Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
Findings Of Fact Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega High School during the 1976-1977 school year. Thereafter he was reassigned as one of three deans of students at Pinellas Park High school, and he served in this capacity during the 1978-1979 school year. Moses Green has been in the field of education since his graduation from Florida A & M University more than 21 years ago. After teaching several years in South Carolina and Georgia he came to Boca Ciega High School in Pinellas County in 1964 where he started as a teacher. He served as dean of students at Boca Ciega High school from 1974 until 1977 when he was transferred to Pinellas Park High School as a dean of students. In October 1976 enroute from his home to school in a vehicle described both as a van and a motor home, Respondent stopped to give a ride to Jacqueline Blackshear and Stephanie Bellamy, two ninth grade students at Boca Ciega High School. When they entered the van Jackie sat on the housing covering the engine between the two front seats facing the rear of the van and Stephanie sat in the front right-hand passenger's seat. Enroute to school Respondent commented that Jackie was growing up and placed his hand on the inside of Jackie's thigh. At the time, Jackie was enroute to school for cheerleader practice and was wearing shorts. Jackie looked and moved towards Stephanie and Respondent removed his hand. Before arriving at school Respondent again placed his hand on Jackie's thigh and removed it when she moved. Upon arrival at school Respondent told Stephanie to get out as he wanted to talk to Jackie. When Stephanie left the van, Respondent was standing facing Jackie whose back was to the closed door. Respondent grabbed Jackie and attempted to kiss her. She pushed away, opened the door and left the van. When she left the van, Jackie was upset and Stephanie suggested she tell her parent. Near noontime Jackie went to Gail Weston, a physical education teacher at Boca Ciega High School and told her about the incident in Respondent's van. Stephanie accompanied Jackie on this visit. Ms. Weston described Jackie as nervous and upset. After a few minutes of conversation Ms. Weston realized that it was not something she could handle and she told Jackie and Stephanie that they needed to tell their story at the Dean's office and she took them to Jean Johnson, a dean of students at Boca Ciega High School. There both girls told their story to Ms. Johnson who prepared a statement for them to sign. The story repeated to Ms. Johnson was essentially the same told to Ms. Weston. After typing up their statements, Ms. Johnson told Mr. Demps, the principal. He had the girls brought to him, where the story was again repeated. Demps called Respondent in and confronted him with the story. He also advised his area superintendent and the director of personnel, who investigated the allegations made by these two girls. Demps also arranged for a meeting with Jackie's and Stephanie's parents the following day. Following the investigation, Green, on October 19, 1976 was issued a letter of reprimand (Exhibit 1) for his role in the events that had come to the school's attention regarding the two girls noted above and warned that a recurrence of such conduct would result in dismissal. By letter dated 9 November 1976 Respondent was sent another letter (Exhibit 2) regarding a reported and inappropriate remark made by Green to another female student, which Respondent had denied, and the letter suggested Respondent and the girl take lie detector tests. By letter dated December 29, 1976 (Exhibit 3) the Superintendent of Schools advised Respondent that the results of the polygraph test he had voluntarily taken indicated his answers were deceptive, while the girl's polygraph test indicated her responses were honest. Respondent was placed on probation for the remainder of the 1976-1977 school year and for all of the 1977-1978 school year. Although his principal at Boca Ciega High School, Mr. Demps, considered Respondent's effectiveness at Boca Ciega High School seriously impaired by the notoriety given to the events involving Respondent in 1976, he remained at Boca Ciega High School for the remainder of that school year. For the school year 1977-1978 Respondent was transferred to Pinellas Park High School as dean of students. Upon his transfer to Pinellas Park High School, Demps gave Respondent a good evaluation report. During Respondent's first year at Pinellas Park High School, no incidents were reported to form the basis of any of the charges here considered. This school year 1977-1978 included the probation period set by Exhibit 3. The school year 1978-1979, while Respondent was dean of students at Pinellas Park High School, produced the majority of complaints and testimony at this hearing regarding improper comments made to female students by Respondent, improper contact of a sexual nature with female students by Respondent, and corroboration of this testimony by other witnesses. Ten female students who attended Pinellas Park High School during school year 1978-1979 testified against Respondent regarding incidents between Respondent and these students of a sexual nature. Some of these incidents involved contact or attempted contact such as hugging, kissing or attempting to kiss, touching breasts or attempting to do so, and rubbing the front of his body against students' backsides when passing them when adequate room for passing without contact existed. Several testified to improper comments made to them by Respondent such as "You have a nice set of tits," "I'd like to get in your pants," "You have a nice pair of legs," "Why don't we go to a motel," "You drive an old man crazy," "You have a nice butt and look good in those pants," "One of these days it's going to be you and me," and similar comments regarding female students' anatomy. Much of this testimony was corroborated by other witnesses who overheard the remarks or observed the bodily contact. Additionally, some of the witnesses had complained to their parents or to other faculty members shortly after the incidents. Others first came forward with their complaints when they learned the police were investigating Green's conduct at the school and they became convinced their isolated incidents wouldn't appear unbelievable. Some of these students tolerated and perhaps encouraged the comments to provide them leverage to insure a cover-up for numerous "skips" of classes. Some of these witnesses skipped classes without punishment due to Respondent's position as dean and to whom their infractions were referred. Respondent denied each and every testimonial utterance of misconduct on his part while admitting the situation described by the witnesses, in which the improper actions of Respondent were said to have occurred, were real. During his testimony Respondent referred to school records which would corroborate his testimony, but he made no effort to produce these records or to account for their non-production. Respondent was subjected to three criminal trials on charges stemming from allegations of fact similar to those testified to in these proceedings. He was acquitted on charges alleging battery and false imprisonment and convicted of the offense of attempting to contribute to the delinquency of a minor. Those trials resulted in considerable publicity and the allegations became well-known throughout the Pinellas County School System. Several witnesses testified that Respondent's effectiveness in the Pinellas County School System was totally destroyed by virtue of the notoriety gained by Respondent due to this adverse publicity.
The Issue Whether Respondent is guilty of gross insubordination, misconduct in office and absent without leave as more fully alleged in letter dated November 7, 1989.
Findings Of Fact At all times relevant hereto Joseph A. Tourney held an Educator's Certificate from the Florida Department of Education (Ex. 1) and has been on continuing contract since 1972 with the Pinellas County School Board (Ex. 2). He has taught in the Florida School System for approximately 20 years with the last 14 years at Pinellas Park High School (PPHS) as a social studies teacher. As early as 1970, while a teacher at Lakewood Senior High School, Respondent's negative attitude toward strict compliance with school policies was noted (Ex. 9). Much of this attitude was exhibited by arriving later than and departing prior to the time designated for teachers to be at the school (Ex. 10). Following a review of Respondent's evaluations and conferences with him regarding his attitude respecting school policies and procedures to which Toumey did not agree, a recommendation was made by the Principal at Lakewood that Toumey be transferred (Ex. 12). Toumey was transferred to Largo High School. No problems were reported regarding Toumey during his tenure at Largo. When Pinellas Park High School opened circa 1976 Toumey was transferred to that school. Hugh Kreiger was principal at Pinellas Park High School. Krieger was a hands-on administrator who closely observed those under his supervision. The first time he observed Toumey depart school early he called him in and assigned Toumey permanent parking lot duty which required Toumey's presence at the parking lot until after the designated departure time. For the next five years no further problem was noted regarding Toumey's punctuality at school. Krieger was replaced by Louis Williams and Toumey's attendance problems resumed. After repeated warnings about leaving school in the afternoon prior to the scheduled departure time for teachers (30 minutes after students are released) and a conference between Williams and Tourney, Williams requested a conference with Tourney and John Mixon, Director of Personnel Services for the school board. This conference was held October 14, 1982 (Ex. 13). During this conference Respondents's early departures from school, his attitude toward school policies to which he disagreed, and his insensitivity to students was discussed and Tourney was advised that improvements in these matters was expected. By memo dated February 28, 1983 (Ex. 15) Williams noted several occasions where Toumey had departed school early and Tourney was charged with one-half day's leave and given a written reprimand. A subsequent documentation of Tourney leaving school early is contained in a memo dated November 7, 1986, from Williams to Tourney (Ex. 16). On September 21, 1987, Nancy Blackwelder, Assistant Principal at PPHS, submitted a memorandum to Tourney memorializing a conference with him in which he was again reminded of his need to improve in classroom atmosphere conducive to learning, judgment, and routine duties; and noting that if he failed to perform routine duties he would receive a written reprimand (Ex. 17). On October 8, 1987, a conference was held between Tourney; Nancy Zambito, who replaced Dr. Mixon as Director of Personnel Services; the principal of PPHS, M. Heminger; and a union representative. The summary of this conference is contained in a memo from Zambito to Tourney dated October 3, 1987, (Ex. 18). In this conference Tourney's inappropriate behavior in class involving his participation in a program adopted by the school, Patriot Educational Partners (PEP), was discussed, Tourney was again reminded of the need to support school board policies and programs in his contact with students, and Tourney agreed to improve. In November 1987 Tourney and the School Board entered into a Stipulation and Agreement (Ex. 19). In this Agreement Tourney acknowledged that he had been given less than satisfactory evaluations for the school years 1970-71, 1982-83, 1983-84, and 1986-87, that he had received numerous counseling sessions to discuss his failure to adhere to established school procedures and his negative comments to students. He also acknowledged that during the 1987-88 school year while assigned as advisor to a group of students with whom he is supposed to meet for five minutes each morning, he has frequently been late; that he referred to this program in the presence of students in negative and profane terms; and on one occasion he threw financial aid papers in the trash can and told students they could get them from there if they wanted them. For these infractions Tourney agreed to a suspension without pay for five days. He also acknowledged that further infractions may lead to a recommendation for his dismissal. In his testimony at this hearing Tourney averred that most of the students who were given financial aid applications threw them on the floor from which they had to be picked up and placed in the trash baskets, and that he was merely shorting the process by throwing these applications in the trash can rather than pass them out to the students who would throw them on the floor. On May 9, 1989, Respondent was issued a letter of reprimand (Ex. 20), by Principal Heminger for inappropriate conduct in his class during a visit to the class by members of the committee conducting a ten-year evaluation of the PPHS for accreditation during the period of April 25-28, 1989. In this reprimand he was also found to have arrived late at the final meeting of the Visiting Committee and to have returned from lunch with the odor of alcohol on his breath. On September 12, 1989, a conference was held between John Reynolds, Assistant Principal at PPHS and Tourney to discuss Tourney's 1988-89 evaluation. This conference is memorialized in memorandum dated September 19, 1989, (Ex. 21). The areas in which improvement is expected in the evaluations are attitude, judgment and routine duties. October 13, 1989, was an in-service day for teachers. This is a normal school day which only teachers attend. It was one of several similar days during the school year that teachers hold meetings, catch up on the grading of papers and perform tasks other than conducting classes for their students. It is a day all teachers are expected to be present at school. At PPHS in-service days have always been more informal than regular school days and in the past teachers have departed early once their tasks were completed. Prior to 1988 there had been no sign-in sheet for teachers at PPHS but such a procedure was instituted and in effect for the in-service day of October 13, 1989. Respondent appeared at school on October 13, 1989, as required but slightly late. Around 9:00 a.m. he received a telephone call from his good friend and fellow teacher in the social studies department, David Smith, who told respondent that he, Smith, had just awakened after not having slept well during the night, and Smith requested Respondent to sign him in and he would arrive shortly. Respondent did so. After making the call, Smith went back to bed and when he again awoke it was afternoon and he realized he was suffering from flu-like symptoms and was too sick to go to school. Several people were aware that Smith did not report to school on October 13, 1989 and reported same to the authorities. When confronted with the accusation both Tourney and Smith denied that Tourney had signed Smith in and that Smith was not at school that day. When he finally acknowledged his absence from school on October 13, 1989, Smith was suspended for three days without pay. The October 13, 1989, incident was the culmination of a long history of Respondent's failure to comply with school policies and directives, to "trash" school programs to which he did not agree, and to be in the forefront of rebellion against such programs and policies which led to the proposed action of the school board to dismiss Respondent from his continuing contract as a teacher in the Pinellas County school system at the expiration of the 1989-90 school year.
Recommendation It is recommended that Joseph Tourney be dismissed from his position as a continuing contract teacher in the Pinellas County School System at the conclusion of the 1989-90 school year. DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Scott N. Rose, Superintendent Pinellas County School Board Post Office Box 4688 Clearwater, FL 34618-4688 Bruce Taylor, Esquire Post Office Box 4688 Clearwater, FL 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, FL 33675-0638
Findings Of Fact Petitioner has been an employee of HRS for more than seven years. She has cerebral palsy and uses a motorized wheelchair. During her tenure with HRS, she worked initially as a CETA employee under the supervision of Timothy Myers. She was a Social Work Assistant in a para-professional position requiring minimal paperwork. She did very well and had no problems with her supervisor or cc-workers. She received a promotion to the position of AFDC worker under the supervision of Ann Hauckes in October, 1979, and worked in the HRS Suncoast office in St. Petersburg for approximately six months. During that six-month period, she had problems completing the "on-call" and workload responsibilities of an AFDC worker and was placed on conditional status. Due to her unhappiness with her supervisor and her conditional evaluation, she was transferred from the HRS Suncoast office in St. Petersburg to Pinellas Park under the supervision of Theresa Ruppel. Ruppel supervised Petitioner from March, 1980 to January, 1982. Ruppel was instructed by her superiors to give Petitioner a limited caseload so that Petitioner could perform her job duties as an AFDC counselor, and Petitioner was given a specialized caseload of AFDC foster care cases which required limited client contact and the use of small, lightweight files. Petitioner continues to be assigned a minimal workload of substantially less than other AFDC workers. She is evaluated just within her special work assignment and not within the responsibilities of an AFDC worker. When Petitioner first came to Ruppel's unit, she brought with her unfinished "on-call" work which Ruppel had to transcribe for her. During Petitioner's tenure under Ruppel, she served only as a backup "on-call" worker. Ruppel found Petitioner to be a very difficult employee to supervise. Petitioner had emotional outbursts as a worker in Ruppel's unit but received no disciplinary action, even when on one occasion she left the work site after having an emotional outburst and refused to advise the supervisor as to why she was leaving or when she would return to work. After Ruppel transferred out of the Pinellas Park Service Center, Susan Gilbert became Petitioner's supervisor from January, 1982, until January, 1984. The initial working relationship was good. Gilbert rearranged her office so Petitioner's wheelchair moved easily within it. Gilbert assisted Petitioner by updating Petitioner's policy manual, by making an easy reference chart for Petitioner so that every time Petitioner needed something, she did not have to pull out the HRS manual and read it but could just refer to the chart. Gilbert even assisted Petitioner with a case in which the written narrative had been accomplished by Petitioner, by taking the computer document apart, stapling it, and organizing it so it could be put in the filing cabinet. Gilbert also assisted Petitioner in preparing for the recertification test that all AFDC counselors must take. Gilbert made up some exercises to help Petitioner take the test. She allowed Petitioner 8 hours in which to take the 4 hour test. When Petitioner failed the test, Gilbert gave her 12 hours in which to take it again. The relationship between Gilbert and Petitioner deteriorated when, in March or April of 1982, Petitioner invited Gilbert, her supervisor, to take two days of annual leave and a weekend to accompany Petitioner to a Miss Wheelchair pageant, an invitation which Gilbert declined because she did not want to have a personal relationship with any person she supervised. The relationship then deteriorated, with Petitioner calling Gilbert a snob for refusing to go to the Miss Wheelchair pageant and accusing Gilbert of not liking her due to her handicap. Thereafter, there were emotional outbursts by Petitioner over minor matters. Petitioner served as a backup "on-call" person under Gilbert until December of 1982, when she was removed because she had complained about the amount of paperwork and she did not want to be "on-call" on Fridays. Petitioner was put back on "on-call" duty in June, 1983, due to Petitioner's complaints, and she worked "on-call" with her friend Frances Whittle who was willing to help Petitioner with those duties until Petitioner was moved out of Gilbert's AFDC Unit in January, 1984. Between January, 1983, and December 5, 1983, Petitioner would not accept authority or supervision from Gilbert. Petitioner questioned every decision Gilbert made. She would leave Gilbert's office upset and come back in a matter of minutes, arguing with her supervisor. The problem in the working relationship between Petitioner and Gilbert resulted in high-level District Administration meetings to determine how to resolve the problem. Initially, in early 1983, the high-level District officials met to determine how they could resolve the conflict, and the Deputy District Administrator suggested transferring Petitioner to the Clearwater AFDC Unit under a new supervisor. Petitioner opposed being moved to the Clearwater office, and so the Department did not move her from Pinellas Park to Clearwater. Both Gilbert and Petitioner agreed to try to resolve any problems on their own. As 1983 went on, the work relationship again deteriorated which again resulted in the District Administrator, Deputy District Administrator, Personnel Officer, Gilbert, Petitioner and the Human Services Program Administrator meeting to see if they could resolve the deteriorated relationship. There was a meeting on December 5, 1983, with those persons and another meeting on December 12, 1983. On December 5, 1983, four options were presented to Petitioner: (1), transferring Gilbert to another unit if HRS could find another supervisor willing to trade positions with her; (2), transferring Petitioner to a position in St. Petersburg under a different AFDC supervisor; (3), allowing Petitioner to work at home and equipping her office at home with all the rehabilitation equipment necessary to do her work, under which option she would only have to be involved with Gilbert once a week to have her work reviewed; and (4) having Petitioner stay at the Pinellas Park office but transferring her supervision away from Gilbert, with Petitioner being supervised long distance by Karen Raym Girard who would then drive, initially from Suncoast in St. Petersburg and, when the Wildwood Service Center opened, from the Wildwood office in St. Petersburg once a week or as often as was needed by Petitioner. Option 4 was the option chosen by Petitioner at the December 12 meeting. 2O. The effective date for the transfer of supervision from Gilbert to Karen Raym Girard was to be effective January 3, 1984. Subsequent to December 12, 1983, but before January 3, 1984, Petitioner changed her mind and did not want option 4. Petitioner requested a third meeting with the District Administrator after she had changed her mind about the option she had selected. The District Administrator declined a third meeting and told Petitioner that she could institute an internal grievance if that is what she wanted to do. When the District Administrator did not have yet another meeting, Petitioner filed an internal HRS grievance. Before the grievance committee met, the transfer of supervision did take place on January 3, 1984. During the period January 3, 1984 until February 10, 1984, Petitioner decided she was being segregated because she was working in the Pinellas Park office but was being supervised by Girard who was located in the Suncoast office in St. Petersburg. Petitioner's feelings of segregation were based upon the fact that she was taken off "on-call" duties in Gilbert's office because she was no longer a member of that unit; her name was removed from Gilbert's bulletin board showing the names of the persons in Gilbert's unit; and there was a sign placed on a vacant office in the building reserving it for Girard to use when her supervision of Petitioner required. While Petitioner was under the supervision of Girard from January 3, 1984, until February 10, 1984, Girard had weekly conferences with Petitioner where Girard would come from St. Petersburg to Pinellas Park to the office assigned to her in the Pinellas Park Service Center. Petitioner told Girard that she wanted Gilbert to be a personal friend with her and associate with her after working hours, and that she felt that Gilbert did not like her because Gilbert did not pursue being a personal friend of hers. During the time that Girard supervised Petitioner, she found Petitioner very difficult to supervise. Petitioner would lose her temper, raise her voice, or lose emotional control. The main issue Petitioner always wanted to discuss with Girard was that she wanted Gilbert to be friends with her. Petitioner did not want to discuss work-related issues with Girard. From February 10, 1984 until August 31, 1984, Petitioner was on extended leave -- annual leave, sick leave, and leave without pay. She never physically transferred to Wildwood in St. Petersburg, although her office furniture was moved there while she was on leave. The HRS internal grievance committee consisted of one member of Petitioner's choosing, one of HRS' choosing, and one agreed upon by both HRS and Petitioner. The internal grievance committee found: that an irreconcilable personality conflict existed between Gilbert and Petitioner; that the conflict was based on Petitioner's desire for a relationship that was personal as well as professional and Gilbert's inability to provide that relationship; that Petitioner did not have any problems with performing her job duties and was rated above satisfactory (it did not mention that Petitioner was only evaluated against her own performance) that considerable efforts were made to try to improve and clarify the relationship between Gilbert and Petitioner; that those efforts were not successful and the situation deteriorated rather than improved; that four options or solutions were discussed with Petitioner; that Petitioner participated in the selection of the option to remain in Pinellas Park but transfer her supervision, and that she agreed to that option; that subsequently she experienced a feeling of segregation and decided that the option was not in her best interest; that due to her physical location and supervision, she was segregated from her unit; that the committee was unable to substantiate any instance of discrimination due to Petitioner's handicap on the part of management; that she had been afforded special accommodations due to her handicap not normally given employees; that Petitioner's proposed solution was to return to her previous unit for a 90-day trial period during which all parties should work to improve the relationship. On February 9, 1984, the internal grievance committee recommended that: Both Petitioner and Gilbert be referred to EAP, Petitioner for counseling and more realistic expectations in dealing with management/employee relationships and Gilbert for sensitivity training in dealing with employees with special needs. Petitioner be physically transferred to Girard's unit when the HRS move to the Wildwood Service Center was made for the following reasons: Petitioner was experiencing segregation which could only be alleviated by physically locating her with the unit of which she was a member. The personality conflict between Gilbert and Petitioner could not be solved. The situation was detrimental to Petitioner's emotional and physical well being. By waiting to relocate Petitioner at the time of the HRS move to Wildwood, she would not be singled out as being moved because of a problem. Moving her when others were also being moved would afford her the opportunity to naturally interrelate with staff experiencing the same action. It was hoped that would facilitate her adjustment to her new service center. The Wildwood facility could easily be made accessible for her and a room could be adapted to her needs. Wildwood is on the Interstate and, therefore could be reached from Petitioner's home within a reasonable time frame. In the future, District Management should make every effort to afford Petitioner treatment consistent with treatment afforded all other employees. Special considerations given in the past had exceeded reasonable accommodation and had led Petitioner to have unrealistic expectations and difficulty in adjusting to the normal work setting. The many special considerations had not been to her benefit and, in fact, had been a disservice to her. On February 23, 1984, Petitioner's position was transferred from Pinellas Park to St. Petersburg. The District Administrator accepted the recommendation of the internal grievance committee and agreed to transfer Petitioner from Pinellas Park to Wildwood in St. Petersburg when Wildwood opened in the spring of 1984. The District Administrator was satisfied that Petitioner could drive from Pinellas Park to St. Petersburg where she had previously worked. Petitioner was very unhappy with the HRS internal grievance committee recommendation because she did not want to be transferred from Pinellas Park to St. Petersburg where she had formerly worked. Her preference at that Point was that the District place her back under the supervision of Gilbert and that they attempt to work out any relationship problems. When Gilbert transferred away from her supervisory position in Pinellas Park to a counseling position in the Central Licensing Unit in June, 1984, HRS offered Petitioner the opportunity of coming back to Pinellas Park with a new supervisor, Lawrence R. Raym. Raym supervised Petitioner from July 1, 1984, until February, 1985. During that time, Petitioner's temper tantrums continued. It was estimated that her caseload only took from 2 to 7 days to accomplish each month. Susan McPhee supervised Petitioner from March of 1985 until September of 1986 and also had problems with Petitioner's general acceptance of supervisory authority. During McPhee's supervision of her there were times when Petitioner would not like what McPhee told her and would abruptly terminate the conference by simply wheeling out of the room in anger. Martin Ademy became Petitioner's supervisor in October of 1986 when this case was initially scheduled for final hearing. Ademy has not had any difficulty in supervising her. Ademy estimates that it should take her between 10 to 12 days a month to do the work assigned to her. Any work she does not complete is assigned to another AFDC counselor. Ademy does not have Petitioner do "on-call" work because, in his opinion, she cannot handle those duties. Although Petitioner has applied for some unidentified promotions which she has not received, there is no evidence that Petitioner is able to perform the duties of those unidentified positions with reasonable accommodations being afforded her. Additionally, some of those positions were at locations to which Petitioner had refused to be transferred. Respondent has not discriminated against Petitioner based upon her handicap and has not retaliated against her in any way. HRS has provided Petitioner with much more than reasonable accommodation. To the extent that HRS has treated Petitioner differently than other employees, it has been through pampering rather than discrimination or retaliation. Petitioner has not suffered any physical or emotional illness as a result of any conduct on the part of Respondent. Although Petitioner testified that her absence from work from February until August, 1984, was due to illness brought on by Respondent's discrimination and retaliation, her testimony is simply untrue. Petitioner became ill while she was on annual leave. The minimal medical attention she received was for long- standing medical problems. Although Petitioner had provided HRS with reports from her doctor indicating her medical problems were work-related, those opinions were not those of her doctor. Rather, those reports were "doctored" by Petitioner herself before she gave them to HRS.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent has not discriminated or retaliated against Petitioner and dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE and RECOMMENDED this 9th day of July, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1987. COPIES FURNISHED: Beverly L. Lassor 6333 81st Avenue North Pinellas Park, Florida 34665 Barbara Ann Dell McPherson, Esquire Department of Health and Rehabilitative Services 2255 East Bay Drive Clearwater, Florida 33546 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact At all times pertinent to the allegations herein, Respondent, Alvin H. Dana, held Florida Teaching Certificate 100407 qualifying him in the areas of social studies, guidance, junior college, school psychology, and administration and supervision at the elementary, secondary, and junior college level. During the period pertinent hereto, Respondent was employed as a guidance counselor at TSHS in the Pinellas County School District. He resigned from that position in April, 1987 after having been employed there for the 1986- 1987 school year. During the 1986-1987 school year, Jeffrey Moore, age 16 or 17, was an 11th grade student at TSHS. In early April, 1987, Nancy Zambito, Director of School Operations for Areas 1 and 2 of the Pinellas County Schools, and previously Director of personnel Services for the District, received a phone call from a school board member who related that he had received a call from a minister who had related to him that a student at TSHS, Jeff Moore, had a sexual encounter with the guidance counselor at that school, Alvin Dana. Ms. Zambito met with the student, who now resides in Tennessee and who did not testify at the hearing, and his mother on April 6, 1987. During the conversation, Moore stated he had gone in to talk with the Respondent because his parents were in the process of getting a divorce and because he was having some problems with his own sexual identity, a condition not further explained. During this conversation, Respondent allegedly mentioned a bar in Dunedin which Moore knew to be a gay bar. At this point, Moore had to leave Respondent's office to go back to class, and Respondent allegedly asked him to meet him after school, which Moore did. When they met, according to Moore, Dana took him to his, Dana's, apartment, which Moore described, gave him a drink, and then initiated sexual contact with him by kissing him. Moore relates they went into the bedroom and had a sexual relationship. Afterward he claims, they cleaned up, had dinner at a restaurant, and then went to a bar where they had a beer. At about 8:30 P.M., Respondent returned Moore to his own car to go home. That was the only sexual encounter they had, but Respondent allegedly talked to Moore about going with him to Jacksonville. After meeting with Moore and his mother, that same day Ms. Zambito met with Respondent in the principal's office along with the Area 1 Supervisor, the Principal, and a union representative. During the meeting, which, according to Ms. Zambito, took between 45 minutes and an hour, she asked all the questions and in no way, she claims, attempted to place any influence or pressure on Respondent. She explained the complaint from Moore to Dana without telling him who the student was. It was obvious to her, however, that Respondent knew who the student was and, in fact, named him, but denied any improprieties with Moore who, according to Dana, had accused his own pastor of being gay. Ms. Zambito states that Respondent later admitted to her that he had taken Moore to the bar and to his apartment and had provided alcohol to him, in addition to admitting to a sexual relationship with the student. As to that aspect, she claims, Dana contended Moore was the aggressor. Mr. Coe, the Principal, and Mr. Kreiver, the Area Superintendent, who were both present at the meeting with Dana, tend to support Ms. Zambito's testimony. Both claim Dana admitted to having an "affair" or "sexual relationship" with Moore when she confronted him. As a result of this conversation, Ms. Zambito advised Respondent she would report the information to the Superintendent at which point, Respondent indicated he would resign. In fact, Respondent did resign the next day before Ms. Zambito could contact the superintendent. However, she prepared a memorandum of the conference, and mailed the original to the Respondent at his address of record. Ms. Zambito is not sure he received it, but it was not returned. Respondent denies having received it. On September 11, 1987, Mr. Dana pled nolo contendere in the County Court of Pinellas County to one charge of child abuse by furnishing Moore with alcoholic beverages. He was ordered to pay a fine of $250.00 and, inter alia, directed to not engage in teaching or in any other profession where minors will be without disclosure of the conviction to proper authorities. Respondent was a teacher in Sarasota County for ten years and served as a college registrar for seventeen years before his one year in the Pinellas County schools. In all his twenty-eight years in education, he has never been accused of improprieties with students and denies being either bisexual or homosexual. Dana admits to pleading nolo contendere to providing alcohol to a minor and understands that he was found guilty. However, as to the incident in question, he relates a somewhat different story than that reported by Ms. Zambito. He contends that one school day Moore came to him as guidance counselor and related he was having a sexual identity problem, describing himself as a "flaming faggot." Moore said he was considering running away and told Respondent stories of sexual relations he had had with someone in Port Richey at a MacDonald's restaurant. He also mentioned a place in Dunedin where he would go for sex with men. As a result of his conversation with the boy, Respondent feels he convinced him not to run away. After school that day, however, Moore was waiting for him in the parking lot and stated that he needed to talk with him more. Respondent agreed and they went to a restaurant and to a bar where they had two beers for which Respondent paid. On cross examination, Mr. Dana admitted that he took Moore to two bars, The Pro Shop and The Flamingo, both of which were gay bars, and at both of which he bought Moore a beer. According to Dana, the bars were chosen by Moore and Dana did not know they were gay oriented. While admitting to going to the bars and the restaurant with Moore, he denies going to his apartment or to Moore's house. On rebuttal, Ms. Zambito claims he admitted having been in Moore's house in response to her questions. Mr. Kriever recalls this as well. Respondent asserts there was no more to the relationship than his taking the boy for two drinks and while he admits he made a mistake in going with Moore and admits to paying for his beer, he unequivocally states he refused any attempts at sex initiated by Moore and claims none took place. Dana's story of the meeting with Ms. Zambito is somewhat different than hers. He recalls it as lasting ten minutes at the most as opposed to the forty-five minutes to an hour as she stated. He relates she suggested to him that he resign in lieu of being not reappointed the following year. He admitted to her that he went to the bar with Moore and admitted to a "relationship" with him but denies the relationship was sexual in nature, that he told her it was, or that he, at any time, ever had a sexual relation with any student. Dana admits that going to the bar with Moore was stupid but claims he went there out of curiosity. Moore is a very persuasive young man who claimed he wanted to be a journalist. When Moore called himself a flaming faggot, curiosity prompted Dana to go to the bar with him. This is a weak rationalization which does Respondent's position no good. Dana contends he had one or two previous visits with Moore, one of which involved Moore's mother. He believes Moore exaggerates and fantasizes. He describes Moore as a bright, articulate, convincing and conniving individual, and relates he was taken in by Moore's statement of need. Respondent claims Ms. Zambito never asked him if he had had sexual relations with Moore. She asked if he knew the student or could identify any student who would have made such allegations against him. Her questions were general in nature and he does not believe he would have admitted to any acts of sexual misconduct with Moore since he claims he committed none. According to Mr. Kriever, when confronted with the allegations against him, Respondent initially appeared shocked and denied the relationship. Later, he said it was forced upon him and finally, he admitted to a sexual relationship with Moore. The principal, Mr. Coe, related, however, that Dana did not deny the allegations but admitted to a "relationship" with Moore without Ms. Zambito even identifying him by name. These responses come to easily and are far too indefinite to be controlling. If the allegations against Dana are accurate, he would be ineffective in any position in the school district. Educators hold positions of trust and Respondent's actions, if established, constitute a forfeiture of this trust. In the opinion of the principal, Mr. Coe, as a guidance counselor, Dana holds a position of trust which this misconduct clearly violates. The same would be true regarding Respondent's status as a teacher. The trust that administrators and parents must place in anyone in education has been violated by Respondent's misconduct and Respondent could not serve within the system. All the evidence, except Respondent's testimony is in the form of hearsay testimony. Moore did not testify. Other than Respondent, no one who testified was privy to the conversations and relationships between the two or saw them together away from the school grounds. In the instant case, the only evidence that Respondent engaged in sexual activity with Moore comes from the hearsay comments made to Ms. Zambito by Moore who was not present at the hearing. Ms. Zambito's testimony as to Respondent's alleged admissions to a sexual relationship is, to a great degree, con- firmed by that of Coe and Kriever. On the other hand, Respondent unequivocally denies having had a sexual relationship with Moore. This is direct evidence from a party in interest. Considering the evidence as a whole, therefore, it is found that Respondent did provide alcoholic beverages to Moore, a minor, and he showed extremely poor judgement in engaging in an unchaperoned social relationship with a student outside of the school environment and outside of school hours, but the evidence is insufficient to find that he engaged in homosexual activity with him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's Florida Teaching Certificate be revoked for a period of three years. RECOMMENDED this 10th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2475 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1- 3. Accepted and incorporated herein. 4. Accepted and incorporated herein. 5. Accepted and incorporated herein except for the allegation that Respondent admitted to having sex with the student, which was not proven. 6. Accepted as a recitation of what the student told Ms. Zambito but not as dispositive of the issue. Further, the meeting took place not on April 27, 1987 but on the same day as Ms. Zambito's meeting with Respondent. 7. Accepted and incorporated herein. 8. Rejected as a recitation of testimony and not a Finding of Fact. 9. & 10. Rejected as it pertains to disregarding Respondent's denials. Balance rejected as a recitation of testimony and not a Finding of Fact. 11. & 12. Rejected 13. Accepted and incorporated herein For the Respondent Respondent claims his recitation of the facts is interwoven with his argument. Since they cannot be identified with specificity, they are not addressed individually. COPIES FURNISHED: J. David Holder, Esquire 325 John Knox Road Building C, Number 135 Tallahassee, Florida 32303 Lawrence D. Black, Esquire 152 8th Avenue Southwest Largo, Florida 34640 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a) of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida as alleged in Petitioner?s June 6, 2012, notice of recommendation of termination and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Lake County, Florida. Art. IX, § 4(b), Florida Constitution; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. §1012.22(1)(f), Florida Statutes. At all times relevant to this proceeding, Respondent was a teacher of K-3 students with Autism Spectrum Disorder (ASD). During the 2011-2012 school year, Respondent?s class had between two and seven students. Respondent holds a bachelor?s degree in elementary education and a master?s degree in special education. Respondent received her Florida teaching certificate in 2008. Petitioner has completed the coursework for the autism endorsement, but has not yet added it to her teaching certificate. Petitioner also received annual Crisis Prevention Intervention (CPI) training, which is a nonviolent crisis intervention and restraint training. CPI teaches ways to restrain or calm an autistic child when the child is “coming at you physically.” Respondent started her teaching career in Lake County in December 2008 at Eustis High School, where she taught ninth grade ESE students. She taught at the Spring Creek charter elementary school for the 2009-2010 school year, where she taught a self-contained K-6 class of approximately fifteen students having various disabilities. Respondent was hired at Fruitland Park Elementary School for the 2010-2011 school year, and was assigned to teach a K-3 level class for ASD students. Most of the students in Respondent?s class were kindergarten-level students. Respondent was retained at Fruitland Park Elementary School for the 2011-2012 academic school year pursuant to a professional services contract, entered on August 15, 2011, which provided that: The Teacher shall not be dismissed during the term of this contract except for just cause as provided in sections 1012.33, Florida Statutes, and such other provisions as prescribed by state law, School Board Policy, and the District?s Instructional Personnel Evaluation System. “Just cause” includes, but is not limited to the following: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude. Respondent received “acceptable” evaluations while at Fruitland Park Elementary School, which was the highest rating at the time. Respondent was the subject of no parent complaints. Respondent was well regarded as a good and effective teacher, firm in discipline, and knowledgeable in her field. Prior to the incidents that are the subject of this proceeding, Respondent was not subject to any disciplinary action. Students with ASD have difficulty controlling their behavior, often act out in a physical manner, and are frequently non-verbal. Respondent?s classroom was located in a portable classroom building. Thus, if a student was outside of the classroom, he or she was physically outside, and not in an interior hallway of a larger building. The classroom backed up to the PE field. Respondent was assigned one full-time and one part- time teacher?s assistant (TA) to help with her ASD students. Elizabeth Price was Respondent?s full-time assistant for the 2010-2011 and 2011-2012 school years. Ms. Price claimed that she was “verbally abused” by Respondent during the 2011-2012 school year as a result of an October 2011 discussion, initiated by Respondent and directed at Ms. Price?s “negative attitude.” Ms. Price was overtly critical of Respondent to others during the course of the school year, including the classroom behavior analyst, Ms. Rose. In addition to her testimony as to the criticism leveled at Respondent by Ms. Price, Ms. Rose testified as to her impression that Ms. Price wanted more independence to implement her own strategies, but that Respondent guided her “in staying with the protocols that she had in the classroom.” Ms. Rose?s testimony is not accepted to prove the truth of the matters asserted, but rather as evidence of Ms. Price?s feelings of ill-treatment at the hands of Respondent. Ms. Price testified that she felt unable to complain to the administration because Respondent “had a personal relationship with our assistant principal” and that, if she complained, her job would be in jeopardy. The testimony of Ms. Price as a whole, and her written statement provided to the school on May 2, 2012, leaves the undersigned with the distinct impression of a personal animus by Ms. Price against Respondent. The part-time TAs varied throughout the year. Sharon Rogers was assigned as a part-time TA to Respondent?s classroom at the beginning of the 2011-2012 school year. She was only in the class for a few weeks. Ms. Rogers was replaced by Lauren Atwood, who was in the class from September 27, 2011, to January 30, 2012, at which time she accepted a full-time position as a K-2 teacher for intellectually disabled students at Fruitland Park Elementary. Prior to being placed in Respondent?s classroom, Ms. Atwood had never worked in a unit with autistic children. During the time Ms. Atwood was in Respondent?s class, she never saw Respondent strike a student, never saw Respondent roughly handle a student, and never saw Respondent grab a student by an arm or leg. Ms. Atwood was replaced by Helen Johnson. Ms. Johnson was the part-time TA at the time Respondent was removed from the classroom. From November 2011 until late April, 2011, Lisa Bass was a TA in Jacqueline Dobbs? class for emotionally disturbed children. In late April 2012, Ms. Bass was assigned to replace Ms. Price as a TA in Respondent?s class. Ms. Bass was asked by Candice Benjamin, the Fruitland Park ESE specialist, to report anything “untoward and unprofessional” that happened in Respondent?s classroom. Ms. Bass testified that Ms. Benjamin?s request “was very cryptic” and that she felt as though she was acting “cloak and dagger.” Ms. Bass served as a TA for approximately five days, and on May 2, 2012, reported the conduct that resulted in Respondent?s removal from the classroom. The TAs were typically with Respondent at all times, and assisted with the “centers” where the students did their work. Respondent was, as a rule, alone with the students for no more than 15 minutes per day, when one TA would go to lunch, and the other would go to pick up lunches for the students, who ate in the classroom. During the times they were assigned to Respondent?s classroom, none of the TAs held teaching certificates, and none were certified in any behavioral specialties. In addition to the TAs, Respondent?s class was visited on a regular basis by a speech therapist. The speech therapist missed Respondent?s classroom visit at least once a month, and sometimes more, for reasons that varied. Since the absences often occurred on Wednesdays, Respondent tried to make alternative arrangements for a student who had her speech therapy on Wednesdays and who Respondent felt was being short- changed as a result. Respondent complained to the ESE specialist regarding the absences. In late April, 2012, the school decided to rotate TAs to different classes. Respondent felt that practice disrupted her classroom, which in some measure depended on stability and familiarity of the teachers to the students. Respondent complained about the practice in late April 2012. There were no complaints made against Respondent by her TAs or anyone else until Ms. Bass reported her complaint on May 2, 2012. No TAs complained until Ms. Dejarlais called them in for interviews. Ms. Nave, the Fruitland Park Elementary School assistant principal, observed Respondent in the classroom “many times”. She never observed Respondent engaging in any inappropriate behavior, including slapping, kicking, or grabbing of students. Ms. Linson, the School Board ASD Program Specialist, occasionally observed Respondent in the classroom. She never observed inappropriate behavior in Respondent?s classes. The notice of recommendation of termination that forms the basis for this proceeding alleged that Respondent “slapped, squeezed faces, and pulled forcibly on the arms of the students” and created “a culture of silence . . . in your classroom which discouraged other staff from coming forward with the allegations.” Allegations of Slapping Ms. Atwood testified that she saw Respondent slap one student?s hands “a few times.” The incidents occurred when a particular student took something that was not his, or tried to place his hands on or hurt another student. The slaps were not hard, and triggered no concern that the incidents should be reported. Other than slapping hands, Ms. Atwood knew of no other incidents of Respondent striking a student. Ms. Johnson testified that she observed Respondent slap a student?s hand on one occasion. The incident occurred after the student struck Respondent on the back. Ms. Johnson testified that Respondent slapped the student?s hand and said “don?t hit.” The incident left no mark on the student?s hand. Ms. Johnson did not contemporaneously report the incident. Ms. Johnson also testified that Respondent slapped a student?s hand when he pinched her nipple. Ms. Johnson understood the slap to be a reflexive reaction to the pain. The undersigned does not consider a mild human response to a personal and painful event to constitute a violation of the disciplinary standards at issue in this case. Other than the single incident of slapping the student?s hand in response to being struck on the back, Ms. Johnson never observed Respondent roughly physically handling any student. Ms. Price testified that, on one occasion during the 2011-2012 school year, Respondent slapped a student on the arm while engaged in a “tug of war” over a bin where the student sat. She stated that the slap was, in her opinion, harder than necessary. The slap left no mark on the student?s arm. Ms. Price could not recall when the alleged incident occurred, being unable to narrow it even to a six month window. Ms. Price did not contemporaneously report the incident. Respondent testified that she never struck a student. Respondent testified that she occasionally had to deflect student attempts to strike her, but that physical contact was done as an avoidance technique or when a student was perceived to be a threat to others. ASD teachers are taught to fend off attempts by students to strike the teacher or others by the use of blocking techniques in which the kicks and hits are deflected. The impression conveyed to the undersigned was one of a “wax on-wax off” motion. The attempts are physically blocked, and the target moved. Respondent testified that her attempts to deflect and redirect blows by pushing away a student?s hand could be conceived as a slap. Respondent testified that she is hit and kicked by her students almost as a matter of course. Her testimony was supported by that of Ms. Linson, who noted that ASD students frequently hit teachers, and Ms. Rose, who commented that Respondent turned her back to the students when they struck her, and as a result “often got hit in the back.” Respondent generally ignored the frequent incidents. The evidence as to the slapping of students? hands was contradictory. The analysis of the evidence was made more difficult by the fact that Respondent had specialized training in dealing with ASD students and the TAs had none, and by the fact that blocking techniques could be misconstrued as slapping by those unfamiliar with the intervention. The evidence indicates that at least some of the small handful of incidents were taken to prevent a student from harming other students. Nevertheless, Petitioner proved, by a bare preponderance of the evidence, that Respondent slapped the hands of one or more students in something more than a purely defensive or protective manner on, at most, a very few occasions, including the incident described by Ms. Johnson in which Respondent slapped the hand of a student after having been hit on the back. The evidence demonstrates such incidents were isolated and mild. There was no evidence introduced to support a finding that the incidents were harmful to any student?s learning, or that the incidents adversely affected any student?s mental or physical health, or their safety. Allegations of Squeezing Student?s Faces Two days after she was placed in Respondent?s classroom, Ms. Bass testified that she observed Respondent grab a child?s face. The incident purportedly occurred when a student was running with a toy. Respondent wanted the student to settle down, which he would not do. The student fell and began to cry. Ms. Bass testified that Respondent grabbed the student?s face and said, in a voice between calm and yelling, something to the effect of “I am in charge. You?re not in charge here. You will do as I say.” Ms. Bass stated that “[i]t appeared from my perspective she was squeezing his cheeks.” The incident left no marks on the student?s face. Ms. Bass reported the incident to Ms. Dejarlais and Ms. Nave. Respondent generally denied the description of the event provided by Ms. Bass, and specifically denied ever having squeezed a student?s cheeks. Respondent testified that she would occasionally hold a student?s face in her hands, and direct the student?s eyes to hers while speaking. In directing eye contact, she exerted no pressure on the student?s cheeks or face. That intervention technique was done to gain the attention of the student and remove what may have been distracting them. Based on her education and experience, Respondent understood that technique to be an acceptable way to direct eye contact. Her testimony was more credible than that of Ms. Bass. Ms. Rose agreed that it is an acceptable research- based intervention to orient a student?s face, deliver instruction, and then provide reinforcement. In implementing that “shadowboxing technique,” it is appropriate to use physical guidance, i.e. holding the student?s face, to get eye contact. That approach is “in the scaffolding of prompting, physical prompting,” and is not outside the scope of what the research indicates is effective. Ms. Rose testified that with younger children it is often more appropriate to start with the most prompting and fade to the least prompting, an intervention described as “errorless learning.” Using that model, physical prompting as a first resort is an effective method and it is supported by the research. Based on the foregoing, Petitioner has failed to prove by a preponderance of the evidence that Respondent squeezed students? faces as alleged in the notice of recommendation of termination. Allegations of Pulling Forcibly on the Arms of the Students Ms. Price provided the only evidence that Respondent pulled forcibly on the arm of any student. The alleged incident occurred after a student had eloped from the classroom. The student was sitting, cross-legged, on the landing outside the portable classroom. The landing is not gated or otherwise secured, and there is nothing to prevent one from walking from the landing to the PE field or beyond. Ms. Price testified that Respondent got her body in the doorway, grabbed the student by the arm, and pulled him back into classroom “more forcefully than necessary.” Ms. Price characterized the event as aggressive in nature. When asked whether Respondent tried other methods to get the student to return to the classroom, Ms. Price testified that “I?m sure that she did. She typically did,” but that “I don?t recall. I was doing something else.” Ms. Price?s lack of direct attention to the incident leads the undersigned to question her account. Respondent testified that she never pulled a child in from outside through door. In cases of elopement, she would usually try to hold the student by the hand or wrist to guide them back in, but never jerked or pulled on the arm of any student. Her testimony was more credible than that of Ms. Price, and is accepted. Ms. Linson testified that in cases of elopement, it is appropriate to take a student by the hand or wrist to guide them back inside. She stressed that “we have to be careful around wrists and arms” to avoid concerns with dislocation of the shoulder, but gave no suggestion that guiding by the wrist was inappropriate. Ms. Linson also testified that if a student is trying to run away, it is appropriate to apply the “children?s control position” as taught as part of the CPI. In that intervention, an adult, with his or her arms crossed and elbows locked, would hold the student on the adult?s side. The intervention is appropriate only for small children, but is an approved restraint. Ms. Linson recognized that human reflex can occasionally result in the restraint being imperfectly, but still appropriately, administered. Ms. Atwood testified that Respondent occasionally had to move a student to time-out when the student had engaged in behavior warranting discipline. She testified that Respondent generally just guided the student, but that when the student would not go willingly, she might put her arms through the student?s arms and move the student to time-out. Ms. Atwood took the required annual CPI course offered to teachers and TAs, but that even with that one-day training, she was not sure how to handle autistic students, and did not know whether the method used by Respondent to move recalcitrant students to time-out was correct or not. In any event, the method described by Ms. Atwood does not meet the allegation that Respondent “pulled forcibly on the arms of the students.” Respondent testified that she occasionally had to physically move a student if he was injuring himself or others, and it was not possible to get others away. In such an instance, Respondent and a TA would implement an approved intervention to move the student to time out, but in no instance would she or anyone else in her classroom pick a student up by the arm, or otherwise pull a student by the arm. Based on the foregoing, Petitioner has failed to prove by a preponderance of the evidence that Respondent “pulled forcibly on the arms of the students” as alleged in the notice of recommendation of termination. Allegation of Creating a Culture of Silence The allegation that Respondent created a culture of silence was based on a statement, frequently repeated at various places, that “what happens in Vegas, stays in Vegas” or “what happens in the classroom stays in the classroom.” The allegation suggested that Respondent made the statement with the intent to discourage the TAs or others from reporting abusive conduct. Ms. Atwood testified that she never heard the “Vegas” statement, but that in any event she was not intimidated by Respondent, and was never discouraged from reporting inappropriate activities. Ms. Nave overheard the “Vegas” conversation at the bus loop in the fall of 2011. The TAs and Respondent were laughing about it, and she perceived nothing of importance or significance about the statement. She understood it to apply to “some silly things that were happening in the classroom.” Ms. Johnson testified that she heard the “Vegas” statement, but was confused about it, and did not know what it meant. Ms. Johnson offered no testimony to support a finding that Respondent intended the statement to discourage her from reporting abusive conduct. Ms. Price offered the only suggestion that the “Vegas” statement was intended to discourage reporting unprofessional or inappropriate activities in the classroom. Ms. Price testified that she “took it” to mean that Respondent was telling her not to bring any complaints against her. She did not testify that Respondent made any direct statement to that effect, but based her testimony on her own subjective belief. Ms. Price did not mention Respondent having discouraged the reporting of inappropriate conduct by means of the “Vegas” statement or otherwise in her May 2, 2012, written witness statement. Rather, she only raised it when her supervisors at the school district told her to think about it. Ms. Price?s testimony and written statement that Respondent intended the oft-repeated “Vegas” statement to be an effort to mask abuse in the classroom, taken as a whole and in conjunction with her general degree of antipathy towards Respondent as described above, is not credible. Respondent and others testified convincingly that the concept of “what happens in Vegas, stays in Vegas” was intended to allow the teachers and TAs to discuss personal matters, and even gossip about other school employees, without fear of their comments being spread around. Respondent testified that the statement was not intended to act as a shield for unprofessional or abusive conduct occurring in the classroom. Respondent?s testimony is accepted. Based on the foregoing, Petitioner has failed to prove by a preponderance of the evidence that Respondent created “a culture of silence . . . in your classroom which discouraged other staff from coming forward with the allegations” as alleged in the notice of recommendation of termination. Unpled Issues Ms. Atwood, Ms. Johnson, and Ms. Price each alluded to a degree of “yelling” in Respondent?s class that was greater than they believed should occur in a “normal” class. In her written statement, Ms. Atwood stated that “at times [it] seemed to be a little too much.” Ms. Johnson felt that it “was, to me, over the top.” However, no TA saw fit to report Respondent?s yelling at any time prior to May 2, 2012. No one described what was meant by “yelling” except in the most general and subjective way. No witness testified as to any standard or criteria regarding “yelling” in an ASD class setting. No evidence was elicited as to whether “yelling” might be appropriate at times. Respondent admitted that she raised her voice on occasion to get the students? attention when the classroom was loud or to make a point, but gave no suggestion that it was contrary to any standard. Although Ms. Linson testified that “yelling” is not appropriate in any class, she did not define “yelling,” nor does she have an autism endorsement to her teaching certificate that might provide additional weight to her testimony as applied to the unique challenges of an ASD class. Despite the volume of the evidence and testimony regarding “yelling,” the fact is that it was not pled as a basis for Respondent?s termination. Had it been pled, the Petitioner failed to prove, by a preponderance of the evidence, that the “yelling” violated any standard warranting discipline against Respondent. During the course of the proceeding, references were made to Respondent having moved the furniture from her classroom. The evidence was conflicting as to whether the removal of the furniture was known or authorized by the school administration. However, it appears that there was a sound, safety-based reason for removing the furniture and gradually reintroducing it to the classroom. Despite the discussion regarding the removal of furniture from the classroom, that issue was not pled as a basis for Respondent?s termination. Had it been pled, the Petitioner failed to prove, by a preponderance of the evidence, that the removal of the furniture violated any standard warranting discipline against Respondent. Discipline Petitioner has adopted, as policy section 6.361 of the School Board of Lake County, an Employee Discipline Plan. The plan provides that “[w]hen discipline of any employee becomes necessary, such action should be in proportion to the employee?s offense or misconduct ” The Employee Discipline Plan includes a Progressive Discipline Method by which sanctions are scaled based on the severity of the occurrence, and on whether it has recurred. The purpose of the policy is to let employees know the nature of the violation and provide an opportunity to correct the behavior. The Progressive Discipline Method includes five steps: Counseling, Level I Reprimand, Level II Reprimand, Suspension and Termination. The Method provides that: Because of the severity in the loss of one?s job employees should be terminated only after thorough investigation. The investigation should conclude that: The employee did, in fact, commit the act; Evidence of guilt is available; The employee?s entire work record, positive and negative, has been considered; The same rules are applied uniformly to other employees; and The penalty of dismissal is reasonably related to the seriousness of the offense. The Employee Discipline Plan provides that: The Superintendent is not required to use this Progressive Discipline Method and may administer discipline at any level, including termination, based on the nature of the offense and the particular circumstances. Examples of actions resulting in immediate suspension or dismissal include, but are not limited to, the following: immorality, gross insubordination, willful neglect of duty, incompetence, substance abuse including alcohol, being convicted or found guilty of or pleading guilty to (regardless of adjudication of guilt) any crime involving moral turpitude. Respondent did not commit any of the specified offenses that constitute “examples of actions resulting in immediate suspension or dismissal.” The School District did not exercise the Progressive Discipline Method, but proceeded directly to termination of Respondent. Ms. Dejarlais did not know why the progressive disciplinary policy was not followed in Respondent?s case. The school officials elected to have the investigation done at the county level, rather than at the school level. It was not explained why such an investigative procedure was undertaken, or whether it was a deviation from the normal disciplinary practice of the school. Since most of the allegations against Respondent were not proven, including those that would normally be understood to be the most serious, there is no reasonable basis to disregard Petitioner?s adopted Employee Discipline Plan and Progressive Discipline Method. Petitioner failed to prove, by a preponderance of the evidence, that Respondent committed the acts alleged, with the exception of a few instances in which she slapped students? hands. The slaps, which were themselves mild, may have been misconstrued defensive blocking techniques. In any event, the instances were isolated, and formed no pattern of unprofessional or inappropriate conduct. Petitioner failed to demonstrate that it considered Respondent?s entire work record, positive and negative, during the investigation. Petitioner failed to demonstrate that it applied the same rules that led to Respondent?s termination to other employees. However, since most of the allegations against Respondent were disproven, any analysis of the violations -- as charged -- would be of limited value. As to the issue of slapping hands, the only evidence in the record as to the sanction for that type of incident was the testimony of Ms. Linson, who was not aware of any instance in which a teacher was terminated for slapping the hand of a student. Petitioner failed to demonstrate that the sanction of termination was reasonably related to the seriousness of the offense, especially given that most of the allegations upon which the decision to terminate was based were not proven. Given the isolated nature of the hand slaps, the mild nature of the slaps, and the possibility that the slaps were misperceived blocking techniques, the undersigned finds that the sanction of termination was not reasonably related to the seriousness of the offense. The evidence demonstrates that, upon her removal from the classroom, Respondent was assigned to the school Copy Center at full pay and benefits pending the outcome of this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lake County School Board, enter a final order: dismissing those allegations in the notice of recommendation of termination that Respondent squeezed faces, pulled forcibly on the arms of the students, and created a culture of silence which discouraged other staff from coming forward with allegations of misconduct; finding that Respondent slapped the hands of students, but that such incidents were isolated, mild, and may have been a misperception of an otherwise acceptable defensive blocking technique; reinstating Respondent to a position equivalent to that previously held with the Lake County School District; imposing the Step I sanction of counseling as set forth in Petitioner?s Progressive Discipline Method; and to the extent Respondent lost wages or benefits, award full back pay and benefits from the time she was removed from the classroom in May 2012, until the date of her reinstatement. DONE AND ENTERED this 14th day of November, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2012. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin and Burnsed, P.A. Post Office Box 491357 1000 West Main Street Leesburg, Florida 34749-1357 Alfred Truesdell, Esquire Jill S. Schwartz and Associates, P.A. Suite 212 655 West Morse Boulevard Winter Park, Florida 32789-3745 Susan Moxley, Ed.D., Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
