension originally referred to herein. The Giralts are very concerned parents and have voiced the concern by complaining of Respondent's assignment to the Petitioner's area office. In keeping with this concern, the Giralts have requested that their son, Carlos, be reassigned to his original community school, Glades Junior High School. Respondent does not have a history of repeated defiant conduct as relates to School Board authority. According to Petitioner's Assistant Principal at Glades Junior High, Gerald R. Skinner, Respondent was last disciplined approximately two years ago. No showing was made herein that Carlos was either disruptive of the educational process or has failed to adjust to the regular school program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the School Board of Dade County enter a Final Order transferring the Respondent to Glades Junior High School or other appropriate regular school program. RECOMMENDED this 24th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1984.
The Issue The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.
Findings Of Fact Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades. Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man." Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm." D. S. also recalled that Respondent said "cock-eyed" in class. D. S. admitted that he never heard Respondent threaten to "pop" a student. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise, D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words. J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit." Student D. V. testified that he saw Respondent hit J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths." D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call. D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass." Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student, D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing medication as a convenient excuse to extend his mid-day respite from learning. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Carmen M. Rodriguez Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street Suite 209 Miami, Florida 33157 Mark F. Kelly Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 Tampa, Florida 33675-0638
The Issue Petitioner University of Florida seeks to terminate Respondent, pursuant to Rules 6C1-1.007, 6C1-1.008, 6C1-7.018, and 6C1-7.048, Florida Administrative Code, for conduct alleged as follows: Abusing the faculty member-student relationship; Fostering, by example, an environment in which substance abuse is promoted to students whom Respondent supervises; Creating a hostile learning environment; and Retaliation in the course of a sexual harassment investigation.
Findings Of Fact In order to resolve the legal issues herein, it is not necessary to relate all the evidence taken, to relate the stipulated facts verbatim, or to record the entire sequence of events and all the opinions various witnesses expressed of one another. Accordingly, and in accord with Section 120.57(1), Florida Statutes, only material findings of fact have been made.3 In doing so, effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth, but where conflicts existed, the credibility issue has been resolved on the characteristics listed in Standard Jury Instruction, (Civil) 2.2b.4 Respondent was initially hired at UF on July 17, 1992, in a non-permanent position as a Research Scientist, at its main campus in Gainesville, Florida. Beginning April 1, 1997, and at all times material, Respondent was employed on the main campus as a non-permanent Assistant Professor in the Institute of Food and Agriculture Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at UF. As such, Respondent was assigned teaching, research, and extension duties that include teaching undergraduate and graduate courses and mentoring students. Respondent did not hold tenure, but was in a tenure-earning status for nine years. Respondent is an ichthyologist and was employed in the specialized academic field of wildlife conservation genetics, within a limited professional community comprised of only approximately 100 professionals in the United States. Students, graduate students, and colleagues of Respondent understand that this is a tight-knit professional community and that Dr. Robert Chapman of the University of Charleston, South Carolina, is part of that "elite 100." As with any profession, networking is important to students' career paths. Anna Bass was never a UF student or a student of Respondent. However, she was directly employed by UF from March 1995 to the summer of 2000, as Respondent's lab manager. She worked for Respondent elsewhere prior to that period and has known him since approximately 1992 or 1993. As Assistant Professor, Respondent served as the Major Professor and Thesis Committee Advisor for UF graduate students Joel Carlin, Alicia Pearce, and Luiz Rocha. Currently, and at all times material, Joel Carlin was enrolled as an IFAS graduate student at UF. Alicia Pearce graduated from the UF-IFAS program in May 2001. Katherine Moore was never Respondent's student and never attended UF. However, Respondent had been on Ms. Moore's graduate thesis committee when she was a student at the University of Charleston. She graduated from that university approximately 1998-1999. Ms. Moore has been employed as a biologist at the National Ocean Service in Charleston, South Carolina, since 1990. The student-professor relationship is based on mutual trust and respect, with the student's best interest at heart, for either undergraduate or graduate students. As major professor and chair of thesis committees, Respondent has substantial power over the career paths of graduate students he has advised. Major professors are expected to serve as mentors to their students, providing guidance and acting as professional role models to assist and mold judgment. They are relied upon by students and former students for future educational, job, and research grant references. The graduate student-major professor relationship persists beyond graduation and often endures for a life-time. Graduates often continue original research in cooperation with their mentors and co-author professional research articles with them. Graduates frequently seek the counsel of their mentors for important professional post-graduate decisions. Among his students and colleagues, Respondent has a reputation for partying. His liquor of choice is tequila. He has held what are called "late night lab sessions" with his graduate students in off-campus Gainesville music clubs and bars. Student attendance at these "late night lab sessions" are not required, but it is understood they can be helpful for building both rapport and a career. Respondent also entertains, as do other professors, by serving food and alcohol in his home, so that students may meet and network with visiting speakers/ colleagues in their chosen field(s). During a party hosted by Respondent at his home in May of 1997, he served and consumed beer and tequila in the presence of adult IFAS students. He became inebriated at that party. Respondent, Mr. Carlin, and a visiting scientist, met at a music club in Gainesville and drank alcohol together on one occasion. In early June 2001, Respondent attended an informal going-away party for the same colleague at a Gainesville restaurant with Mr. Carlin and Mr. Carlin's undergraduate girlfriend. Alcohol was consumed and at the end of the evening, the three felt too inebriated to drive legally or safely. However, Respondent drove home and did nothing to prevent the others from driving home. Respondent's explanation for this last occasion was that he was under great emotional stress due to his wife's recent miscarriage. Respondent has consumed alcoholic beverages at off- campus locations at least 3-4 times per year with adult IFAS students whom he academically supervised. In 1998, when Mr. Carlin, an adult, was interviewing on the UF Campus at a morning appointment with Respondent for admission to the UF graduate program, Respondent invited him to meet that night, at approximately 11:00 p.m., with Respondent and his graduate students in a Gainesville establishment where they consumed alcohol. Attendance at the bar was not a quid pro quo for admission, and Mr. Carlin never thought it was. Mr. Carlin remained for the meeting and drinking and was ultimately admitted into the program. Respondent considered his invitation to be a friendly opportunity for Mr. Carlin to talk informally with other graduate degree candidates so that all concerned could determine if the fit was right for Mr. Carlin in the program he wanted to pursue at UF. Mr. Carlin did not object to the drinking, but he felt the late night hour was inconvenient, since he had expected to leave town after his morning interview, and unprofessional, since he never got to discuss dissertation ideas at that time with Respondent. Once, when Respondent had been in Charleston, South Carolina, helping Ms. Moore "finish up [her] Masters," they were at a post-reception party in Respondent's motel room. Other guests were drinking alcohol and smoking pot (marijuana). Dr. Robert Chapman was also present. Respondent and Dr. Chapman settled which of their names should appear first on a jointly- authored professional publication with a "tequila bottle toss." Each professor-author tossed an empty tequila bottle into the motel swimming pool from the motel room balcony. The man whose bottle hit closest to the pool's center, won. The date of this event is not clear, but apparently it occurred while Respondent was employed by UF. There is no reason to suppose UF students were present. Respondent has possessed liquor at off-campus professional conferences in the presence of adult UF students for whom he had some academic responsibility. Several years ago, at a professional reception held for Respondent, he autographed the closure strap at the back of the bra worn by a non-UF undergraduate female, approximately nineteen years old, who was flirting with him in the presence of Ms. Moore. Ms. Moore described the young woman as someone attending her first professional conference who was in awe of Respondent as a "star" in their field. Respondent admitted to making sexually suggestive witticisms to the undergraduate female at the time. No one took him seriously or was offended. Respondent has repeatedly possessed or smoked marijuana, a controlled substance under Florida law, in the presence of others with whom he was professionally associated.5 Use or possession of marijuana on campus offends UF's "drug-free policy." Use or possession of marijuana by a UF faculty member or student anywhere is considered "disruptive behavior" subject to UF discipline. See Rules 6C1-1.008(1)(m) and 6C1-7.048(1)(n), Florida Administrative Code, and the following Conclusions of Law. In June 2001, Respondent used marijuana at Mr. Carlin's house with Mr. Carlin and Mr. Carlin's live-in undergraduate girlfriend present. Respondent's explanation for this was that he was under great emotional stress due to his wife's recent miscarriage. Ms. Moore has observed Respondent smoke marijuana in the presence of students at most of the off-campus professional meetings they have attended over the years from 1992 to the present, but the students she referred-to probably attended universities other than UF. Ms. Pearce has observed Respondent smoke marijuana in the presence of UF students approximately 15 times. She did not specify the locations as on- or off-campus. While she was his student and in his UF office, on the UF campus, Respondent showed Ms. Pearce a "highlighter" pen that he carried in his pocket, which pen had a false bottom for hiding a stash of marijuana. Ms. Bass has smoked marijuana with Petitioner multiple times. She did not specify the location(s) as on- or off- the UF campus. In July 2001, Alicia Pearce was 29 years old. During her UF graduate studies, Respondent had been her major professor and thesis committee advisor. She had received her Master's Degree diploma from UF on May 5, 2001, and UF could not require her to complete any further requirements. (See Finding of Fact 8.) However, according to Dr. Richard Jones, UF Dean of Research, it was expected that after award of their degrees, former graduate students would place their theses in reviewed (preferably peer-reviewed) publications. Respondent had agreed that Ms. Pearce could present her thesis after graduation, due to her relocation to North Carolina. In order to present her paper after graduation, Ms. Pearce submitted her research paper abstract and her registration papers and fees for the American Society of Ichthyologists and Herpetologists (ASIH) Conference in February, 2001, before her graduation from UF. The conference was scheduled to be held on July 5-10, 2001, at State College, Pennsylvania (Penn State). Respondent also attended the July 5-10, 2001, ASIH Conference in the capacity of a UF-IFAS faculty member to, among other purposes, mentor his graduate students, Pearce, Carlin, and Rocha, all of whom were presenting papers at the conference. Respondent was not required to request leave, and did not request leave, from UF to attend the conference. He was on salary from UF while at the conference. Respondent was entitled to request a travel reimbursement from UF, as did Mr. Carlin, but elected not to do so. Respondent has attended the ASIH Conference approximately four times while employed by UF-IFAS. At the 2001 ASIH Conference, Ms. Pearce roomed in a dorm with Luiz Rocha. On July 6, 2001, Respondent used his credit card to purchase dinner and alcoholic drinks at a restaurant/bar in the Penn State Conference Center Hotel for a group of adult colleagues and adult students, including Carlin, Pearce, and Rocha. The ASIH Conference was being held in the hotel. The hotel was considered part of the Penn State campus. During dinner, Respondent made a sexually suggestive comment to Ms. Pearce, who was the only female present, and remarked that it could not be sexual harassment because she was no longer his student. Neither Ms. Pearce nor anyone else took him seriously or was offended. After dinner, Petitioner invited Ms. Pearce to his hotel room, along with another senior colleague, to discuss a tip Respondent had received several weeks earlier that a UF student had fabricated research. Respondent wanted the senior colleague's advice. He wanted Ms. Pearce's perspective because she had been in the lab during a relevant period of time. Their conversation in Respondent's hotel room lasted about an hour. During this period of time, marijuana was present in Respondent's hotel room. Respondent did not admit to bringing the drug with him to the conference, but the fact that marijuana was present in Respondent's hotel room means the contraband drug was in his constructive possession. Respondent admitted holding, sniffing, and/or smoking6 a "token toke" in the hotel during the dates of the 2001 ASIH Conference, and apparently in the presence of Ms. Pearce and the adult colleague. Marijuana use or possession is contrary to Penn State University's drug-free policy and rules. Respondent, his colleague, and Ms. Pearce next attended the official conference reception downstairs in the hotel. Alcohol was served and consumed. Later the same evening, Respondent and Ms. Pearce returned to his hotel room. Both had already drunk a great deal of alcohol and proceeded to drink more. They were observed alone together in the hotel room by Mr. Carlin, whom they sent away. Ms. Pearce became further inebriated during a long conversation with Respondent, which included discussion of her fear of doing the professional presentation coming up at the conference, past lab work, and intimate details of their respective married lives. She then passed out in the bathroom. Respondent knew Ms. Pearce was already partially inebriated and vulnerable before he took her to his hotel room, because she had begun to cause a scene at the conference's reception. Respondent also knew she had a history of irresponsible behavior with regard to alcohol because in May 2000, she and Mr. Carlin, high on alcohol, had telephoned Respondent's home repeatedly at approximately 2:00 a.m., in the morning. They then drove, in that condition, to Anna Bass's house, where they "crashed" for the night. Thereafter, Respondent had told them he was distancing himself from them; told them they should never call him again at that hour; and gave them extra lab work. On July 6, 2001, Respondent assisted Ms. Pearce from the hotel bathroom into one of his hotel room beds. It is undisputed that the couple then kissed and groped each other. Respondent's and Ms. Pearce's versions of what happened next, or how long it took, are fairly similar. Where they differ, the undersigned has balanced Ms. Pearce's candor and demeanor or lack thereof while testifying, her past experiences with marijuana and excessive use of alcohol, her expressed intent to go to the ASIH Conference with the purpose of indulging in heavy drinking, and her inability to recall the evening's events in sequence or in detail, against Respondent's testimony, which is discredited in part by his prior inconsistent statements and admissions. Having assessed their respective versions, it is found that: Respondent removed or dislodged Ms. Pearce's shirt and bra. Their groping progressed to Respondent's massaging Ms. Pearce's breasts and the two of them mutually massaging each other's genitals. At that point, Respondent broke it off and removed himself from the bed. Ms. Pearce then turned over and passed out or went to sleep. Respondent then went to sleep in another bed. About 4:00 a.m., Ms. Pearce awoke, dressed, and left the room, but since the shuttle bus had left, she was unable to return to her dorm. Respondent followed her to the lobby. She wanted to know if they had had intercourse. Respondent felt he was very clear in stating that no intercourse had occurred. However, Respondent's answer seemed non-specific to Ms. Pearce and did not satisfy her that intercourse had not occurred. She was very concerned, because she and her husband had been trying to conceive a child. However, she allowed Respondent to persuade her to return to his room to talk until 7:00 a.m., when the shuttle began to run again, and she then left the hotel. Respondent explained the July 6, 2001, sexual incident with Ms. Pearce as his being emotionally unstable due to his wife's recent miscarriage. Ms. Pearce did not say anything more to Respondent about their sexual incident until later on July 7, 2001, when she asked him not to tell anybody. He agreed that there was "no use in other people getting hurt." They behaved normally to each other in public throughout the next several days and were not alone together. Respondent helped Ms. Pearce prepare to present her paper later that weekend, and she did well for her first presentation on July 10, 2001. She presented Respondent with an autographed copy of her completed thesis after her presentation. The dedication warmly expressed her thanks to him for his mentorship of her. On Tuesday, July 10, 2001, the last day of the conference, after her presentation, Ms. Pearce also filed a criminal complaint with the Penn State University Police Department, alleging Respondent had sexually assaulted her. Respondent was confronted by two police officers and questioned extensively. He cooperated and provided a statement and blood for a blood test. He was not arrested or charged. Back in Gainesville, Respondent spoke to Mr. Carlin by telephone on July 13, 2001. Upon Respondent's inquiry, Mr. Carlin stated that he had learned of the Penn State investigation from Ms. Pearce when he drove her to the airport on July 10, 2001. Both Respondent and Mr. Carlin agreed Mr. Carlin had no first-hand knowledge of the situation. Respondent advised Mr. Carlin to stay way clear of the situation. On Monday, July 16, 2001, Respondent again spoke with Mr. Carlin by telephone. On that date, Respondent told Mr. Carlin that Mr. Carlin's and Luiz Rocha's names had also been of interest to the Penn State Police. Because Respondent said, "How would you like to be accused of rape?" Mr. Carlin could have interpreted this conversation as a threat. He did not. On July 22, 2001, Dr. William Lindberg, Respondent's Department Chairman, submitted his evaluation of Respondent's academic performance for the 2000-2001 academic year, which rated Respondent as overall "exemplary." This was a precursor to Respondent's getting tenure. Dr. Lindberg did not know about the events of the 2001 ASIH Conference when he submitted the evaluation. It is undisputed that Respondent is a "star" in "the elite 100," has published widely, is a popular professor, and has obtained valuable research grants for UF. On July 23, 2001, Ms. Pearce filed a complaint regarding Respondent with UF-IFAS. It was categorized as "sexual harassment." The investigation was cloaked in confidentiality. At the time of his July 13 and 16, 2001, telephone conversations with Mr. Carlin, Respondent could not have known that UF would be investigating him. On August 6, 2001, Ms. Pearce was interviewed by the UF investigator. On or about August 6-8, 2001, Mr. Carlin was interviewed by, and/or provided chronological notes to, the UF investigator and Dr. Lindberg. On August 8, 2001, Ms. Moore was interviewed by the UF investigator and related the "signing of the bra strap" event. On August 16, 2001, Respondent met with Dean Cheek, Dean Jones, Chairman Lindberg, and the investigator. Respondent saw notes on, or was made aware of, all or some of the statements made by those interviewed. He was informed that he probably would be terminated. He also was instructed to be circumspect and respectful in dealing with the situation and potential witnesses. Respondent and Dr. Lindberg shared a car back to their department after this meeting. On the ride, Respondent asked Lindberg what he should do about the paper he was co- authoring with Pearce. Lindberg told him that if he did not have much invested in it, the high ground was to step away. Lindberg did not recall Respondent's also asking what he should do about papers he co-authored with Carlin and Moore. Mr. Carlin was interviewed by Dr. Lindberg and the investigator again after Respondent met with the Deans. At hearing, Ms. Pearce presented speculations, but no credible evidence, that Respondent had done, or planned to do, anything to her in retribution for her sexual harassment charge. As of the disputed-fact hearing, Respondent had not removed his name from their joint paper. On August 17, 2001, Respondent telephoned Ms. Moore and told her to remove his name from the publication they had recently co-authored and were preparing for publication. He asked her never to contact him again because it was painful for him to talk to someone who told stories about him and he was tired of her complaints about her employer, who was a friend of his. Ms. Moore considered Respondent's telephone call to constitute her "professional excommunication." Respondent's withdrawal of his authorship created an awkward situation for Ms. Moore that necessitated her sending a letter of explanation to the publisher to clarify that Respondent's withdrawal was not due to a disagreement regarding her research results. The paper will be published anyway. Ms. Moore contacted Chairman Lindberg on August 23, 2001, and complained about Respondent's action and expressed her fear of further professional reprisals from Respondent. Dr. Lindberg agreed that if the withdrawal of Respondent's name became an issue with the publisher, he would write to the publisher for Ms. Moore and explain the situation in general terms. On August 14, 2001, Anna Bass was interviewed by the UF investigator. On August 19, 2001, Ms. Bass sent an e-mail message to Mr. Carlin which amounted to a diatribe against him and Ms. Pearce for speaking to the UF investigator. On August 28, 2001, a Notice of Proposed Dismissal was issued against Respondent by UF. On September 14, 2001, after learning that Respondent's dismissal had been proposed, Ms. Bass contacted Chairman Lindberg and charged Mr. Carlin with sexual harassment against her which allegedly occurred more than a year previous, when he and Ms. Pearce "crashed" at her home. (See Finding of Fact 34.) Ms. Bass denied that Respondent put her up to filing these belated charges. Respondent denied asking anyone to retaliate against, or speak to, Mr. Carlin for the purpose of preventing or altering the information Mr. Carlin gave in interviews with the UF investigator or UF authorities or to discredit his information. Respondent further testified that he did not ask Dr. Robert Chapman to author any correspondence related to the investigation. However, he admitted discussing his situation under the sexual harassment charges with Dr. Chapman. Respondent had problems with Mr. Carlin previous to the current investigation. On one occasion, he had to request that Mr. Carlin not annoy his female lab assistant. Respondent had previously disciplined Mr. Carlin for making annoying late night telephone calls to Respondent's home. (See Finding of Fact 34.) At the 2001 ASIH Conference, Respondent had approached Mr. Carlin about whether Mr. Carlin wanted to remain in competition for the Stoye Award, because of some concerns over the eligibility of his research. Mr. Carlin and Respondent have different understandings of what was involved in this discussion, but Mr. Carlin did not remove his name and Respondent did not interfere with that choice. Mr. Carlin went on to win the prestigious award. Some other members of "the elite 100" had also had a problem with Mr. Carlin concerning access to a limited supply of endangered species samples he and another graduate student needed. Mr. Carlin and the other researcher were in a race to publish their respective dissertations first. Dr. Robert Chapman was aware of the controversy. On Friday, September 14, 2001, after hearing about Respondent's proposed dismissal from employment, Dr. Chapman and Respondent had a telephone conversation during which they discussed Mr. Carlin. Respondent expressed his frustration at the complaint filed by Ms. Pearce and accused her of "filing false claims" against him. Respondent stated that Ms. Moore had made an unflattering anecdote and "contributed a story that portrayed [Respondent] in a negative light." Respondent also stated that Mr. Carlin had alleged that Respondent had harassed him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin and described him as "shiftless." On Friday, September 14, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin expressing anger and shame and stating in part that, "I fear that your career is in severe jeopardy. No one I have talked to will hire you after this." These comments of Dr. Chapman were directed to the rare species sample controversy but mixed in with a diatribe about Respondent's situation, as if they were part of the same complaint. On Saturday, September 15, 2001, Dr. Chapman sent an e-mail message to Jimmy Cheek, UF-IFAS Dean of Academic Programs, accusing Mr. Carlin of aiding and abetting a shameful assault upon Respondent and questioning Mr. Carlin's "honor and integrity," referring to Mr. Carlin as "a slimy worm." In this same e-mail, Dr. Chapman stated that "Ms. Moore is a thief," and a radical feminist who was out to get Respondent. Apparently, Dr. Chapman sent a similar missive to Dean Jones. Respondent had provided the deans' names to Dr. Chapman and did not dissuade him from writing them. On Sunday, September 16, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin, apologizing for writing him in anger but not for what he had written to him on September 14, 2001. He told Mr. Carlin that his "first allegiance is to the professor" and advised him that "[I]nterviews with administrators are not an obligation. You have the right to decline and only the courts can force it." Dr. Chapman also stated that Mr. Carlin should talk with Respondent "about whether he should continue to serve as your professor" and further advised him to "take a low profile." While stating he would not circulate rare species sample rumors beyond those persons who knew of the rare species sample controversy before, and that he would be professional if asked about Mr. Carlin's competence, Dr. Chapman also stated he would volunteer nothing for Mr. Carlin. Dr. Chapman is a former employment supervisor of Mr. Carlin who strongly recommended him for admission to UF's graduate school on December 16, 1997. Mr. Carlin now feels he is unable to list Dr. Chapman as a reference because he questions Mr. Carlin's intellect and moral character and will accordingly give Mr. Carlin bad references rather than good ones. Mr. Carlin has great concern that Respondent has ostracized and vilified him for his role in the UF complaint review process. Mr. Carlin informed Chairman Lindberg that he fears his career is over and he has lost his place in his chosen academic field. Mr. Carlin also speculates that Respondent will now attempt to have his Stoye Award revoked, but there is no evidence Respondent has made any move in that direction to date. After Mr. Carlin was interviewed in the complaint review process, Respondent substituted his name for Mr. Carlin's name as the "corresponding author" on one of their current joint research publications which had been pending since June. He did not remove Mr. Carlin's name as first author. Changing the name of the corresponding author is not an unusual occurrence with regard to academic publications. In this case, it may benefit Mr. Carlin in getting published, because Respondent is friends with the publisher. However, the effect of the name-switch is that Mr. Carlin has lost control over the correspondence, putting Respondent in a position to delay or take the publication out of sequence for printing, if he chooses to retaliate against Mr. Carlin. On September 18, 2001, a Predetermination Meeting was held at Respondent's request. On October 8, 2001, UF issued its decision to dismiss Respondent effective October 10, 2001. Even after termination, sometime in December, 2001, Respondent was cooperating with input for a second publication he and Mr. Carlin co-authored. He has, however, begun to investigate the data behind Ms. Pearce's and Mr. Carlin's papers presented at the 2001 ASIH Conference. According to Chairman Lindberg, who testified by deposition, Respondent breached his professional ethics and student mentoring responsibilities by his behavior at the ASIH conference with Ms. Pearce. According to Dean Jones, Respondent's conduct at the ASIH Conference was contrary to UF-IFAS expectations of a responsible faculty member's interactions with students and abused the faculty member-student relationship.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the University of Florida enter a final order ratifying its termination of Respondent effective October 10, 2001. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002.
The Issue This case is presented based upon an administrative complaint brought by Ralph D. Turlington, as Commissioner of Education, against Lloyd T. Cooper. The allegations set forth in this complaint pertain to the Respondent's conduct of serving alcoholic beverages to students and other minors below the age of 19 years. Respondent is also accused of inviting a student into his home, and while they were alone, serving an alcoholic beverage to her, which she drank in his presence. On this same occasion, Respondent is alleged to have given the student marijuana and to have kissed the student while in his apartment. These acts by Respondent purportedly are in violation of Subsection 231.28(1), Florida Statutes, in that Respondent is guilty of gross immorality and acts involving moral turpitude and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Nassau County School Board. Respondent's acts are said to be contrary to Rule 6B-1.01, Florida Administrative Code, by his failure to achieve and sustain ethical conduct. Finally, Respondent is accused of a violation of Rule 6B-1.06(3)(a)(e) and (h), Florida Administrative Code, in that he has failed to make a reasonable effort to protect a student from conditions harmful to learning or to health and safety; has intentionally exposed a student to unnecessary embarrassment or disparagement; and has exploited a professional relationship with a student for professional gain or advantage.
Findings Of Fact This case was heard based upon Respondent's request for a formal Subsection 120.57(1), Florida Statutes, hearing to allow him to dispute the facts that underlie the administrative complaint. Respondent holds Teacher's Certificate No. 306317, which allows him to teach in secondary education in the areas of physical education, health education, and science. The teacher's certificate issued by the State of Florida, Department of Education, is valid through June 30, 1986. Respondent has been certified as a teacher in Florida since 1971. See Petitioner's Exhibit No. 1 admitted into evidence. From August 20, 1971, until his resignation in June, 1982, Respondent was employed as a classroom teacher by the Nassau County School System in Nassau County, Florida. In 1982, a week prior to the graduation of members of the senior class of Fernandina Beach High School, various graduation parties were held. Respondent held one of those parties at his apartment. That party occurred on Friday, May 21, 1982. There were no other teachers or adults in attendance at the party. A number of students who were still attending high school were invited to the party and Terri Jones, now Terri Coleman, was among those students. She attended the party, having been provided a map by Respondent to enable her to find his home. The location of Respondent's home at that time was in Fernandina Beach, Florida. This was the first occasion that Coleman had visited Respondent in his apartment. Coleman arrived at the Respondent's apartment around 8:00 p.m. on May 21, 1982. She stayed for approximately 45 minutes. When she entered, there were approximately 10 other high school students in attendance. Respondent was mixing alcoholic drinks for those students during the party. He offered to give Coleman an alcoholic beverage, but she declined. Cooper and other students were also smoking marijuana, which was retrieved from a container on a coffee table in his apartment. On the following Monday, May 24, 1982, Coleman attended another house party given by fellow students in the high school. There were approximately 50 persons at this party, including students of Fernandina Beach High School and other students. Respondent was in attendance; however, other teachers were not involved in the festivities. Coleman arrived at the party around 9:00 p.m. and stayed for approximately 30 minutes. Cooper was again observed mixing drinks which contained liquor. These drinks were served to students at the party. On Wednesday, May 26, 1982, Coleman attended another party for students in her high school. This date was prior to her graduation from Fernandina Beach High School. Coleman arrived at this party at around 7:00 p.m. Once there, she had someone purchase a six-pack of beer, and she drank two or three of those cans of beer while at the party. She remained at the party for approximately 2 hours. Later on, the evening of May 26, 1982, at approximately 9:00 p.m., she went to the home of the Respondent. She was uninvited. [In the way of background, Respondent did not teach classes in which Coleman was a student. He had coached an athletic team in which Coleman was a participant in her junior year in high school. He had also expressed his desire to ask her out for a date when she reached her majority. This had occurred while she was a student attending high school prior to May 26, 1982. On one other occasion, when Respondent had arrived at the high school under the influence of an alcoholic beverage, Respondent saw her and took her from the room where she had been observed and walked around the school grounds with her. Finally, in that instance, they went to the Respondent's classroom in the back portion of that area and he kissed her.] Respondent admitted Coleman to his apartment on the night of May 26, 1982. Once inside, she explained that she had just stopped by to "say hello for a minute". While in the apartment, Respondent and Coleman watched television, and he asked her if she wanted a mixed drink. She replied that she did not because she would drink her beer. Nonetheless, Respondent mixed a drink for Coleman which contained an alcoholic beverage. She drank part of the mixed drink. The container with the marijuana was still located on the coffee table, as was the case on May 21, 1982. Respondent removed marijuana from that container and began smoking the substance and offered it to Coleman who accepted the marijuana. The marijuana was being smoked through an apparatus containing water. Coleman also drank two more cans of beer while at the apartment. Finally, while seated on the couch, Respondent kissed Coleman as many as five times on the mouth. After staying for approximately an hour, Coleman took her leave. At no time during her visit to the apartment, did Respondent ask Coleman to leave or attempt to contact her parents. When she left his apartment, she was substantially influenced by the effect of substances consumed. Notwithstanding her condition, Respondent allowed her to drive. Coleman went home after stopping at the house where she had attended the party earlier in that evening. She stayed in that house for approximately 10 or 15 minutes on her second visit. Coleman was confronted by her mother after arriving home on the evening of May 26, 1982, and her mother found her to still be suffering from the effects of substances consumed. After questioning, Coleman's mother ascertained that her daughter had been to the home of Respondent and learned of the events that had transpired while Coleman was there. As a result, Mrs. Jones went to the high school and spoke to the Respondent. She identified herself as Coleman's mother, and gave her rendition of the events of the evening of May 26, 1982, which had been told to her by her daughter. At that time, Coleman was 18 and Respondent, in the face of that fact, did not seem impressed with the possible consequences that might occur if members of the Nassau County School Administration learned of his indiscretion. Jeanette Jones, Coleman's mother, advised Cooper that she was going to speak to the Superintendent of Schools, Craig Marsh, concerning the liaison between Respondent and Coleman. Mrs. Jones spoke to superintendent Marsh, and Marsh conducted an interview with Coleman. In that interview, Coleman related the events that transpired in the apartment of Respondent on May 26, 1982. In a subsequent conversation with the Respondent, Cooper told Marsh that Coleman had gone to his house on the night in question and he had invited her in and mixed her a drink and they smoked marijuana and sat on the couch and "smooched". Out of this conversation, Respondent submitted his resignation from his position with the Nassau County School Board. Marsh correctly asserts that Cooper's acts with Coleman have caused Respondent to lose his effectiveness as a teacher in the Nassau County School System. Furthermore, Marsh would not recommend that the Respondent be allowed to teach in high school either in Nassau County or any other school system in the State of Florida.
