Findings Of Fact Respondent Robert L. Collins has been employed by the School Board of Dade County, Florida as a teacher for the last twenty-four years and is on continuing contract. For approximately the last seven of those years, Respondent has been teaching Industrial Arts at Miami Killian Senior High School. Between late September 1983, and November 23, 1983, Jonathan Wright was a student in Respondent's Plastics class. On November 23, 1983, Wright came into Respondent's Plastics class wearing a hat, which is against school rules. Respondent directed Wright to remove his hat which he did. Later in that same class Respondent saw Wright sitting by the engraver again wearing that hat. Respondent removed the hat from Wright's head and advised Wright that if he put the hat on another time Respondent would send him to the principal's office. At approximately 5 minutes before the end of the class period, Respondent instructed the students that it was time to clean up the shop area. Wright and some of the other students began gathering at the door. Respondent motioned to those students to come back into the classroom and away from the door, which some of them did. Wright, however, did not. Respondent then specifically directed Wright to get away from the door. Instead of obeying, Wright put up a hand and a foot in a karate type posture but clearly in a playful manner. As a normal reaction in the context of the situation, Respondent did likewise. Respondent then turned back toward the class at which time Wright grabbed him by the legs and pulled him down to the floor. Respondent and Wright were rolling around on the floor in a small alcove area, and Respondent was unable to get loose from Wright's grip. Respondent was afraid that he, Wright, or the other students might be severely injured in the small alcove by the door or on some of the machinery located in the Plastics shop classroom. Unable to free himself, Respondent bit Wright on the back. Wright released Respondent and got up off the floor. After the bell rang, Wright left the classroom. Wright was transferred to the Plastics class of teacher Gerald Krotenberg where he remained for the rest of the school year. On several occasions Krotenberg was required to admonish Wright because Wright often resorted to "horse play" with other students. On occasion Wright would come into the classroom and would "bear hug" the girls, "jostle" the boys, and be disruptive so that Krotenberg could not take attendance or conduct the class. Although Krotenberg followed his normal technique of chastising the student in public, and then chastising the student in private, those techniques did not work and Krotenberg was required to exclude Wright from class on probably two occasions, for two days each, due to Wright's inappropriate behavior with other students. During the two months that Wright was in Respondent's class, Wright had come up behind Respondent on one or two occasions and lightly put his arms around Respondent in the nature of a bear hug. Respondent counseled Wright that that was not appropriate behavior. The only touching of Wright that was initiated by Respondent himself occurred in the form of Respondent placing his hand on Wright's shoulder while discussing a project being worked on at the moment or perhaps a light slap on the back in the nature of encouragement or praise for a job well done. Not all teachers, however, agree that it is appropriate to occasionally give a student an encouraging pat on the back. Although Wright had on one or two occasions given Respondent a playful hug and although Respondent had on several occasions given Wright an encouraging pat on the back or touch on his shoulder, no physical combat ever occurred between them. Although Wright often engaged in "horse play" with other students, no "horse play" occurred between Wright and Respondent. None of Respondent's annual evaluations during the years he has been teaching in the Dade County public School, including the annual evaluation for the the 1983-1984 school year, indicates that Respondent has had any problems with either maintaining good discipline in his classes or that Respondent is anything other than acceptable in the area of classroom management.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing Respondent's suspension, reinstating him if necessary, and reimbursing him for back pay-if he was suspended without pay. DONE and RECOMMENDED this 3rd day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT, 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 3rd day of July, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire 111 SW Third Street Third Floor Miami, Florida 33130 Michael D. Ray, Esquire 7630 Biscayne Boulevard Suite 202 Miami, Florida 33138 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 N.E. Second Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue in this cause is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 418505 in the area of Music. The certificate was valid through June 30, 2002. There was no evidence that Respondent had renewed his certificate. During the 1997-1998 school year, Respondent was employed with the Sumter County School District as the band director at Central High School. Elizabeth Pooley was born on August 9, 1983. She attended West Hernando Middle School in the 1996-1997 school year. She attended Central High School as a ninth-grade student in the 1997-1998 school year. She was a member of the Central High School band directed by Respondent. Respondent met Ms. Pooley during her eighth-grade year at West Hernando Middle School. During her ninth-grade year (1997-1998) at Central High School, Respondent became aware that Ms. Pooley had a crush on him. Ms. Pooley was 14 years old. At the time he met Ms. Pooley in the 1996-1997 school year Respondent was 45 years old, married and had two minor children, one girl and one boy. Both children were around Ms. Pooley's age. In April 1998, at Central High School, Respondent wrote a note containing inappropriate sexual innuendo about Respondent having a sexual encounter with Ms. Pooley on a boating excursion with her family. The note, while somewhat hard to follow, described Ms. Pooley as a virgin, acts of masturbation by Ms. Pooley, and referenced something about a burp. Respondent gave the note to a minor female student, H.P., and told her to give the note to her sister, C.P., another minor female student in the band at Respondent's school. When the girls' mother overheard her daughters talking about the note, she took it from them and read it. Realizing how inappropriate the content of the note was for a male teacher to be writing about a minor female student, she kept the note. The next day, she turned the note over to the principal of Central High School. When the principal, Dennis McGeehan, questioned Respondent about the note, Respondent admitted writing it. However, he did not remember writing the note and could not fathom why he had written the note. At hearing Respondent claimed that he believed he had been slipped a drug in a cupcake by some students. However, he offered no credible evidence of such. Based upon this admitted misconduct, Mr. McGeehan recommended that Respondent be suspended with pay. On April 23, 1998, Respondent was advised that he would not be recommended for renewal of his employment contract with the district. Respondent resigned his position of employment on April 25, 1998, after he received the notice of his non-renewal. A copy of the note written by Respondent and an article about it were published in the St. Petersburg Times newspaper on April 30, 1998. Other news articles about the matter were also published. Ms. Pooley and her father were both interviewed about the incident and quoted in one of the newspaper articles. Both denied the incident described in the note ever occurred. After this incident, Ms. Pooley was teased at school. She was unhappy because of the teasing. Respondent continued to meet with Ms. Pooley and talk with her. At some point, the relationship evolved from mentoring to one of romance. However, other than kissing and caressing, no sexual intercourse occurred. Ms. Pooley's parents were very concerned about Respondent's involvement with their daughter. They requested he have no further contact with her. Their request was not honored by Respondent or Ms. Pooley. Eventually they moved with her approximately 2 1/2 to 3 hours away to New Port Richey, Pasco County, in order to avoid further contact between their child and Respondent and to remove her from teasing at school about the incident. Respondent, however, did not leave Ms. Pooley alone. Respondent made numerous trips from his residence in Cross City, Florida, to New Port Richey, Florida, to see her during the summer of 1998. Again her parents requested that Respondent not see their daughter. Respondent again did not comply. As a result of Respondent's contacts with Ms. Pooley in June and July 1998, her parents filed a criminal complaint with the Pasco County Sheriff's Office against Respondent. Respondent's involvement with Ms. Pooley in New Port Richey involved love notes and letters to Ms. Pooley, furtively meeting with Ms. Pooley on a number of occasions without her parents' knowledge or consent, and engaging in kissing, hand- holding, hugging, and fondling of Ms. Pooley's breasts. No sexual intercourse occurred. Several of their secret meetings took place in the parking lot of a bar called the Pasco Pussycat. In February 1999, at age 15, Ms. Pooley's parents placed her in a short-term residential run-away crisis center called the RAP House in New Port Richey. They did so because their relationship with Ms. Pooley had deteriorated due to her ongoing relationship with Respondent. While enrolled there, staff of the RAP House initiated a lewd and lascivious report to the Pasco County Sheriff's Office concerning Respondent's involvement with Ms. Pooley. In her statement to the Pasco County Sheriff's investigators, Ms. Pooley told them that beginning in June 1998, Respondent picked her up in his truck on several occasions and drove her into some woods where they kissed and held hands. After Ms. Pooley moved to Pasco County, Respondent stayed in touch with her by telephone and letters. Respondent would meet her at convenience stores and a mall. They would park and engage in kissing and petting. On one occasion, Respondent rubbed her breasts and inner thighs. Respondent would tell Ms. Pooley that he could not wait to put a ring on her finger and that they could make love. Ms. Pooley testified that she told the police officer this story because the officer had told her Respondent had been romantically involved with other students and the thought angered her. Ms. Pooley's recanting of her earlier statements is not credible. In a further effort to keep Respondent away from their daughter, Ms. Pooley's parents decided to send her to live with relatives in Kentucky. Respondent found out where she was and visited her there. Ms. Pooley eventually returned to Florida in March 2000. The day after her return to Florida she and Respondent were married. The marriage took place on March 17, 2000. Ms. Pooley was 16 years old and Respondent was 47 years old at the time of their marriage. Ms. Pooley's parents gave their legal consent to the marriage because they had finally given up on keeping Respondent away from their daughter. They did not want to lose her forever over the relationship between Respondent and her. Ms. Pooley, who could easily have graduated from high school, did not finish high school. She has since obtained her GED. To date, Ms. Pooley and Respondent remain married. She is employed at the post office. Other than her failure to graduate from high school, her poor relationship with her parents, and inability to develop free of a romantic involvement with an adult, the evidence did not demonstrate any physical or mental harm to Ms. Pooley by Respondent's actions since most of the harm, if any, is of the type that will only manifest itself in the future. The evidence was clear and convincing that by his involvement with Ms. Pooley, Respondent inappropriately gained from his status as a teacher in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. The evidence also demonstrated that Ms. Pooley was unnecessarily exposed to embarrassment and disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. Indeed, her parents moved to remove her from such embarrassment. Finally and most seriously, through his actions Respondent harmed Ms. Pooley in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Ms. Pooley did not finish high school and did not enjoy a normal or harmonious family relationship due to Respondent's actions. She was deprived of a normal high school experience and subjected to advances from a 45-year-old man who was infatuated with her. Such behavior is anathema to the professional requirements and primary duty of a teacher. After his resignation from Central High School, Respondent was employed as a band director at Dixie County High School in 1999-2000 school year. After marrying Ms. Pooley, he began bringing her to school with him to assure her and demonstrate that he was not romantically involved with other students. At times, Respondent allowed Ms. Pooley, who was a talented music and band student and who had helped choreograph the band's routine, to supervise and discipline his band students. Some of these students were the same age or older than Ms. Pooley. Ms. Pooley's participation in the class caused resentment in some of the students. The school's principal received complaints from both parents and students about Respondent permitting his 16-year-old wife to assume teaching responsibilities and discipline of his band students. Some students quit the band. The evidence did not show that the students who quit did so because of Respondent's actions. The principal instructed Respondent not to allow his wife to participate in his class and that his wife should not be present at the school. He received a reprimand for permitting his wife to help with his class. Respondent complied with these instructions. The evidence was not clear that Respondent lost effectiveness by permitting his wife to help with his class. However, it was incredibly poor professional judgment on Respondent's part. Respondent also allowed Ms. Pooley to use the school computer located in his office at Dixie County High School. Ms. Pooley used Respondent's school computer on May 9, 2000, to send an inappropriate email to Respondent's ex-wife at the school where she was employed. However, the evidence was unclear whether Respondent knew that his wife had used the school's computer to send his ex-wife an email. Nor was it clear that such use was against school policy, since occasional personal use was permitted by the school. Respondent again complied with the principal's instructions not to permit his wife to use the school computer. Therefore, no violation has been established with regard to the use of the school's computer, if such activity can ever amount to a violation of the licensure statutes and rules which would subject a licensee to discipline. Respondent was not recommended for renewal of his employment in Dixie County for the 2001-2002 school year. Respondent takes the position that he has not done anything wrong regarding his romance with Ms. Pooley. It does not appear that Respondent will engage in similar conduct in the future.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's Florida Educator's Certificate No. 418505 be revoked for a minimum of three years. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 10th day of October, 2002. COPIES FURNISHED: Richard Averill 420 Northwest 257th Street Newberry, Florida 32669 J. David Holder, Esquire 24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact On October 29, 1984, Bruce E. Beneby, Respondent, was on the instructional staff at Dixie Hollings Senior High School as band instructor. Dennis Hale, a detective in the Pinellas County Sheriff's Department, went to Dixie Hollings Senior High School around 5:00 p.m., October 29, 1984, to pick up his son after band practice and to ask Respondent why he had thrown Hale's son's textbook in the garbage. Upon his arrival at the school in the vicinity of the bandroom, Hale observed Beneby running around the building with his shirt off. One of the milling students told Hale that Beneby was about to fight a student. When Hale arrived at the scene he observed Beneby holding a pair of scissors in a threatening manner toward the student, Ellis Tedrick. Tedrick had a six-foot length of drain pipe. Neither struck the other. Hale told both to stop but was not obeyed until he produced his sheriff's badge. Earlier, after band practice, Tedrick asked Beneby why he had thrown some of the girls off the Re Belle squad. He and Beneby got into an argument and Beneby picked up a band stand with which he threatened Tedrick. Other witnesses testified regarding Beneby's aggressiveness on other occasions. Testimony respecting Beneby having a gun in his briefcase to protect himself from the parents of students in his class is disregarded. No charge of this nature was made against Respondent as reason for his dismissal. No evidence was presented by any witness that observed Respondent destroy or throw away school property such as textbooks.
Findings Of Fact Clarence Dixon received a Bachelor of Science degree with academic honors from Bethune-Cookman College. He was active in athletics and was rated "All-American" in football. He was employed by Piper High School for the 1980- 81 school year in his first teaching position. He was hired to teach physical education, and was encouraged by the principal of Piper High School to take an active part in the black community. Sandra Brown is employed at Piper High School as a security specialist. She met Dixon through their work association and asked Dixon to counsel her son, as she knew he respected Dixon. Mrs. Brown related several conversations wherein Dixon made sexual advances to her. Mrs. Brown was also involved in the initial school investigation of Dixon's alleged sexual improprieties with Piper High School students; Sharon Cooper is a 15-year-old female student at Piper High School. She had been upset over rumors that involved her reputation, and was considering leaving school over the matter. Dixon became aware of her problem end counseled her to remain in school and ignore the rumors. Carl Nadler, a 16-year-old student at Piper High School, overheard Cooper tell Dixon that, "All the guys say I suck dicks and fuck." This was the statement attributed to Dixon in Count 2 of the Petition. However, it appears that Dixon did not use these words, or at least did not use them in a sexually suggestive context. Lesia McGee is a 17-year-old student at Piper High School. She did not testify at the hearing due to illness, but the parties agreed to allow her deposition to be admitted as evidence associated with Count 5 of the Petition. Her testimony establishes that Dixon told her, "If you wear those purple pants again, I'm going to tongue you to death." Any doubt regarding the sexual implication of this statement was removed by remarks Dixon made to McGee on other occasions to the effect that she had a good figure and would she be enough of a lady not to tell anyone if she and Dixon were to make love. McGee readily admitted that Sandra Brown wanted her to exaggerate her complaint, but she refused. Her testimony indicated no animosity toward Dixon nor influence by Sandra Brown. Freddie Jones is a student at Piper High School. He informed another student, Sandra Cunningham, that Dixon had asked Jones to spread a rumor about her. Jones recanted his initial statement to investigators at the prehearing deposition. He returned to the allegation at the hearing, explaining that he had tried to help Dixon by lying at the deposition, but came to believe it was more important to tell the truth. Jones' testimony lacks credibility because of its inconsistency with his earlier sworn statement. Valynda Johnson is an eleventh grade student at Piper High School. She and Dixon had frequent contacts even though she was not his student. Several times Dixon sent her passes to leave class in order to meet him on the athletic field. Dixon concedes that he once sought to have her excused from class to do some typing for him. On one occasion, Dixon invited Johnson to a basketball game with him and on another to meet him at a convenience store. On two occasions, Dixon asked Johnson, "When are you going to let me do that?" or words of similar import. When she asked what he meant, he replied, "You know what I'm talking about." Johnson was unsure of Dixon's intentions, but believed that Dixon was probably seeking sexual relations with her. Although Johnson was confused on some of the details of her testimony, she was a generally credible witness, showing no animosity toward Dixon or influence by Sandra Brown. Rene Snelling is an 18-year-old student at Piper High School. Dixon and Snelling became friendly, and Dixon made periodic comments to her about her figure and potential for a modeling career. They also discussed a trip to visit a college in Kentucky. Although Dixon took only male students on this trip, he did bring back souvenir T-shirts for Snelling and several other students. Dixon also phoned Snelling at her home and once told her he had a gold chain for her. The comment on which Count 8 is based involved Dixon's question to Snelling, "If we ever had sex would you [Snelling] be ladylike enough not to tell anyone?" or words of similar meaning. This conversation took place in the school library where Snelling was working on a class assignment. Dixon denies making this statement but recalls that when he asked to sit beside her in the library she replied that a nice-looking man like Dixon could sit next to her. Although Snelling was unsure of some of the details of her contacts with Dixon, she was a generally credible witness and showed no animosity toward Dixon or influence by Sandra Brown. Hooker T. Robinson is a 18-year-old student at Piper High School. He overheard Rene Snelling tell another student that if Coach Dixon were not so dedicated to his wife she would fuck him. Robinson was called by Respondent apparently to discredit Snelling's testimony. However, Robinson's testimony indicates that a sexual attraction was developing between Dixon and Snelling which is consistent with the charges contained in Count 8. Darryl Allen is a 15-year-old student at Piper High School. He overheard Chanita Austin, Rene Snelling and Valynda Johnson discussing Dixon in early January. He heard one of them say, "He [Dixon] is acting so high class and doesn't speak anymore," or words of similar import. Darwin Taylor is a 15-year-old student at Piper High School. He overheard a discussion between Sandra Brown and Rene Snelling about February wherein Mrs. Brown stated to Snelling, "Don't worry, we've got him where we want him." Taylor further overheard Mrs. Brown advise Snelling to tell the judge that Dixon gave her a gold chain and tried to touch her and have sex with her. This testimony and that of students Lesia McGee and Chanita Austin (deposition) establishes that Mrs. Brown either intentionally or in the zeal of her investigation encouraged exaggerations. However, the students testifying in this proceeding recognized this and were net swayed by Mrs. Brown's encouragement. The testimony of Piper High School students Alvin Williams, Eugene Wimbs and Ernest Merrell is not material and is accorded no evidentiary weight herein. The depositions of Piper High School students Sandra Anderson, Chanita Austin and Jackie Dawson do not contain evidence relevant to the charges herein and are likewise accorded no weight. The testimony of Anthony Ash, Broward County CTA representative, and Andrew Thomas of the Broward County School System, involve procedural matters not directly relevant to factual questions at issue here. The Respondent denies making the statements and other improper conduct attributed to him by the witnesses. He points out that the complaining witnesses are all from the same neighborhood and are all below-average students. He theorizes that they were confused over factual matters and did not appreciate the damage their statements could have upon him, and that they were unduly influenced by Sandra Brown. The testimony of these Piper High School students, with the exception of Freddie Jones who changed his testimony, was generally credible. They demonstrated an appreciation for the gravity of their complaints and the potential impact on Dixon's career. They did not show any resentment toward Dixon, but rather viewed him as a friend or former friend. The witnesses were encouraged to come forward by Sandra Brown. As noted above, Mrs. Brown's investigative techniques were lacking in objectivity. However, there was no indication that any witness committed perjury as a result of improper influence by Mrs. Brown. Although it was apparent that the students did discuss this case among themselves, there was no indication of any conspiracy against Dixon.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts 3 and 4 of the Petition be dismissed. It is further RECOMMENDED that Respondent Clarence Dixon be found not guilty of the charges contained in Counts 1, 2 and 6 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be found guilty of the charges contained in Counts 5, 7 and 8 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be discharged from employment as a teacher by the Petitioner School Board of Broward County. DONE and ENTERED this 6th day of August, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER 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 6th day of August, 1981. COPIES FURNISHED: Charles Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact The Parties Petitioner is the authorized entity charged with the responsibility to operate, control, and supervise the public schools within Miami-Dade County, Florida. Respondent was hired by Petitioner as a school security monitor in March of 1993. Although Respondent was initially assigned to Miami Northwestern High School, he was transferred to Norland High in April 1994, where he remained until the incident that is the subject of this proceeding. Respondent's employment is governed by the collective bargaining agreement between Petitioner and United Teachers of Dade ("UTD"). Pursuant to Article XXI, Section 3.D of the UTD contract, Respondent may only be discharged for "just cause," which includes, but is not limited to, "misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude." The Allegations It is undisputed that during the 2009-2010 school year, an unknown number of students staged a series of unauthorized boxing matches1 at various locations on the grounds of Norland High. Of the multiple boxing incidents, this proceeding concerns only one: a match that took place in Norland High's wrestling room at some point between the beginning of the school year and February 2010. On that occasion, approximately 20 students gathered in the wrestling room (a location where the students were not authorized to be) during the second lunch period to view a match between D.L. and another student. Respondent, who was present2 during the entire incident, neither orally directed the students to stop fighting, nor did he physically intervene.3 A videotape of the incident, which was introduced into evidence during the final hearing, depicts the following: 00:07 - D.L. and unidentified student, both of whom are wearing boxing gloves, begin fighting. 00:19 - Several student "referees" separate D.L. and other participant. 00:30 - Respondent, wearing green golf- style shirt (the standard uniform for security monitors), standing in corner of room. 01:07 - Fighting resumes. 01:35 - D.L. and other participant broken up by students; match concludes. 02:00 - Respondent standing near unidentified student participant. 02:25 - Students begin to leave. 02:32 - Video ends. As the forgoing timeline indicates, D.L. and the unidentified student boxed for a total of 40 seconds. Although both students threw a number of punches during that span, most of the blows were wild and either missed or did not land cleanly. Nevertheless, the undersigned finds that the episode presented a condition that was potentially harmful to the physical health or safety of D.L. and the other student participant. Although the boxing incident detailed above is one that should have been reported, at no time did Respondent notify any member of Norland High's administration of what occurred. Respondent's explanation, which the undersigned credits with some reluctance, is that he unsuccessfully attempted to contact school administration upon discovering the incident, only to be informed by a front office worker that the administrators were in a meeting. After the students dispersed, Respondent went to lunch and forgot to follow up on the matter.4 Eventually, one of Norland High's assistant principals, Peter Melton, learned of the incident after a student told him to search YouTube for "Norland fights." Mr. Melton promptly notified the principal of Norland High, and an investigation ensued on or around February 2010. During the initial stages of the investigation, Petitioner suspected that Respondent had organized multiple boxing matches between students on Norland High's campus, charged admission, and awarded prizes to the winners.5 Ultimately, however, Petitioner determined that no probable cause existed to support such allegations, and instead charged Respondent with failing to intervene in the match involving D.L. and with not informing school administration of the incident. Although Norland High's administration faced some level of parental backlash as a result of the boxing incidents, Petitioner did not demonstrate that the backlash was attendant to the charges ultimately filed against Respondent, as opposed to the initial, more serious allegations that Petitioner could not substantiate. Petitioner failed to establish by a greater weight of the evidence that Respondent's effectiveness as a school security monitor has been impaired as a result of his conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing an appropriate punishment other than dismissal based upon Respondent's failure to make reasonable effort to protect students from conditions harmful to their physical health or safety. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 6th day of April, 2011.
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 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 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2016), or Florida Administrative Code Rules 6A- 10.081(2)(a)1. and 5.; and, if so, what penalty should be imposed.
Findings Of Fact The Florida Education Commission is the state agency charged with the certification and regulation of Florida educators. Respondent, Lillie Williams-Graham, holds State of Florida Educator’s Certificate 973805, authorizing her to teach Health Education. Respondent was employed by Duval Charter Scholars Academy (Duval Charter) in Jacksonville, Florida, as an eighth- grade English/Language Arts (ELA) teacher from August 29 to September 13, 2016. Respondent taught classes for only three days during that timeframe. Duval Charter is a Title I school where many students have behavioral problems. The school’s Principal, Carin White, testified that “historically the school has been a difficult school to work in.” She explained, “We did have a resource officer there for a reason, because students do tend to misbehave.” On August 31, 2016, student L.C. came to Principal White around 1:00 p.m., and complained to Principal White that Respondent had grabbed L.C. by the arm in the cafeteria and pulled her away from the table, out of the cafeteria, and up the stairs. Principal White was familiar with L.C. from Principal White’s internship with the prior principal during the last nine weeks of the 2015-2016 school year. Principal White testified she knew L.C. to be a good student who “did not typically get in trouble” in class, had no behavior record, and had no referrals on L.C. from the deans. At roughly the same time L.C. came to Principal White with her complaints about Respondent, students K.B. and S.H. came to Merralee Block, the school’s Guidance Counselor. K.B. complained to Ms. Block that Respondent had hit her on the head in class while her head was down on her desk. K.B. and S.H. also related that Respondent had grabbed another student, D.W.’s, face during class. Ms. Block had some familiarity with K.B. because K.B. volunteered in Ms. Block’s classroom with younger students. Otherwise, Ms. Block’s relationship with K.B. was no different from any other student to whom she was guidance counselor. Ms. Block also had a relationship with S.H. prior to the 2016-2017 school year. During the prior school year, S.H. worked with a group of younger students in Ms. Block’s classroom on a weekly basis. Ms. Block described S.H. in glowing terms: “a fine young woman,” “a really beautiful person,” and a good student. Ms. Block deemed the students’ complaints serious enough to bring to the attention of Principal White. Ms. Block stepped into Principal White’s office, where Principal White was speaking to L.C. Principal White stepped into the hallway with Ms. Block where K.B. and S.H. were waiting. Ms. Block informed Principal White that the students had complaints about Respondent touching them. It was an early dismissal day and students began crowding the hallway. D.W. and I.H. were walking together, saw K.B. and S.H., and stopped to talk.1/ As Principal White explained, “[T]hey just kind of all converged, and they started their, you know, oh, yeah, that happened.” At some point in this informal setting, D.W. stated something to the effect of “oh, yeah, she grabbed my face one day too.” Principal White “shushed them all” and asked to speak with each student individually. Because it was dismissal, Principal White took only verbal statements and informed them she would take written statements the following day. About 4:00 p.m. on August 31, 2016, Principal White asked Assistant Principal Meagan Connolly to join her in a meeting with Respondent. During the meeting, Principal White informed Respondent of the students’ complaints and asked to hear Respondent’s side. Respondent admitted touching student D.W.’s face in class, “gently” to get his attention. Respondent admitted touching L.C. on the arm to get her attention in the cafeteria, but denied pulling her. Respondent denied touching K.B. During the interview with Respondent, Principal White described Respondent as “extremely calm, quiet, and stoic in response to what I was telling her the students had reported.” Principal White informed Respondent that an investigation would be conducted. On September 1, 2016, Principal White took written statements from the students, as well as Respondent, contacted her Supervisor, April Williams, and conducted a conference call with the human resources department.2/ Following the conference call, Respondent was asked to turn in her keys, escorted to her car, and placed on leave pending the outcome of an investigation into the students’ allegations. Respondent was terminated by Duval Charter effective September 13, 2016. During the investigation by the Education Practices Commission, each of the students was questioned by, and gave additional written statements to, Lisa Robinson, an Investigator with the Florida Department of Education. Administrative Allegations Petitioner’s Amended Administrative Complaint contains the following material allegations: 3. During the 2016-2017 school year, Respondent repeatedly touched students improperly when: Respondent grabbed L.C., a female eighth-grade student, by the arm and pulled her out of the cafeteria. Respondent struck K.B., a female eighth-grade student, on the head when K.B.’s head was down on her desk. Respondent grabbed D.S., a male eighth- grade student, by the jaw and turned D.S.’s head so that he was looking at her. Throughout the final hearing, Respondent’s demeanor was calm and respectful. She was patient with the students, not argumentative when she cross-examined witnesses, and respectful and courteous to both the undersigned and Petitioner’s counsel. Respondent expressed concern that some of the students conspired together and exaggerated certain events in order to get her in trouble at the school. Alleged Pulling of L.C. On August 31, 2016, L.C. and her classmates ate lunch in the cafeteria at a table close to the exit door to the stairwell. L.C. testified that, while she was getting up from the cafeteria table, Respondent “came up to me and grabbed me [by the left arm above the elbow] and pulled me through the cafeteria and up the stairs.” L.C. testified she told Respondent not to touch her and tried to pull away from Respondent, but Respondent was holding her arm too tightly. Respondent testified that she had taken her students after their lunch period upstairs to go to their next class, when another student told her that L.C. was still in the cafeteria. Respondent went back to the cafeteria to retrieve L.C., whom she found engaged in an argument with another student at the lunch table. Respondent said L.C.’s name to get her attention, but the cafeteria was too loud for Respondent to be heard. Respondent testified she touched L.C.’s arm to get her attention and told her to come with Respondent upstairs to her next class. Respondent denied pulling L.C. by the arm, but admitted hearing L.C. tell Respondent not to touch her. Petitioner introduced video footage of the cafeteria on the date in question, and had L.C. testify contemporaneously about the actions unfolding in the video. The video is of poor quality and especially grainy in the area of the cafeteria farthest from the camera--precisely the area in which the incident allegedly transpired. The date/time stamp on the video recording further obscured the undersigned’s view. The video footage is not competent evidence to support a finding that Respondent grabbed L.C. by the arm and pulled her through the cafeteria. At best, the video depicts Respondent approaching L.C. at the cafeteria table and L.C. leaving the cafeteria with Respondent quickly and slightly ahead of Respondent. Ms. Connolly viewed the school’s “live feed” video of the cafeteria during the school’s investigation of the incident. She testified that the live feed video was of the same view as that introduced in evidence, but had no time/date stamp. Ms. Connolly viewed, rewound, and reviewed the video a few times. In Ms. Connolly’s written statement regarding the incident, she stated, “After playing and rewinding the video, it does appear that [Respondent] does make contact with L.C.’s arm to get her to move out of the cafeteria and up the stairs.” During her testimony at final hearing, Ms. Connolly added that there was “a pulling motion,” but she could not say it was a “continual motion.” She testified, in pertinent part, as follows: What I recall seeing after playing and rewinding is that it does look like there is contact, like, that there is a pulling motion. There are spaces in the video, like I saw here, where someone may be sort of directly in the view, but I don’t know if it was continual motion. But it does look like there was a pulling initially, and a pulling towards the stairwell. * * * So the video that I watched and played at the school live feed, I watched a few times, and I do see spots where there is a pulling motion. * * * I do feel what I saw was a contact. It looked like a pulling motion initially. Again, the view, it’s hard to recall. Like, you can’t see all the way through. And then it does look like there’s still that sort of thing, contact, towards the stairs. That’s what I do remember. That is not fully what I wrote. Ms. Connolly’s testimony is not competent evidence to support a finding that Respondent grabbed L.C. by the arm and pulled her through the cafeteria. K.B. was the only witness claiming to have seen the incident in person. K.B. testified that Respondent “like pulled L.C.’s arm and like—not dragged her, but like pulled her up the stairs.” Later she clarified that she did not actually see L.C. and Respondent go up the stairs, but saw Respondent pull L.C. by the arm through the stairwell door. The troubling part of K.B.’s testimony is that she is one of L.C.’s cohorts, who, according to Principal White, followed the same schedule as L.C. If so, K.B. would have already been upstairs on her way to her next class at the time of the incident. Respondent testified that, at the time of the incident, “None of my students were at the table at that time. She was the only one that was left in the cafeteria. Everybody else was upstairs.” K.B.’s testimony is not competent evidence to support a finding that Respondent grabbed L.C. by the arm and pulled her through the cafeteria to the exit. As to Petitioner’s first allegation, the evidence supports a finding that Respondent did make physical contact with L.C. and accompanied her out of the cafeteria. The evidence does not support a finding that Respondent pulled L.C. from the table and out of the cafeteria. Alleged Striking of K.B. K.B. had her head down on her desk in Respondent’s class while Respondent was teaching from the front of the room. K.B.’s desk was in the back of the classroom. K.B. testified as follows: I put my head down and I was sleeping. And she - I don’t remember like everything that happened, but she came and like - you know, how like a normal teacher, like nudge you on the shoulder and say can you please wake up; she like hit me on my head, but not like – not hard like a fight hard, but like – kind of like where it hurted. And I text my mom and told her. K.B. did not see Respondent hit her. K.B. determined Respondent hit her because when she sat up she saw Respondent walking up the row of desks toward the front of the room. In the written statement K.B. gave to Principal White on September 1, 2016, K.B. wrote, “I had my head down in class and [Respondent] came up and hit my head and said ‘No sleeping’ and I got mad.” In the written statement K.B. gave during Ms. Robinson’s investigation, K.B. wrote, “I had my head down on the desk because I wasn’t feeling well, so [Respondent] came and hit me on my head, in the middle of it, and her hand was open, it hurted from on a scale 1-10, 10 being the worst, it was a 5.” K.B. did not see who hit her on the head. It would have been impossible for K.B. to know whether the person who hit her had their hand open or closed. K.B.’s mother testified that she received a text from K.B. during school about the incident. Ms. Brooks did not testify about the content of the text. Ms. Brooks testified that, when she came home from work, “[K.B.] just said that the teacher popped her in the back of the head to wake her up.” Ms. Brooks testified that K.B. was upset about the incident, and that K.B. was embarrassed and crying. K.B. testified that she was “kind of embarrassed because I thought everybody saw, but nobody saw.” The student witness accounts of the incident were just as conflicting as that of K.B. Student L.C. testified that she saw Respondent “walk up to K.B.” but that L.C. looked away and then heard K.B. say “don’t touch me” and saw K.B. “move her shoulder.” L.C. testified that she did not see Respondent touch K.B. However, in her statement given to Ms. Robinson, L.C. stated, “I saw [Respondent] lightly tap K.B.’s shoulder and told her to get up.” L.C.’s account was neither credible nor reliable. The most credible student witness was S.H. S.H.’s demeanor was calm, respectful, and serious. S.H. no longer attends Duval Charter and testified via video from her new school. If the students did conspire to get Respondent in trouble, as Respondent suggests, S.H. was in a position to come clean without suffering retaliation from the other students. S.H.’s credibility was bolstered, as well, by Ms. Block’s glowing description of S.H. S.H. testified that her seat in Respondent’s classroom was about three feet away from K.B. S.H. testified that K.B. had her head down on her desk and Respondent said “if your partner is sleeping” wake them up. S.H. tapped K.B., but she could not say for sure whether it was on K.B.’s head or her shoulder. K.B. did not wake up when S.H. touched K.B. S.H. testified, “And [Respondent] came over and tapped [K.B.’s] head.” In her written statement given to Principal White, S.H. wrote, “K.B. . . . was laying her head on the desk, [Respondent] stated ‘if your partner is laying on the desk give them a shove’ so I tapped K.B. Then [Respondent] came over to wake her up hitting her head. I (S.H.) was not aware it hurt her.” S.H. testified that Respondent “tapped” K.B. on the head, but wrote that Respondent “hit” K.B. on the head. At the final hearing, S.H. explained that her written statement was “a poor choice of wording.” In response to the undersigned’s request that S.H. clarify what she meant, S.H. explained, “At the time, I didn’t have such a wide vocabulary, so like – I’m assuming the only word I could use to describe what happened was a hit.” The competent, substantial evidence supports a finding that Respondent patted K.B. on the head to wake her and reengage her in the class. Petitioner alleges Respondent “struck” K.B. on the head while K.B.’s head was down on her desk. Merriam Webster defines “Strike” as follows3/: Definition of strike struck play \'str?k\; struck also stricken play \'stri-k?n\; striking play \'stri- ki?\ intransitive verb 1: to take a course: go struck off through the brush. 2a: to aim and usually deliver a blow, stroke, or thrust (as with the hand, a weapon, or a tool). b: to arrive with detrimental effect disaster struck c: to attempt to undermine or harm something as if by a blow. struck at . . . cherished notions--R. P. Warren. 3: to come into contact forcefully two ships struck in mid channel. The evidence does not support a finding that Respondent touched K.B.’s head forcefully or that she took aim and delivered a blow to K.B.’s head. Alleged Grabbing of D.W.’s Jaw D.W. was a student in Respondent’s eighth-grade ELA class. D.W. testified that he was talking in class and Respondent asked him to stop. When he did not, D.W. testified that Respondent “grabbed my face and told me to look at her when she is talking to me.” D.W. demonstrated that Respondent placed her hand on his jaw and “turned [his face] toward her.” D.W.’s testimony at the final hearing was consistent with both his written statement he gave to Principal White and the statement he made to Investigator Robinson. Both students, K.B. and I.W., witnessed the incident and testified about it during the final hearing. Their testimony was consistent with both D.W.’s testimony and his written statements. D.W. testified that he became angry with Respondent for putting her hands on him. Respondent does not deny touching D.W.’s face in an attempt to get his attention. She maintains that she spoke calmly with affirming words and was neither angry nor frustrated. On cross-examination by Respondent, D.W.’s attitude changed dramatically. D.W.’s demeanor transformed from matter- of-fact to subdued, almost shy. His tone was apologetic. On cross-examination, D.W. admitted that Respondent was, at the time of the incident, speaking words into his ear. He remembered Respondent saying “Please stop, look at me son, I don’t want you to get in trouble.” D.W. also recalled Respondent saying, “I’m trying to give you a chance to be better, I need you to show me that you can, okay?” D.W. agreed with Respondent that she was trying to change his mind about his actions in a positive way. Further, D.W. admitted on cross-examination that he did not feel as if he were in danger or that Respondent was going to hurt him. The evidence supports a finding that Respondent did grasp D.W.’s face in class and turn it so that he was facing her. D.W.’s testimony that he became angry was credible. The greater weight of the evidence supports a finding that D.W. was embarrassed by the incident occurring in front of his classmates. Intentional Embarrassment D.W. was embarrassed by having Respondent grab his face and ask him to look at her when she was talking to him in front of his classmates. Likewise, K.B. was embarrassed when she thought her classmates saw Respondent touch her head to wake her. L.C. did not testify that she was embarrassed by Respondent’s contact with her in the cafeteria. L.C. was certainly angry about the interaction, as were D.W. and K.B. The evidence is insufficient to support a finding that Respondent intended to subject the students to embarrassment or to disparage them in front of their classmates. As to D.W., Respondent’s intent was clearly to redirect the student and encourage more positive behavior. As to L.C. and K.B., the evidence is insufficient to establish that Respondent’s intent was anything other than to get the students’ attention and keep them on track.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety, and the Education Practices Commission take no action against Respondent’s certificate. DONE AND ENTERED this 8th day of February, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 8th day of February, 2018.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the School Board of Pinellas County dismiss the charges against Respondent, Larry J. Spann, in this case. RECOMMENDED this 8th day of July, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 8th day of July, 1985.
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated August 28, 2014? If so, what is the appropriate disciplinary penalty?
Findings Of Fact The Parties Petitioner, as the Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals, who hold a Florida Educational Certificate, when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat. The parties stipulated to the following about Respondent, Susan Harrison: The Respondent holds Florida Educator’s Certificate 825145, covering the area of Mathematics, which is valid through June 30, 2014. At all times pertinent hereto, the Respondent was employed as a Mathematics Teacher at Coral Reef Senior High School in Miami-Dade County School District. Joint Prehearing Stipulation. At the time of hearing, Ms. Harrison was still teaching at Coral Reef Senior High School. Ms. Harrison is of Cuban heritage. “Both of [her] parents came over in 1960 from Cuba. They fled Cuba to come to this country.” Hr'g Tr. 205. Ms. Harrison is married to an African-American man. A Series of Unfortunate Remarks Turkish Music S.K. is of Turkish heritage; both of her parents are Turkish. She referred to herself at hearing as being “from Turkey.” Hr'g Tr. 28. S.K. is a Muslim. During the 2011-12 school year, S.K.’s first year in high school, she was a student in Ms. Harrison’s Honors Geometry class. On September 13, 2011, Ms. Harrison taught the class a lesson in Space Geometry and assigned them the activity of drawing three-dimensional shapes on isometric paper. Because the activity is “creative, the students were working in pairs which required mutual collaboration and discourse.” Pet'r's Ex. 4 at 22. When working in groups and engaged in creative activity, it is typical of Ms. Harrison to allow her Honors Geometry class to play music because she finds it encourages the students’ creativity. After listening to the Beatles for some time, Ms. Harrison asked the class if anyone had other music to play. S.K. announced, “‘Oh, I have my iPod. I can play music.’” Hr'g Tr. 28. S.K. did not say the music on her iPod was “Turkish.” S.K., moreover, did not have Turkish music on her iPod. She does not listen to it because, as she explained at hearing, “my Turkish is not . . . the best, so I don’t really understand the music, so it’s never been my genre, I guess you could say.” Hr'g Tr. 28. Ms. Harrison declined S.K.’s offer and in doing so referred to her music as “terrorist music.” Reports of six students (including S.K.) dated October 5, 2011, who remembered hearing the remark, differed as to the exact reply by Ms. Harrison, but those who heard and remembered the remark made by their teacher all agreed that Ms. Harrison used the words “terrorist music” to describe S.K.’s offer. S.K. described the reaction of the students who sat near her: And the girls I was sitting with, they were also asking me, “S., did you hear that?” And “Did you hear what she said?” And I was, like, “Yeah, I did.” And they’re, like, “You’re not going to say anything?” I was, like, “I don’t know what to say.” Hr'g Tr. 27. S.K. later described her reaction as shock and confusion. When counsel asked her why at hearing, she offered this explanation: Because I’ve never been faced with a problem like that before and because I was very young . . . I was just starting high school and it was the beginning of the school year, and I was . . . already nervous from starting a new school with all these older kids, and I just – I don’t know. I was young. I didn’t know how to react. Hr'g Tr. 29. In contrast to S.K.’s testimony and statements of students in accord, Ms. Harrison’s assertions of what took place during the incident varied. At first, in making a written statement on Miami-Dade County Public Schools letterhead as to “Incident #T02369,” see Petitioner’s Exhibit 4, she did not relate that she had used the word “terrorist” to describe S.K.’s music. The reason for omitting the central word she had uttered that led to the moment in the class becoming classified by the school as an incident under investigation was because she dismissed it as a “non-event” and she, therefore, “left a lot of things out [of the written statement].” Hr'g Tr. 118. Later, despite her “short memory,” Hr'g Tr. 117, and after having thought and thought about what happened, she recalled the event in detail. Compare Petitioner’s Exhibit 4 with Petitioner’s Exhibit 1 and her testimony at hearing. See also Hr'g Tr. 117- 118. She testified that she had asked what type of music it was that S.K. had offered to play. She averred at hearing and in her deposition that after the inquiry and over the noise of the classroom, she had heard the response from the students as “terra music” and then “terrish music” and, making out the responses as best she could, only then did she say: “‘Terrorist music?’ . . . ‘I can’t play terrorist music.’” Hr'g Tr. 120. 10. While the product of Ms. Harrison’s attempt to recollect is an explanation that makes sense and, standing alone, seems believable, it was not corroborated by anyone present. Written statements were submitted by eight students, including S.K. One of the students did not “remember any negative comments in Ms. Herrison [sic] class.” Pet'r's Ex. 6 at 16. The entirety of another of the students’ statement is that “Ms. Harrison did not say any bad comments about music during the class.” Id., at The statements of the five remaining students (other than S.K.) all assert that the word “terrorist” was used by Ms. Harrison. None of the students’ statements describe any difficulty Ms. Harrison had hearing or any questions by her about “terra” or “terrish” music. Nor was there any explanation from any of the class' students, who submitted written statements or testified at hearing, as to why the remark would have been an innocent one due to difficulty in hearing or any misapprehension on the part of Ms. Harrison. Ms. Harrison’s accounts differ materially from S.K.’s distinct, precise, explicit, and, therefore, credible testimony. Of particular relevance in finding S.K.’s version of events more credible is her distinct memory of the incident. Weighing heavily in S.K.’s favor is her straightforward testimony that she: first, offered only to play music on her iPod and did not verbally offer to play “Turkish” music; second, does not have Turkish music on her iPod; and third, does not listen to Turkish music because she does not understand it well enough due to a lack of fluency in Turkish. Aliens and UFOs To signal the end of time for a test in her classes, Ms. Harrison used a device that sounded an alarm. The alarm had several sounds. One of the sounds was similar to that associated with an unidentified flying object (UFO) or, as Ms. Harrison described it at hearing, “[i]t was like a spaceship, woo, like that." Hr'g Tr. 157. On a number of occasions when the device sounded the UFO-type alarm, Ms. Harrison made a comment to one of her students, C.B., along the lines of “your family is calling you.” On another occasion, when the class was engaged in an activity that utilized a picture of an extra-terrestrial alien on the board, Ms. Harrison said to C.B., “Oh, C., I picked this one especially for you.” C.B. was approximately 16 years of age when the comments were made. She did not find them to be funny no matter how Ms. Harrison intended them. In a written statement submitted to the school district, C.B. described her reaction, “it made me feel bad because she was embarrassing me in front of the whole class and I came home crying." Pet'r's Ex. 6 at 39. Asked about that moment at hearing, she explained why she had been so upset: Because I was just over her, like, making these comments . . . it wasn’t the first day, because she . . . repeatedly called me an alien. It was probably . . . when it got excessive, that I was just tired of it. Hr'g Tr. 107. C.B. is of Haitian heritage. When she told her mother about the comments, her mother e-mailed Ms. Harrison and contacted the school authorities. Eventually, C.B. met with Mr. Mejia, the assistant principal at Coral Reef High School. After her meeting with Mr. Mejia, Ms. Harrison stopped the practice of referring to C.B. or her family as extra-terrestrial aliens. Ms. Harrison was aware of C.B.’s heritage. See Hr'g Tr. 159. But when she made the comments, it was not directed to C.B. or her family being Haitian; nor was it intended in any manner as a reference to undocumented or illegal aliens. The comments referred to C.B. and her family as being extra- terrestrial or from outer space. C.B. was described by other students to the effect that she had a distinct personality and was in her own world. Ms. Harrison perceived C.B. in much the same way. As Ms. Harrison testified, therefore, the comments were not “anything about her being Haitian, anything about her nationality. It was just her overall personality.” Hr'g Tr. 158. From the beginning of the school year, Ms. Harrison had had trouble with C.B. being on the telephone in class and being “flighty.” Id. Eventually, Ms. Harrison telephoned her mother to discuss C.B.’s classroom behavior. Through these encounters, Ms. Harrison felt like she had a connection to C.B. and her family. Because of C.B.’s behavior in class, her personality, and Ms. Harrison’s relationship with C.B.’s mother, Ms. Harrison mistakenly thought C.B. would not take offense at a reference to her or her family as being from “outer space.” However innocent Ms. Harrison’s intent, the comments singled out C.B. in an unflattering manner, embarrassing and upsetting her. C.B.’s reaction was reasonable. Ms. Harrison’s expectations were not. The consequences of the comments to C.B. should have been expected since she was a 16-year-old girl in the midst of a classroom of students and most importantly, since the comments were made by the teacher of the class. Crying to Mommy In the fall of 2011, Ms. Harrison also taught an Algebra I class. D.G. was a student in the class. She submitted a written statement to the Coral Reef Administration that Ms. Harrison had said the students’ prospects after high school would be no more than flipping burgers and strumming their lips, as if they were a musical instrument, indicating a bleak future. D.G. took the comments to mean that Ms. Harrison intended to communicate that the students’ generation was “dumb.” D.G. said the comments lowered her self-esteem because, in her words, “math for me is not my strongest subject, so I was already . . . doubting myself, and these comments just made it even worse.” Hr'g Tr. 65. Ms. Harrison admits making the remark about flipping burgers and that she strummed her lips to indicate what the future held for them, but she did not refer to D.G.’s generation as “dumb.” The remarks were not intended by Ms. Harrison as a comment about D.G., but on students in the class whose behavior was disruptive. She wanted them to take education as seriously as she does. Her purpose was to encourage the disruptive students to behave and buckle down to their studies so that they would succeed after they left school. Ms. Harrison’s motive was not understood by D.G. She complained to her mother. D.G.’s mother wrote to Ms. Harrison in Spanish, and Ms. Harrison called D.G.’s mother and talked to her by telephone. The next day, Ms. Harrison, with the intention of referring to D.G., made the comment to the class to the effect, “Who else wants to go home crying to their mommy?” The class laughed at the question, and the laughter embarrassed D.G. Ms. Harrison felt that D.G. had not fully informed her mother that the “flipping burger” comments and the strumming of her lips were because of misbehavior in the class. After she had spent a full hour on the telephone with D.G.’s mother, Ms. Harrison was upset. She argued that the reference to “crying to your mommy,” was not inappropriate under circumstances in which she had to explain the context of her comments about flipping burgers and the strumming of her lips to D.G.’s mother, a context which she believed justified her earlier words and actions. Reprimand On October 28, 2011, Ms. Adrienne Leal, Principal of Coral Reef Senior High School, issued a written reprimand to Ms. Harrison with regard to the “terrorist music” comment. The written reprimand, in the form of a Memorandum, see Petitioner’s Exhibit 5, after describing the details of the incident the previous September 13, states: This infraction was found to have Probable Cause by Preliminary Personnel Investigation, Administrative Review, Case # T-02369. By making that comment, you have violated School Board Policies 3210, Standard of Ethical Conduct, and 3210.1, Code of Ethics. It is your responsibility as a Miami Dade County Public School (M-DCPS) employee to conduct yourself in a manner that reflects credit upon yourself and the district. Therefore, you are hereby officially reprimanded for the above-stated actions. Id. You are directed to immediately refrain from making any discriminatory, disparaging or negative remarks toward students. The Amended Administrative Complaint’s Material Allegations In addition to alleging that Ms. Harrison was disciplined for violations of the district’s rules and the Code of Ethics, the Amended Administrative Complaint makes six specific material allegations of inappropriate and disparaging comments to students. Alleged to have occurred in the Fall of the 2011-2012 school year, they are: Female student S.K., who is Muslim and of Turkish heritage, offered to play music on her iPod portable music play[er] for the class. The Respondent commented that she didn’t want to listen to “terrorist music.” The Respondent’s comments was [sic] heard by other students and was upsetting to S.K., who was removed from Respondent’s class; and The Respondent used an alarm devise for testing which omitted [sic] a UFO type sound. When the sound occurred, Respondent made several references that female student C.B., who is of Haitian heritage, was an alien. The Respondent’s comments were heard by other students and were upsetting to C.B. The Respondent made derogatory comments if a student asked a question more than once including “Your generation is dumb and all of you will end up flipping hamburgers.” Female student, D.G., was offended by Respondent’s comments and told her parents. D.G.’s mother wrote an e-mail to cease and [sic] such demeaning comments. Respondent became upset over the e-mail and during class commented on the e-mail, stating “Who else wants to go crying to their mommy?” or words to that effect. The class laughed at Respondent’s comments which embarrassed D.G. Respondent has also made comments to the class that “Their generation is so dumb that you’re going to strum your lips thinking it was a musical instrument.” Respondent would flap her lips with her index finger to demonstrate. Respondent admitted to her administrator of making negative remarks, such as “flipping burgers for a living” and flapping her lips using her index finger, as if all of the students were dumb. Amended Administrative Complaint, at para. 3., second page. Other Students’ Impressions Sadam S.A. is from Honduras, but his family is from Jordan. S.A.’s first name is Sadam because his family “like[s] Arab names.” Hr'g Tr. 183. S.A. attended Coral Reef Senior High School from the 9th through the 12th grade. During that time, he was in Ms. Harrison’s Algebra II class. Ms. Harrison never made fun of S.A.’s name. Nor did she ever make comments about any of the students’ national origin in his Algebra II class. She never referred to any of the students in the class as “dumb” or “stupid” or any similar adjective. S.A. was in Ms. Harrison’s class during the 2011-12 or 2012-13 school year; he could not remember which. He was not, however, in S.K.’s class when the remark was made by Ms. Harrison about “terrorist music.” K.B. K.B. was a student in three of Ms. Harrison’s math classes from 2011 to 2014. One of the classes was the Honors Geometry class in which the “terrorist music” comment was made. K.B. heard S.K. ask to play her music on September 13, 2011, but the class was “loud enough,” Hr'g Tr. 189, that he did not hear Ms. Harrison use the word “terrorist.” S.K. sat six or seven seats behind K.B., and he does not remember anyone in the class that seemed to be upset by the colloquy between Ms. Harrison and S.K. K.B. described the “UFO-type” sound when Ms. Harrison’s alarm went off as “an old movie alien abduction sound.” Hr'g Tr. 190. He remembers C.B. as a student “in her own little world,” id., and he took Ms. Harrison’s remarks to C.B. to be that C.B.’s “parents are aliens from outer space and they’re coming to get her.” Id. K.B. was “born American,” but both his parents and his ancestry are Jamaican. Ms. Harrison never made any comment about his national origin, nor has he ever heard Ms. Harrison make any prejudicial statement about students in the three classes he took from her. He described Ms. Harrison at hearing: “She has a good humor. She’s a good teacher.” Hr'g Tr. 191. K.B. remembers the students laughing at Ms. Harrison’s remark about C.B.’s family the first time Ms. Harrison said it. But he doesn’t think they laughed the other three, four, or five times Ms. Harrison made the remark because by then it was “old news.” Hr'g Tr. 192. A.C. A.C. was in Ms. Harrison’s Honors Geometry class with S.K. and C.B. when he, like S.K., was a freshman. The Beatles music that played before the “terrorist music” comment was from his iPod. A.C. remembers the incident, but he did not “hear exactly what was said” because “the whole room was being sort of rowdy. It was towards the end of the period, so everyone was being loud.” Hr'g Tr. 197. With regard to the comments made to C.B., A.C. took them as a joke. His assessment of the environment in the class was that it was “very light . . . it was sort of a jokey, light atmosphere for most of the year,” Hr’g Tr. 199, so he did not “think there was any . . . weight behind [Ms. Harrison’s] words.” Id. When asked at hearing if he had ever heard Ms. Harrison make an inappropriate remark in class, he replied, “Not that I can remember. Not that I can think of.” Id. Ms. Harrison’s Record and Devotion to Teaching Ms. Harrison has been teaching in the Miami-Dade County School System since the year 2000. She has never been disciplined by the Department of Education. She has never called any of her students “dumb or stupid.” She has never made fun of any of her students’ national origin. She professed at hearing to have never intentionally embarrassed any of her students. At the close of the hearing and her defense, Ms. Harrison summed up her devotion to her profession and the nature of flawed human beings: I became a teacher for all of the right reasons . . . in my late 30s. And I love to teach. I love being with the kids. * * * I take education very seriously. And I want my kids to be the best they can. And I take on my students as my kids, almost as if they were my own . . . sometimes I’m a little bit stricter with them . . . sometimes you can be a little bit more light-hearted. There [are] so many different personalities. But I love to teach and I would never really do anything – if I hurt somebody’s feelings and they came to me –- I . . . [took] one student under my wing, because . . . her mother had cancer, and I did everything I could to try to encourage her . . . . So I try to do as much as I can to help these kids out. That’s the type of teacher I am. * * * ometimes I’m not perfect, and I’ll say something that somebody hears the wrong way, but we’re all human beings. That’s . . . just the nature of . . . being a human being . . . . Hr'g Tr. 206-207.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty as charged under Counts 1 and 3 of the Amended Administrative Complaint, not guilty as charged under Count 2, and that the penalty be placement of her educator’s certificate on probation through the expiration of the 2015-16 school year with a condition of probation that she complete course work at an appropriate level in the areas of classroom management and sensitivity in communications with students. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 22nd day of January, 2015. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Branden Vicari, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 (eServed) Charles T. Whitelock, Esquire Whitelock and Associates, P.A. Suite E 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
