The Issue The issues to be decided are: Whether Ms. Banfield should be terminated from her employment with the School Board of Palm Beach County effective July 22, 1987, for misconduct in office and gross insubordination based upon an alleged inability to work in a cooperative manner with her peers and supervisors after repeated counseling and warnings were given to her to adjust her attitude. Whether if there is no basis for discharge, the evidence supports some lesser penalty. Whether Ms. Banfield is entitled to back pay if she is not terminated. Whether an award of attorney's fees is appropriate.
Findings Of Fact Ms. Banfield is a non-instructional employee of the School Board of Palm Beach County. She was initially employed at Pahokee Jr.-Sr. High School as an Office Assistant II on an interim basis, effective September 21, 1981. She resigned from that position effected November 13, 1981. Ms. Banfield was re-employed by the School Board at Pahokee Jr.-Sr. High School an a Media Clerk I, effective August 17, 1982. She was transferred to the position of School Office Assistant II, effective August 4, 1983, and has served in that position since that time. Ms. Banfield received formal evaluations of her work performance on February 17, 1984; June 4, 1984; October 1, 1984; January 10, 1985; June 12, 1986; and June 16, 1987. Ms. Banfield received memoranda from two principals at Pahokee Jr.-Sr. High School (Jack Redding and Eugenia Jones) regarding her work performance. She received these on September 17, 1984, January 24, 1986, and August 29, 1987. On May 11, 1987, Ms. Banfield was involved in a discussion with a classroom teacher at Pahokee Jr.-Sr. High School, Kay Ventura. On June 19, 1987, Ms. Banfield received a notice of suspension with pay, recommendation for suspension without pay, and recommendation for termination of employment based upon the charge of misconduct in office and gross insubordination. The School Board of Palm Beach County suspended Ms. Banfield without pay effective July 8, 1987, pending final action on the superintendent's recommendation for termination. The following Findings of Fact are based on evidence adduced at the hearing. As an Office Assistant II, Ms. Banfield has been assigned to work as a receptionist and secretary in the guidance department of the school which is located in a trailer apart from the main school building. Ms. Banfield is employed under an annual contract of employment which had been renewed yearly. The Superintendent of Schools recommended that Ms. Banfield receive an annual contract of employment for the 1987-88 school year. Before the event which is the focus of this dismissal proceeding, Ms. Banfield had received prior notices that her work performance was inadequate due to the "nasty, harsh, abrupt" manner in which she dealt with persons she came in contact with (Petitioner's exhibit 4, dated September 17, 1984). Ms. Banfield was informed that "unless her performance was entirely satisfactory, her continued employment with the District School Board would be in jeopardy." (id.) On October 1, 1984, her employment evaluation contained the comment that I strongly recommend that you seek to improve the tone quality of your voice, however, improvement is noted. Further improvement is needed. (Plaintiff's exhibit 5) Ms. Banfield was recognized as "a very hard worker," however, (id.) in spite of these criticisms, Ms. Banfield's contract was renewed. By January 1985, the employment evaluation noted that the tone quality of her voice had improved tremendously (Petitioner's exhibit 7). By January 1986, however, the new principal of Pahokee Jr.-Sr. High School, Eugenia Jones, wrote Ms. Banfield about the unpleasant attitude and negative tone of voice Ms. Banfield used in the guidance office and on the telephone. Ms. Jones made it clear that such behavior to parents and visitors to the guidance office was unacceptable. (Petitioner's exhibit 8). The June 1986 employment evaluation of Ms. Banfield pointed out that when informed of deficiencies, Ms. Banfield was pleasant but soon reverted back to the same negative behaviors. It was also noted that Ms. Banfield displayed a negative attitude when given additional assignments, and needed to improve her tone of voice. She was also recognized for knowing her job and keeping accurate records. (Petitioner's exhibit 9). Near the opening of the 1986-1987 school year, Ms. Banfield was given a written reprimand by the school principal as the result of an incident which involved the assistant principal, Mr. Thompson. A parent with a child was at the school office trying to find out where to register. The school secretary asked Ms. Banfield where registration was taking place and Ms. Banfield responded, "In our [the guidance) office" and walked away. The assistant principal saw this, and called Ms. Banfield back to escort the parent to the guidance office. After she had been called the first time she did not respond, so the assistant principal called her again. She told the assistant principal in an arrogant voice, "I said in my office, good God." The assistant principal then told her that he only had called her back to escort the parent to the guidance office. Ms. Banfield replied, "Then send her on." Ms. Banfield later was informed by the assistant principal that a display of an attitude problem in front of parents would not be tolerated, and he made a memorandum of the incident which he sent to Ms. Jones, the principal. (Petitioner's exhibit 10). This resulted in a follow-up reprimand from Ms. Jones to Ms. Banfield pointing out that Ms. Banfield's working relationships, unpleasant attitude, and telephone manners had been discussed with her on numerous occasions and that it was expected that Ms. Banfield would provide a warm welcome to all parents and others visiting the school. (Petitioner's exhibits 11). She was also informed that further incidents would result in proceedings to terminate her employment. Ms. Banfield acknowledges she had received warnings from both her former principal (Mr. Redding) and current principal (Ms. Jones) about her attitude. A classroom teacher assigned to teach educable mentally handicapped students entered the guidance office to leave a note for one of the guidance counselors, Joy Gates, on May 11, 1987. At that time, Ms. Banfield's immediate supervisor, Gwendolyn Johnson, the guidance coordinator for the school, was in her own office which is in the trailer where Ms. Banfield serves as secretary and receptionist. Ms. Johnson was meeting with a classroom teacher, Kent Heitman. The door to Ms. Johnson's office was open. Also present in the office suite was a student assistant, Teresa Young. Ms. Ventura asked Ms. Banfield whether Ms. Banfield had an envelope or piece or paper in which she could cover the note she wished to leave for Ms. Gates. The note had to do with a student and Ms. Ventura wished to enclose it to keep the matter confidential. Ms. Banfield told Ms. Ventura she did not have an envelope or any paper to give her. Ms. Banfield was standing at the copy machine at the time. She was responsible for the operation of the copier. Ms. Ventura approached the copy machine and removed a piece of paper from the tray which was not being used at that moment by Ms. Banfield for copying to enclose the note. Ms. Banfield became very angry with Ms. Ventura and began shouting at her. Ms. Johnson and Mr. Heitman heard the shouting and came out of Ms. Johnson's office. Ms. Ventura then went into Ms. Gates' office and stated that she was not going to put up with Ms. Banfield's conduct. Ms. Ventura closed the door to Ms. Gates' office and respondent continued to shout at Ms. Ventura through that closed door. Ms. Ventura had closed herself in Ms. Gates' office because she was afraid of the respondent. Ms. Gates then entered the trailer and found Ms. Ventura in her office. While Ms. Gates discussed the incident with Ms. Ventura, they could hear Ms. Banfield outside the door talking loudly about what Ms. Banfield was going to do as a result of the incident. It is not clear, however, that there was anyone to whom Ms. Banfield was speaking. Ms. Banfield was obviously extremely upset by Ms. Ventura's self-help in obtaining a piece of paper from the copy machine at which Ms. Banfield had been standing, but which Ms. Banfield had not been using at the time. Ms. Ventura removed the sheet of paper from the feed mechanism. Ms. Banfield's expression of anger to Ms. Ventura, and her continued tirade after Ms. Gates returned to the office and was discussing the matter with Ms. Ventura in Ms. Gates' office, was wholly out of proportion to whatever offense Ms. Banfield believed she had suffered from Ms. Ventura. Ms. Banfield reported the incident to the principal, Eugenia Jones, at the suggestion of Gwen Johnson. When Ms. Banfield discussed the incident with Ms. Jones, she was still speaking loudly, shaking, and enraged. Ms. Jones thereafter requested that the assistant superintendent for personnel relations investigate the matter and recommended that disciplinary action be taken against Ms. Banfield. After the incident with Ms. Ventura, Ms. Gates discussed with Ms. Banfield concerns about Ms. Banfield's behavior. For example, on one occasion Ms. Gates was looking for a form usually kept on a file next to Ms. Banfield's desk. While standing along side Ms. Banfield's desk looking for the form, Ms. Banfield asked Ms. Gates what her problem was and made it clear that she did not want Ms. Gates looking for forms on Ms. Banfield's desk. The forms Ms. Gates was looking for are ones which Ms. Gates uses in the performance of her duties. Ms. Gates had also been told by school personnel that they did not like to come to the guidance office because of Ms. Banfield's behavior. On June 16, 1987, Ms. Jones gave Ms. Banfield a written performance evaluation which found that her conduct was unsatisfactory in dealing with fellow staff members, and on June 19, 1987, informed Ms. Banfield that charges of misconduct in office and gross insubordination were being brought due to Ms. Banfield's deficient record of performance in dealing with others. Ms. Banfield was suspended without pay from her position effective July 8, 1987, and this proceeding ensued.
Recommendation It is recommended that a final order be entered terminating the employment of Ms. Banfield as an annual contract employee with the School Board of Palm Beach County for misconduct and gross insubordination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1060 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2964 The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 129.59(2), Florida Statutes (1985). Rulings on Petitioner's proposed findings of fact are as follows: Covered in Conclusions of Law. Covered in finding of fact 1. Covered in finding of fact 2. Generally covered in finding of fact 3, otherwise rejected as cumulative. Covered in finding of fact 3, otherwise rejected as cumulative. Generally covered in finding of fact 3. Rejected as unnecessary. Covered in finding of fact 4. Covered in finding of fact 4. Generally covered in the final sentence of finding of fact 11. Covered in finding of fact 6. 12-15. Covered in finding of fact 5. 16-18. Covered in finding of fact 7. 19-20. Covered in finding of fact 8. 21-22. Covered in finding of fact 9 and 10. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. 26-29. Rejected as argument rather than a finding of fact. The Hearing Officer agrees that Ms. Young's version of the incident is not the more credible, and has accepted the version explained in the testimony of Gwendolyn Johnson, Kent Heitman, Joy Gates, and Kay Ventura. Rulings on Respondent's proposed finding of fact. Covered in finding of fact 5. Rejected as unnecessary and irrelevant. Covered in finding of fact 5. Covered in finding of fact 5. Rejected because of the incident recounted by Assistant Principal Thompson did occur as explained by Mr. Thompson in his testimony and his contemporaneous memoranda, and does constitute a behavior problem of Ms. Banfield. Covered in finding of fact 5. Covered in finding of fact 5. Rejected, the version of the event which is accepted is found in finding of fact 5. Covered in finding of fact 7. Covered in finding of fact 7. Rejected because whether Ms. Ventura may be aloof or unfriendly has nothing to do with the extreme reaction of Ms. Banfield, and aloofness would be an inadequate provocation for the reaction exhibited by Ms. Banfield. Rejected as unnecessary. Covered in finding of fact 7. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 7. 17-18. Rejected because the Hearing Officer finds that at the time Ms. Ventura removed the paper from the feed tray of the copy machine, Ms. Banfield was not operating the copy machine. Generally covered in findings of fact 7. Covered in finding of fact 7 but I do not find that Ms. Ventura slammed the door to Ms. Gates' office. Rejected because the Hearing Officer does not find that Ms. Ventura emerged from Ms. Gates' office and yelled at Ms. Banfield. Rejected because the Hearing Officer cannot accept the version of the incident portrayed in the testimony of Ms. Young. Without ascribing any motivation to Ms. Young, the Hearing Officer find that the more credible testimony was given by other witnesses. Generally covered in finding of fact 10. Covered in finding of fact 10. Covered in finding of fact 2. Covered in the prehearing stipulation. Covered in finding of fact 3. That Ms. Banfield was recognized for performing her job functions is covered in findings of fact 3 and 4. COPIES FURNISHED: Abbey G. Hairston, Esquire Palm Beach County School Board Post Office Box 24690 West Palm Beach, Florida 33416-4690 Mark A. Cullen, Esquire 1030 Lake Avenue Lake Worth, Florida 33460 Thomas J. Mills Superintendent of Schools Post Office Box 24690 West Palm Beach, Florida 33416-4690
The Issue The issue in this case is whether the Florida teaching certificate of Respondent, Edith E. Gonzalez, should be revoked, suspended or otherwise disciplined for the alleged violations set forth in an Administrative Complaint entered on September 21, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent hereto, Respondent has been a certified teacher in Florida holding Certificate No. 194394. Respondent is certified in the areas of administrative supervision, elementary education, varying exceptionalities, French, Spanish, gifted and special learning disabilities. Her certificate is valid through June 30, 1996. At all times pertinent hereto, Respondent was employed as a teacher at Miami Carol City High School (the "School") in the Dade County School District. The students enrolled in the Dade County Public School System hail from a variety of ethnic and cultural backgrounds. Miami Carol City High School has a student population that is predominantly black. Respondent is 62 years old and will be 63 in December. She is an immigrant from Lima, Peru and Spanish is her native language. Respondent has been a teacher for the School Board for 24 years. She also taught for 5 years in Catholic schools. In addition, she has taught in Korea and Ecuador. The evidence indicates that from 1985 through 1992, the School Board received various complaints regarding Respondent and/or her conduct in the classroom. Except as set forth below, the specific nature of those complaints was not established in this proceeding. In 1987, Respondent was investigated by the Professional Practices Services of the Education Practices Commission for inappropriate discipline techniques. As a result of that investigation, Respondent entered into a settlement agreement pursuant to which Respondent was placed on probation for one and a half years and issued a letter of reprimand. During the 1991/92 school year, the School Board was requested by the School to investigate allegations of inappropriate and derogatory comments purportedly made by Respondent. A formal fact finding investigation was conducted by the School Board. After the investigation was completed, a "conference for the record" was held between Respondent and School Board officials during which the investigative report was reviewed and Respondent's entire record with the School Board was discussed and considered. Respondent did not have an opportunity to review or provide input into the investigation until the conference for the record. During the conference, the School Board advised Respondent that the investigative unit concluded that the allegations of inappropriate and derogatory comments were true. Respondent was further advised that the Regional Supervisor for the School Board was going to initiate the steps necessary to suspend and dismiss her from employment. The evidence established that the School Board's decision to seek termination of Respondent's employment was based upon a review of her entire employment record with the School Board. The School Board investigation was completed on February 10, 1992, and the School Board moved to suspend Respondent and terminate her employment on or about April 1, 1992. While Respondent initially challenged the termination of her employment, on or about June 4, 1992, she decided to resign her position without a hearing. As a result, she never had an opportunity to confront the witnesses and/or challenge the investigation conducted by the School Board. The only direct evidence presented in this case regarding racial slurs and/or inappropriate and derogatory comments by Respondent was testimony from D. P., who was a student in Respondent's fourth period Spanish Class during the 1991/92 school year, and from Roxanne Mendez, who worked as a Media Specialist at the School. Their testimony was insufficient to establish that Respondent was racially prejudiced, or that she intentionally belittled, degraded, or made fun of students. The evidence established that Respondent's fourth period Spanish class was very difficult to control and included many students who misbehaved on a regular basis. Respondent admittedly had a difficult time in dealing with the class. On a couple of occasions, out of frustration, she told the students they were acting like "animals" or "savages" and told them they needed to be locked in a cage. While these comments may have been insensitive, they were not intended as racial slurs. The only student in the class who testified admitted that the comments were only made when the class was acting up and he was not personally offended by them. The evidence also established that, on some occasions when Respondent could not remember the name of a student, she would refer to them as "boy" or "girl". These comments were made to both black and white students and were not intended to be racially disparaging. While Petitioner contends that Respondent advised her students that she was prejudiced against blacks, the evidence established that any such comments were made sarcastically and/or in jest and were not taken seriously by the students. On one occasion when the students were particularly rambunctious, Respondent reprimanded them and told them they were acting "like a bunch of Haitians just off the boat." The exact circumstances surrounding this comment were not clearly established. Apparently, the aunt of one of the students was present when this remark was made and took great offense. As a result of this incident, Respondent's effectiveness as a teacher at the School was reduced. No evidence was presented of any other incidents which would justify discipline or revocation of Respondent's teaching certificate. Respondent clearly had a difficult time dealing with the serious discipline problems that existed at the School. Many of the students made virtually no effort to learn. On several occasions, students deliberately disrupted classes and Respondent's class in particular. Some of the students referred to Respondent as "Taco Bell." Based upon the evidence presented, it is concluded that Respondent was a dedicated teacher who was trying her best in a difficult situation. Respondent often emphasized to her class the need to be tolerant and overlook cultural differences with other individuals. R. W. was one of Respondent's students during the 1991/92 school year. Even though she was not in the fourth period class, her testimony was very persuasive and is given great weight. She testified that at no time during that year did she ever feel uncomfortable in any way by what the Respondent said or did in the classroom. She also testified that the Respondent never showed disrespect toward her or the class and that the Respondent never referred to students in any way which would indicate that she was prejudiced against black children. The only other student who testified, D. P., confirmed that Respondent did not make him feel ill at ease or uncomfortable or hurt or sad or offended in any way. According to him, the only critical comments made by Respondent were directed to students who were misbehaving. While on some occasions Respondent's comments may have been insensitive and ill- advised, the evidence was insufficient to establish that Respondent was racially prejudiced, and/or that she intentionally embarrassed students or deliberately made racial slurs or disparaging comments. The evidence presented regarding Respondent's personal life confirmed that she harbors no racial prejudices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 231.28(1)(f), Florida Statutes, as alleged in Count I of the Administrative Complaint, but dismissing the remaining Counts. As a result of her violation of Section 231.28(1)(f), Florida Statutes, Respondent should be reprimanded and placed on probation for one year. DONE and ENTERED this 18th day of August 1993, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993.
Findings Of Fact A. The Parties. 1. The Petitioner is the Bradford County School Board. 2. The Respondent is Dewey McKinney, an employee of the School Board. 3. Mr. McKinney served as a school principal for the School Board for approximately nineteen years, including the period from approximately November, 1988, to October 14, 1991. Mr. McKinney previously served as an assistant principal for four years. Mr. McKinney was employed as "principal" pursuant to a Continuing Contract of Employment for Instructional Personnel of the Public Schools entered into between Mr. McKinney and the School Board on or about March 5, 1974. Respondent's exhibit 8. At all times relevant to this proceeding, Mr. McKinney was employed by the School Board. The evidence failed to prove that the School Board has taken any other disciplinary action against Mr. McKinney. Mr. McKinney's Requests to Lula Marie Thornton for Prescription Drugs. Lula Marie Thornton was hired in 1976 by Mr. McKinney as school secretary at Starke Elementary School. Ms. Thornton worked for Mr. McKinney from 1976 to 1977 and from 1988 until 1991. In September or October, 1989, Ms. Thornton fractured her elbow. Ms. Thornton's physician prescribed Tylenol III, which contains codeine, a controlled substance. Ms. Thornton took the Tylenol III to school with her the day after injuring her arm in case the pain became severe. Mr. McKinney noticed Ms. Thornton's injury and inquired about it. Mr. McKinney specifically asked Ms. Thornton what medications her physician had prescribed. Ms. Thornton told Mr. McKinney that she had been prescribed Tylenol III and showed him the prescription bottle. Mr. McKinney told Ms. Thornton that he had been experiencing severe headaches at night. Mr. McKinney asked Ms. Thornton if he could take a couple of her Tylenol III pills so that he could take them at night to help him sleep. Mr. McKinney also told Ms. Thornton that he had taken Tylenol III for his headaches before. Ms. Thornton was aware that Mr. McKinney had a history of migraine headaches and that he took prescription medication. Ms. Thornton acquiesced to Mr. McKinney's request and Mr. McKinney took a couple of the pills from the bottle. Ms. Thornton did not see Mr. McKinney take any of the pills she gave him. Ms. Thornton was aware that it was improper to give the prescription medication to Mr. McKinney. Even so, she gave him the pills because he was her boss and she considered him a friend. Mr. McKinney was Ms. Thornton's immediate supervisor and Ms. Thornton knew he would have a great deal of influence in the decision of the Superintendent as to whether her annual employment contract was renewed. She also knew that Mr. McKinney signed her annual contract. Consequently, she did not refuse Mr. McKinney's request. Because Ms. Thornton was aware that it was improper to give another person her prescription medications, Ms. Thornton felt very uncomfortable about Mr. McKinney's request and her acquiescence to his request. She did not take the medication back to school after this incident. A couple of nights after Ms. Thornton allowed Mr. McKinney to take some of the Tylenol III, Mr. McKinney telephoned her at her home. This was the first time that Mr. McKinney had ever telephoned Ms. Thornton at her home. Mr. McKinney informed Ms. Thornton that he was experiencing severe headaches, that Tylenol III helped him sleep and asked her whether she still had any of her Tylenol III left. Ms. Thornton told Mr. McKinney that she had some of the medication left. Mr. McKinney then asked Ms. Thornton if she would bring him some of Tylenol III the next day. Despite the fact that Ms. Thornton believed that it was wrong to give anyone else her prescription medications, she told Mr. McKinney that she would bring him some of her Tylenol III. Ms. Thornton again acquiesced to Mr. McKinney's request because he was her immediate supervisor. She felt very uncomfortable, however, with Mr. McKinney's request. The next morning, Ms. Thornton intentionally left the Tylenol III at home and told Mr. McKinney that she had forgotten to bring it. Mr. McKinney replied, "okay." Lying to Mr. McKinney made her feel very uncomfortable. In both incidents, Ms. Thornton was concerned about the possibility of losing her job if she refused Mr. McKinney's request. She was also aware that it was improper to give Mr. McKinney drugs that had been prescribed for her use. These mixed feelings, brought on by Mr. McKinney's requests, caused Ms. Thornton to feel uncomfortable, nervous and upset. Mr. McKinney did not request medication from Ms. Thornton at any other time not reflected in the foregoing findings of fact. Nor did Mr. McKinney act aggravated or express any displeasure toward Ms. Thornton. Mr. McKinney's Requests to Edna Allen for Prescription Drugs. Edna Allen has been employed at Starke Elementary School since 1970. She worked in the same general area as Ms. Thornton. During 1991, Ms. Allen's immediate supervisor was Mr. McKinney. In April or May, 1991, Ms. Allen went to the dentist because of an abscessed tooth. The dentist prescribed a controlled substance, hydrocodone, to relieve Ms. Allen's pain. After receiving the pain medication, Ms. Allen was explaining her dental problem to Ms. Thornton and Geraldine Tomlinson, a clerical employee at Starke Elementary School. Ms. Allen told Ms. Thornton and Ms. Tomlinson what medication she had been given and showed them the bottle. Mr. McKinney was in the same room at the time that Ms. Allen was talking to Ms. Thornton and Ms. Tomlinson. After returning to her desk, Ms. Allen noticed Mr. McKinney come into her area and go into a closet where student awards were kept. Mr. McKinney made several trips in and out of the area. Ms. Allen had not seen Mr. McKinney go into the closet before and she became nervous. After making several trips into the closet, Mr. McKinney stopped at Ms. Allen's desk. He began to tell her that he had a severe headache and asked her for some of her pain pills. Ms. Allen acquiesced and gave him four pills. Ms. Allen felt very nervous and upset over Mr. McKinney's request for her prescription medication. She knew that it was wrong to give him the pills but she also knew that he was her boss. Ms. Allen was worried about the possible adverse consequences to her employment and her evaluations if she declined to give Mr. McKinney the pills. Ms. Allen told Ms. Thornton and Ms. Tomlinson about the incident. They told Ms. Allen that she should not bring prescription pain medication to the office because of Mr. McKinney. Therefore, Ms. Allen only brought one pill with her the next day in her purse. The next morning, Mr. McKinney again asked Ms. Allen for some of her pain pills. Ms. Allen lied to Mr. McKinney and told him that she had not brought any medication with her. Ms. Allen felt very upset and nervous as a result of Mr. McKinney's request. The foregoing events caused Ms. Allen to be distracted from performing her job fully for a day or two. Other than the incidents described in the foregoing findings of fact, Mr. McKinney did not ask Ms. Allen for any medications. Mr. McKinney's Removal as Principal of Starke Elementary School. In the fall of 1991, medications maintained for students at Starke Elementary School were tampered with. As a result of this incident, and the fact that Mr. McKinney was the Principal, Finley J. Duncan, Superintendent of Bradford County Schools from January, 1985, until November, 1992, recommended to the School Board that Mr. McKinney be transferred to Bradford High School as Assistant Principal. At the time of this recommendation, Mr. Duncan believed that Mr. McKinney could meet the responsibilities of assistant principal. Mr. Duncan's recommendation to the School Board was rejected. Mr. Duncan then decided, and Mr. McKinney agreed, that Mr. McKinney should be transferred to the position of Director of General Services, the position that Mr. Duncan currently holds. This agreement between Mr. Duncan and Mr. McKinney was intended to resolve the matter involving the missing medications. It was not intended, however, to resolve any of the charges which are the subject of this proceeding. At the time of Mr. Duncan's recommendation to the School Board that Mr. McKinney be assigned as an assistant principal, Mr. Duncan had been told of accusations against Mr. McKinney concerning requests for medications from coworkers. Assistant Superintendent of Bradford County Schools, Wayne McLeod, had reported to Mr. Duncan that he had been hearing comments concerning Mr. McKinney requesting medications from coworkers. Mr. Duncan, however, took the position that he had no direct evidence that Mr. McKinney had requested medications from coworkers, i.e., no person told him that they had been asked for medications. Consequently, Mr. Duncan did not take any action against Mr. McKinney. While the information that Mr. Duncan had received concerning Mr. McKinney may have been sufficient to warrant further investigation, the evidence failed to prove that any information concerning Mr. McKinney's possible solicitation of medications should have been relied upon by Mr. Duncan to take any action against Mr. McKinney. Nor did the evidence prove that Mr. Duncan, in deciding that Mr. McKinney could effectively fulfill the responsibilities of the position of Director of General Services in the fall of 1991, should have considered the rumors concerning Mr. McKinney. Mr. McKinney's Arrest and Suspension by the School Board. In March, 1992, Mr. Duncan learned from the State Attorney's Office of an investigation of Mr. McKinney. This was the first time that Mr. Duncan learned of the requests for medications from Mr. McKinney to Ms. Thornton and Ms. Allen. On or about April 1, 1992, Mr. McKinney was arrested and charged by information in the Circuit Court for Bradford County with twelve felony counts. Two of those counts involved Mr. McKinney's request for prescription drugs from Ms. Thornton and Ms. Allen. The other counts related to alleged incidents which are not a part of the School Board's charges in this case. As a result of the charges against Mr. McKinney, and in particular, the two counts involving Ms. Thornton and Ms. Allen, Mr. Duncan filed a petition in April, 1992, with the School Board seeking to suspend Mr. McKinney as an employee of the School Board. The petition was amended in June, 1992, to seek Mr. McKinney's dismissal from employment with the School Board. In particular, Mr. Duncan recommended Mr. McKinney's dismissal due to events described in findings of fact 4-20 and 21-30. The Impact of Mr. McKinney's Actions on His Ability to Perform His Duties Effectively. While serving as Principal and as Director of General Services, Mr. McKinney received relatively high ratings for his performance. Those ratings, however, did not take into account the specific actions which are the subject of this proceeding. Mr. Duncan made several statements during his testimony which, if considered alone, may indicate that his recommendation that Mr. McKinney be dismissed and his opinion's concerning whether Mr. McKinney can effectively continue to work for the School Board, is based upon the total number of felony counts Mr. McKinney has been charged with. Mr. Duncan's testimony must be considered as a whole, however. A consideration of all of Mr. Duncan's testimony does not support a finding that his opinions concerning Mr. McKinney's effectiveness are based upon the total number of felony counts Mr. McKinney was charged with. Based upon all of Mr. Duncan's testimony, Mr. Duncan has recommended Mr. McKinney's dismissal, and has concluded that Mr. McKinney can no longer effectively carry out his responsibilities with the School Board because of the events involving Ms. Thornton and Ms. Allen, as described in the amended petition. Mr. McKinney's actions, as described in findings of fact 4-30, involve improper solicitation of controlled substances, placed subordinate employees in an untenable position and constitute the improper use of Mr. McKinney's position and power for his own personal gain. Based upon the nature of the events described in findings of fact 4- 30, Mr. McKinney requested that Ms. Thornton and Ms. Allen, persons under his immediate supervision, provide him with controlled substances in possible violation of criminal laws of the State of Florida. These actions have detrimentally impacted Mr. McKinney's ability to have effective working relationships with persons under his supervision. The community's awareness of Mr. McKinney's actions with Ms. Thornton and Ms. Allen as a result of the smallness of the community, has detrimentally impacted Mr. McKinney's ability to effectively work for the School Board. Mr. McKinney has caused public disrespect for himself and the education profession. Mr. McKinney's effectiveness as a principal and administrator for the School Board has been impaired as a result of the acts described in findings of fact 4-30.
The Issue Whether Respondent, The School Board of Gadsden County (School Board or Respondent), violated the Florida Civil Rights Act of 1992,1 by 1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination. discriminating against the employment of Ronald D. Jones (Petitioner) because of his race, gender, or age, or in retaliation for his engagement in protected activities.
Findings Of Fact Petitioner is a 62-year-old black male who, in the past, has been a substitute teacher for the School Board. Petitioner was eligible to receive a temporary teaching and professional teaching certificate for social sciences, grades 6 through 12, from October 12, 2017, through October 12, 2020, but not for certificates in other educational areas. The School Board is the governing body responsible for the administration of public schools in Gadsden County, Florida. Petitioner’s Discrimination Complaint is based upon the fact that he was not hired for a full-time position at Gadsden County High School for which he applied between August 2019 and January 2020. In his Discrimination Complaint, Petitioner alleges: I have been discriminated based on my sex (male) and my race (black). I also believe I have been experiencing retaliation since 2008 when I filed a complaint with the Florida Commission on Human Relations (FCHR) in 2008. I began working for the School Board of Gadsden County (Gadsden County) in January 2008 as a Substitute Teacher. I substituted in an English position for Gadsden (County) High School on or around January 2019-June 2019. Between August 2019-January 2020, I applied for several positions with Gadsden County but was not hired for any position. Instead, the jobs were filled with individuals outside of my protective class. These positions were for the Graduation Coach position, Teacher on Special Assignment position, and several positions in the Social Studies department. For example, when Mr. Plewa quit during the first week of school in 2019, I substitute taught in the Social Studies Position from August 2019–January 2020, until Gadsden County High School hired a teacher. Mr. Knight, an individual with no experience working within Gadsden County School System and a recent college graduate, was hired for the position. I am currently employed with Gadsden County and have not seen any changes within my workplace. Petitioner has worked as a substitute teacher at different schools within the Gadsden County School District for various periods of time since at least March 2007. He has applied for numerous positions with the School Board over the years, from bus driver to deputy superintendent. This case is the second case that Petitioner has filed against the School Board alleging employment discrimination. His first case against the School Board (First Case) alleged discrimination based on his gender which was tried before the undersigned in 2010 and ultimately resulted in a Final Order dismissing his claim. See Jones v. Gadsden Cty. Sch. Bd., Case No. 10-8570 (DOAH Jan. 19, 2011; FCHR Apr. 13, 2011). Petitioner did not file any exceptions to the Recommended Order in that case or appeal the Final Order. He contends, however, that one of the reasons that the School Board did not hire him is in retaliation against him for filing that case. Prior to 2017, Petitioner’s teaching certificate had been revoked due to a criminal conviction. In a subsequent application, Petitioner disclosed the conviction. This prompted a review by the Office of Professional Practices Services of the Florida Department of Education. On October 7, 2019, the Department of Education issued a letter (Eligibility Letter) to Petitioner regarding his application for his Florida Educator Certificate, stating: Your Application for a Florida Educator Certificate or Athletic Coaching Certificate was referred to the Office of Professional Practices Services by the Bureau of Educator Certification. The Office of Professional Practices Services is charged with reviewing the background history and/or alleged misconduct of persons seeking a Florida educator certificate. The Office of Professional Practices Services has conducted its review and determined that at this time, further action by this office is not warranted. For any questions specific to the review conducted by the Office of Professional Practices, contact the Office of Professional Practices Services at 850-245- 0438. For questions regarding the processing of your application for certification, contact the Bureau of Educator Certification at 1-800-445-6739. As explained by School Board Human Resources Director Sandra Robinson, the Eligibility Letter indicates that the Department of Education conducted a review and that “no further action was required,” meaning that Petitioner was again eligible to apply for a teaching certificate. Ms. Robinson further explained that actual teaching certificates, however, are not issued by the Department of Education until an applicant has been hired for a teaching position. Further, according to Ms. Robinson, the Eligibility Letter means that Petitioner is only eligible to apply for an Athletic Coaching Certificate. The terms of the Eligibility Letter, however, do not limit Petitioner’s eligibility for just an Athletic Coaching Certificate because it also references a Florida Educator Certificate. In the fall of 2019, Gadsden County High School Principal Pamela Jones, a black female, hired Petitioner to fill in as a part-time substitute teacher for a social studies class. Prior to this hiring, Petitioner had interviewed with Principal Jones at the school’s job fair. Between late 2019 and January 2020, Petitioner applied for several full-time instructional positions at Gadsden County High School, including graduation coach, special assignment teacher, and six social studies positions. As part of the application process, Petitioner indicated on his application that he had a prior criminal conviction. The application also asks applicants to provide details of any criminal history that is revealed, but on his applications, Petitioner only indicated “will explain.” As a result of Petitioner’s revelation of a criminal background in his applications, Petitioner’s status appeared as “ineligible” in the School Board’s application database. During all pertinent time periods, Gadsden High School Principal Pamela Jones was responsible for making the final hiring decisions at Gadsden County High School, subject to approval of the School Board. Although Petitioner provided Principal Jones with a copy of the October 7, 2019, Eligibility Letter, which she understood made Petitioner eligible to receive a teaching certificate, she did not hire Petitioner for any of the positions because his name came up as “Ineligible CR” (“CR” standing for criminal record) in the Gadsden County School system. School Board Human Resources Director Sandra Robinson had a similar explanation regarding the effect of the “Ineligible CR” as did Principal Jones. While Ms. Robinson acknowledged that Petitioner was eligible for a teaching certificate, she testified that the Department of Education has no bearing on the School Board’s application process. While acknowledging that the School Board has hired teachers with criminal backgrounds, and advising that Petitioner might be able to obtain a job by further explaining his criminal record when referencing it in his School Board applications, Ms. Robinson was unable to explain a clear path as to how Petitioner might be able to obtain a position with the School Board with a criminal record referenced on his applications. Considering the views of both Principal Jones and Human Resources Director Robinson, together with their understandings of the meaning of the Eligibility Letter, it is found that it was a mistake not to consider Petitioner eligible for an interview or hire for the vacant positions for which he applied just because Petitioner’s applications revealed a criminal background. Further, while it is apparent that the School Board should address its application process to clarify a path to employment for those who may have criminal backgrounds, it is found that the fact that Petitioner was deemed ineligible for employment was not unlawful discrimination or retaliation as alleged in Petitioner’s Discrimination Complaint. Rather, the evidence fell short of demonstrating unlawful discrimination and, instead, revealed a mistake in the School Board’s application process. The chart below, provided in the School Board’s Proposed Recommended Order and supported by the evidence, lists the names, age, race, and gender of the teachers hired for the positions for which Petitioner applied: Final candidate Position Age Race Sex O’Hara Black Special Assignment 47 Black Male Stephanie Dauphin Social Studies 23 Black Female Devonte Knight Social Studies 27 Black Male Tomeka Lightfoot Graduation Coach 44 Black Female Albert Plewa Social Studies 29 White Male Dominga Robinson Social Studies 31 Black Female Erin Shields Social Studies 33 Black Female Laquadra Simmons Social Studies 38 Black Female Ciara Stephenson Social Studies 32 Black Female Petitioner acknowledged that Principal Jones hired males and females, black teachers and white teachers, and does not dispute the fact that the School Board has hired teachers over the age of 65 during the timeframe of his discrimination claims. Rather than providing evidence of discrimination, Petitioner admitted that he assumed discrimination anytime someone was hired for a position he had applied for that was of a different race, sex, or age from Petitioner. For instance, Petitioner claims that he was not hired because of his race, sex, and age, but acknowledged that for each position for which he was not hired, he simply alleges discrimination based on whatever protected characteristic(s) he did not share with the final candidate, i.e., he chose the one that applied. For example, if a black female was hired, Petitioner alleges he was not hired because of his sex. If a white male was hired, then Petitioner contends he was not hired because of his race. In sum, Petitioner failed to present sufficient evidence to show that the School Board treated similarly situated applicants or employees outside Petitioner’s protected class of race, sex, or age more favorably. Rather, the only evidence Petitioner presented to support the allegation that Principal Jones’s or the School Board’s hiring decisions were discriminatory was “the fact they never hired me.” Petitioner also claims that he was not hired out of retaliation for filing his First Case against the School Board over 12 years ago. Petitioner produced no evidence supporting this claim, and admitted that he had no evidence that Principal Jones even knew that he had filed the charge prior to her decision not to hire him. The School Board proffered two reasons that it did not hire Petitioner: (1) his application status in its database indicated that he was “ineligible” because of his criminal history, and (2) Principal Jones did not believe he could effectively manage a classroom full-time, as evidenced by his performance as a substitute. The first proffered reason–that Petitioner’s affirmative response to a question regarding his criminal history rendered him ineligible–was a mistake. While it was a mistake not to consider Petitioner for an interview or potential hire in disregard of his Eligibility Letter, that mistake does not show that the School Board discriminated against Petitioner as alleged, nor does it make that purported reason for not considering Petitioner’s application mere pretext. It was merely a mistake in the application process. Future use of that process after this case to exclude applicants with criminal backgrounds who have otherwise been cleared by the Department of Education may very well constitute pretext in view of the fact that the School Board should now be aware of the shortcomings of its process. Pretext, however, is not found in this case because the evidence does not suggest that Principal Jones or the School Board were aware that, under the circumstances, it was a mistake to exclude Petitioner’s applications. The second reason–that Petitioner was not considered or hired because of concerns regarding his ability to manage a classroom–is supported by the evidence. During the 2019-2020 school year, current Gadsden County Schools Superintendent Elijah Key served as a Vice Principal at Gadsden County High School. While there, Mr. Key observed a number of classroom management issues with Petitioner, including the fact that a large number of student disciplinary referrals were coming from Petitioner’s classroom and Petitioner was inconsistent with meting out discipline to students. The specific examples from Mr. Key’s testimony based on his observations provided credible evidence that Petitioner lacked control over his classroom. At the times they were made, Mr. Key reported his observations to Principal Jones, and suggested that they needed to find another substitute or hire a new teacher to take over Petitioner’s class because of the lack of classroom control. At the final hearing, Principal Jones testified that, even if Petitioner was not excluded from hire because of his criminal background, she probably would not have hired Petitioner based on her own observations and her administrator’s observations of Petitioner’s inability to manage his classroom. In the words of Principal Jones, “- - if you can’t manage the classroom, you can’t teach the students.” Petitioner failed to provide evidence refuting the testimony of Principal Jones's assessment that, even if Petitioner was eligible to obtain a teaching certificate, she probably would not have hired him because of his inability to manage a classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2021. William Breen Armistead, Esquire Coppins Monroe, P.A. 1319 Thomaswood Drive Tallahassee, Florida 32308 Ronald D. Jones 1821 McKelvy Street Quincy, Florida 32351 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Glover E. Jones, was licensed as a teacher in the State of Florida holding certificate number 556798, covering the area of mathematics, and was employed by the Madison County School Board as an adjunct instructor at Madison County High School, Madison, Florida. The uncontroverted facts in this case show that Pamela Ann Hale, the alleged recipient of the remarks in question here, was born on August 28, 1969. As of the date of the hearing, she was living with her mother in Live Oak, Florida, attending the 10th grade at Suwannee High School there. At the time of the alleged incident here, she was living with her father in Madison and attended Madison County High School. Her mother and father are divorced. While attending Madison County High School, Hale had the Respondent as her math teacher during the third period of the school day during the month of September 1984, at the beginning of the 1984-1985 school year. She did not have him for any other subjects nor did she know him prior to the beginning of the school year. This class was made up of students who required extra assistance and consisted of approximately 15 to 16 students in remedial math. On the day in question, Hale was selling candy during the class period to raise money for a school organization. She sold candy not only to her fellow students but also to the Respondent. At this point the stories told by Ms. Hale and by the Respondent begin to diverge. Ms. Hale contends that when she approached Jones on the date in question to buy candy he advised her to come back after class and she could sell him some. She contends, also, that she came back after the other students left even though she had another class (health) to attend, sat down at a student desk, and Respondent sat down facing her approximately three or four feet away. It is at this point that, she says, he asked her simple questions about herself and her family. When she answered, he then allegedly asked her if she had ever "fucked" a black man before. He allegedly told her she looked sexy that day. She says he asked her if she noticed that he "had a hard on" and touched himself in the genital area, asking her if she thought she could handle that. At no time, however, did Respondent ever touch the witness. She says he asked her if she had ever "fucked" anyone while someone else was in the room. She replied that she had not. He allegedly asked her if she had a boyfriend and when she said she did, he is alleged to have responded, "I'll bet you fuck him because he's not black." This conversation went on until about 10 or 15 minutes before the fourth period was over. As was stated previously, the witness had health the fourth period and cut the class because, as she tells it, Respondent asked her to stay. While she was in the room with Jones alone, a Mr. Alexander, also a math teacher, entered, along with two other students. While in the room, Alexander asked Respondent if the witness was having any trouble with her work to which Respondent replied that she was, but indicated he would take care of it. Alexander verifies this with the exception that according to his testimony, when he came into the room, Respondent was seated at his desk writing a note and Hale was standing in front of him. This is not a significant difference. After Alexander left, Respondent asked the witness several questions about her siblings including her sister who formerly went to Madison High, but who quit when she had difficulty with some black students the previous year. He asked her if she was going to go to the ball game the following Thursday and, when she replied that she was, she says he suggested that perhaps they could get together that night. Ms. Hale contends she was amazed that Respondent talked to her in this fashion but she also contends she did not leave because she was afraid of him, though he made no threats, either verbal or physical, toward her and made no effort to prevent her from leaving. She also made no comment to Alexander when he and the other students came into the room even though these suggestive statements had already been made. She finally terminated the conversation toward the end of the fourth period by stating she had to go to her next class. Before she left, she asked Respondent for a note, which he gave her and asked her not to repeat the conversation they had had. During fifth period, Hale had lunch scheduled and during lunch with Loretta Sealy, she related in general terms, to Sealy, what had happened. After lunch, she went to the remainder of her classes and went home but even that night, she failed to tell her father of the incident because she was afraid he might do something as a result of his hot temper. Sealy indicates that when she first saw Hale after the incident, when Hale came into the ladies' room, she appeared nervous, upset, and near tears. She said that Respondent had said things which upset her--in essence propositioning her. At first, Hale did not want to report the incident because she felt nobody would believe her. However, Sealy finally convinced her to do so and the two girls went to see the assistant principal, Ms. Miller, two days after the incident took place. Hale told Ms. Miller what had happened and signed the first of several written statements which was prepared for her signature by Miller based on the report given. Later on, she agreed to take a polygraph examination regarding her story. No evidence was presented as to whether the exam was given or not. Ms. Hale attended class with the Respondent during the several days between the time of the alleged incident and the report to Ms. Miller, but once the story came into the open, she was removed from his class. She talked with Miller rather than the principal because she had known Ms. Miller from her prior school. The fact that she did not talk with the principal had nothing to do with the fact that he is black. Respondent's version of the story differs from that of Hale in that he contends that at the end of the class period on the day in question, Hale asked him if she could stay after class. He contends that her remaining had nothing to do with buying candy because he bought candy from her when she came to class. He also claims that she did her homework during this fourth period when she and he were the only people in the room. While she was working, he was behind his desk and she was sitting at a student desk off to his left. Respondent contends that it was Hale who made the first non-business statement by asking him if she could go smoke. He told her that she could not since smoking was not allowed on campus. She responded that another teacher, Mr. Hendrix, had allowed her to smoke in the school building and then went on to indicate that she had "messed" with guys in their twenties when she was twelve. This statement, which came immediately after the comments about Mr. Hendrix and smoking, shocked him. The only reason he did not ask her to leave was because she appeared to have a problem and he thought he might be able to help her. During the course of the conversation she indicated that some blacks had attacked her sister the previous year on campus which had caused her sister to leave school and that, in general, all black students at Madison High were wild. Though Ms. Hale, in her testimony, indicated that when asked by Respondent if she had ever fucked a black man, she responded by asking him if he'd ever fucked a white woman, Respondent denies that Hale ever asked him this question nor did she mention drugs to him in any fashion. He denies making any of the comments attributed to him by Hale or any of the suggestive movements she claimed he made, though in the letter he submitted to the principal the morning after being confronted by the accusations against him, denials were not so strong or so widespread. In fact, in that written statement, he commented, "I'm not saying that the statement made is totally wrong, but there are two things that trouble me most about it." He then goes on to list these two troublesome areas as the statement makes it appear as though he is the culprit and that some things in it are either false or turned around. He then goes on to list the several things Hale is supposed to have said to him that were not included in her statement, such as her sexual activity and her obvious antipathy toward black men. When Hale finally went to see Miller, she appeared to be quite upset though she was not crying. She was somewhat reluctant to talk to Ms. Miller until finally Miller released Sealy to go back to class and after Sealy left, Hale told Miller her entire story. Once Hale had completed her version of the story, Miller asked her to wait and went to talk with the principal who returned to the office with her to talk with Hale. After discussing with the resource officer how to take a statement, Miller returned to the office and took a detailed statement from Hale a second time in the form suggested to her and had it signed by Hale and notarized. Later that morning, Ms. Miller, the principal, Mr. Yanessy, the resource officer, and Mr. Buchanan called Respondent into the principal's office and showed him a copy of Hale's signed statement. Respondent read it, handed it back, and said that the statement was not "exactly" true--that Hale had twisted a lot of things around. He contended that in reality it was Hale who asked a lot of the questions, not him, and that he would do anything to clear his name. Respondent contended he had no interest in either Hale or any other young girl. At this point the investigating group advised him that they would talk with him later and take a statement from him. About two hours later they did meet again and at this time, Respondent repeated his comments made earlier in the day to the extent that while a conversation took place, it did not happen as Hale said it did. At this point, though the school officials wanted to take Respondent's statement, Respondent did not want to speak on the record then. The following morning he gave the principal the letter which was referred to above. Based on an evaluation of the testimony of Ms. Hale, Ms. Sealy, the Respondent, and Ms. Miller, all of which bears on the credibility of the Respondent vis-a-vis his accuser, it becomes clear, and it is so found, that a conversation did take place in the classroom during the fourth period on September 10, 1984, between Respondent and Ms. Hale when the two of them were the only persons in the room. It most likely will never be determined exactly as to who said what to whom. There is no doubt, however, that the Respondent permitted a student who he knew had a class to attend, to remain in his classroom with him at the expense of her absence from that succeeding class. Though Respondent advised Mr. Alexander that he was helping Hale with her school work, there is no other evidence that he did so. Ms. Hale contends he did not and he admits he did not stating only that she did her homework while in the room with him. Whatever the conversation was, it is clear that it was sexually oriented and Respondent used extremely poor judgment in allowing the situation to develop as far as it did. The evidence establishes that Ms. Hale's background is not without cloud. At the age of sixteen she is admittedly sexually experienced and has experimented with various controlled substances such as marijuana and cocaine. Ms. Miller indicated that her academic background was marginal--that while she can do her work and can be an average student, she has, nonetheless, failed. The nature of her testimony on the stand was not so clear as to give a certain picture as to what happened. It is most likely that Ms. Hale herself does not recall the incident with certainty. What is clear is that aside from her discussion with Ms. Sealy over lunch, she failed to make any complaint to anyone with authority to do something about it until several days after the incident took place and then only upon the urging of her friend. In substance then, it is obvious that the truth no doubt lies somewhere between the two stories. When Respondent found out that Ms. Hale had no legitimate reason to be in his classroom, he allowed her to remain and engaged in a conversation with her that should not have taken place. While the exact words are in question, the subject matter is not. It was sexually oriented and the parties were a twenty-five-year-old male teacher and a fifteen- year-old female student. His judgment in allowing that to happen is abysmal and his professionalism in that instance was nonexistent especially in light of the fact that he was warned twice at the beginning of his employment with the school system by his principal, to be very careful of his conduct in dealing with female students. Mr. Ray, the principal, indicates that if the allegations against the Respondent are true, it would seriously reduce his effectiveness as a classroom teacher because of the need for a teacher to observe the strictest propriety in his relationships with students. Such conduct as alleged here would undoubtedly be harmful to the learning process and would create an embarrassment to the student. If the allegations are true he would not want Respondent back working for him. In his opinion, for a situation such as this, if established, there are no less drastic remedies than termination. He believes that there is no place in Madison County for a teacher guilty of these allegations and in addition to termination, revocation of the teaching certificate would be appropriate. On the other hand, if it were to be established that the allegation was not true, then Respondent's effectiveness would not be diminished and the credibility of the student would be damaged. However, in his experience it is very unusual for female students to make sexual advances toward teachers. While it could occur, in his opinion it is not likely and over the 19 years he has been in education, it has never happened to him. Mr. Buchanan, who has been in place as Superintendent of Schools in Madison County for over 8 years, is familiar with the allegations in this case and Respondent's denial. His analysis of the case resulted in his recommendation that the School Board suspend the Respondent from his teaching position and in addition, he reported Respondent to the Education Practices Commission. He took this step because he felt an obligation to report substandard conduct of an educator. Assuming that the allegations are true, in his view, the effectiveness of the Respondent is reduced because in a case like this the teacher loses credibility with his students. He feels that if true, Respondent's conduct would be harmful to the learning process and embarrassing to the student and would have an adverse impact on the relationship between the parents and the school system. Viewing the evidence in its totality and weighing the credibility of all witnesses, as alluded to before, it becomes clear that a one on one conversation took place between the Respondent and Ms. Hale. It is most likely that Respondent did not prompt the conversation and did not request that Ms. Hale remain after class. To the contrary, it would appear that she requested to remain after class. No doubt improper comments were made by both Ms. Hale and the Respondent and it makes no difference whether Ms. Hale or the Respondent initiated the colloquy. It is quite clear that subject matter improper for a conversation between a student and a teacher of opposite sexes, involving sexually suggestive comments took place and that both Respondent and Ms. Hale used language of this nature.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent held Florida Teaching Certificate No. 139016 covering the area of history and qualifying him to teach grades 7 through 12. From on or about January 27, 1988, until August 29, 1989 the Respondent was employed by the Board as a teacher at Sandalwood Junior/Senior High School, teaching 8th grade gifted students ranging in age from 13 to 14 years and 11th and 12th grade advanced placement history students ranging in age from 16 to 18 years. Respondent is presently employed by the Board, assigned to the Media Center in Jacksonville, Florida where he was assigned on August 29, 1989. Prior to his present employment with the Board, the Respondent had been employed by the Florida Community College of Jacksonville (FCCJ) for 21-1/2 years as a teacher/administrator. Before assuming his teaching duties at Sandalwood, Respondent had read the Code of Ethics of the Education Profession and understood and accepted the obligations and responsibilities placed on him by the code. On June 21, 1989, S.L.W. ran away from her home in North Carolina and while standing outside of a local fast food restaurant, a short distance from her home, an individual called Adrian Freeman offered her a ride. S.L.W. was not acquainted with Freeman before he offered her a ride. Freeman learned from S.L.W. that she had run away from home and offered to help her and not tell anyone. S.L.W. spent the night at Freeman's house and while there she became intoxicated and "passed out." While S.L.W. was passed out, Freeman sexually assaulted her. The next day, June 23, 1989, S.L.W. decided to leave Freeman's house and he drove her to the bus station. At first, S.L.W. was going to Myrtle Beach but because the bus for Jacksonville, Florida left earlier she decided to go to Jacksonville. Before S.L.W. left for Jacksonville, Freeman made arrangements with the Respondent for him to meet S.L.W. in Jacksonville and find her a place to stay. Upon arriving in Jacksonville, S.L.W. was met at the bus station by Respondent. The Respondent told S.L.W. that he was a high school teacher. S.L.W. told Respondent that she was in the tenth grade and a runaway. Respondent then told S.L.W. that she would be staying at the home of Lee Daniels. Respondent then bought S.L.W. some food. When S.L.W. finished eating he carried her to the home of Lee Daniels but they were told to come back later. Respondent and S.L.W. later returned to the home of Daniels around 10:00 a.m. Respondent showed S.L.W. to her room and told her to take a shower. After taking she shower she put on her clothes and got under the cover. At this point, Respondent returned to the room with an alcoholic beverage for S.L.W. Respondent then told S.L.W. to remove her clothes item by item and once she was undressed began to massage her body. Later Respondent attempted sexual intercourse with S.L.W. and, although Respondent did not have an ejaculation he did penetrate S.L.W.'s vagina with his penis. Respondent then left Daniels' home and was seen by S.L.W. on only two other occasions. There was no physical contact between them on these occasions. S.L.W. remained at Daniels' home for approximately three weeks. Eventually, S.L.W. was picked up by a State Trooper at a bar and through the Jacksonville Sheriff's Department was returned to her mother. S.L.W. identified Respondent for the sheriff's department as the person who sexually assaulted her by pointing him out in a high school year book. Based on this identification, Respondent was arrested and charged with lewd and lascivious assault upon a minor. Respondent's conduct involving S.L.W. was immoral, reflects on his character, not only as an individual but more specifically as a teacher, and is in violation of the Duval County Teacher's Tenure Act and the Code of Ethics of the teaching profession. Although the publicity of Respondent's involvement with S.L.W. created by several newspaper articles and television stories and by word of mouth of the students, teacher and parents of Sandalwood seriously impaired his effectiveness as a teacher at Sandalwood, there was insufficient evidence to show that Respondent's effectiveness as a teacher had been seriously impaired in the Duval County School System as a whole.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of having violated Section 4(a) of the Duval County Teacher Tenure Act and terminating his employment with the Board. DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6704 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of fact 1, 3, 2 and 4, respectively. 5-7. Rejected as not being material or relevant to this case or not being supported by any substantial competent evidence in the record. 8. Adopted in Finding of Fact 5. 9-10. Adopted in Finding of Fact 2. 12-55. Adopted generally in Findings of Fact 6 through 19, otherwise rejected as not being material or relevant, or being redundant or subordinate, or not supported by any substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in Finding of Facts 2 and 3. 3.-4. Adopted generally in Finding of Fact 17, otherwise rejected as not being material or relevant. Rejected as not being material or relevant. Covered in Preliminary Statement. 7.-10. Adopted generally in Findings of Fact 6-17, otherwise rejected as not being material or relevant, or redundant or subordinate, or not supported by any substantial competent evidence in the record. 11.-15. Adopted in Findings of Fact 19, otherwise rejected or not being material or relevant, or being redundant or subordinate, or not being supported by any substantial competent evidence in the record. 16. Rejected as not being supported by any substantial competent evidence in the record. See Findings of Fact 10 through 18. COPIES FURNISHED: Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207 Gail A. Stafford, Esquire 421 West Church Street, Suite 715 Jacksonville, Florida 32202 David A. Hertz, Esquire 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2017.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' factual stipulations, the following relevant facts are found. Miami-Dade Community College is a public educational institution operated by the District Board of Trustees. Its North Campus has an enrollment of approximately 14,000 students, and employs approximately 340 professional faculty and administrators and 300 clerical personnel. At all times relevant to this proceeding, Respondent Joseph T. King was employed on an annual contract basis as an instructor in the Division of Occupational Careers, Business Data Processing Department, at the North Campus. As pertinent here, his latest annual contract was for the period from August 1984 to August 2, 1985. That contract has not been renewed and did not create the expectancy of employment beyond August 2, 1985. As pertinent to this proceeding, the organizational administrative structure of the North Campus, in descending order, is as follows: the President of the College, the Campus Vice-President, the Dean of Academic Affairs, the Associate Deans of the various divisions, the department Chairpersons and instructors. The North Campus Vice-President is the chief administrative officer at that campus and is responsible for providing broad leadership and administrative direction for all of the campus programs and services. The Dean of Academic Affairs is the chief academic officer and is responsible for the faculty and for providing the planning, development, implementation, monitoring, and evaluation of the various instructional divisions. During the time periods relevant herein, Dr. Lukenbill was the Dean of Academic Affairs and Dr. Kelly was the North Campus Vice-President. Dr. Lukenbill had been employed at the college since 1972 and was appointed as the North Campus Dean of Academic Affairs on January 28, 1985. Dr. Kelly, having served in various levels of college administration for 23 years, was appointed as the North Campus Vice-President during the first week of February 1985. The Acting Associate Dean of the Division of Occupational Careers was Blanca Gonzalez. Within this Division is the Department of Business Data Processing, chaired by Lincoln Andrews. The Respondent King was an instructor in that Department. From January 30, 1985 through February 17, 1985, Respondent was unable to work due to medical reasons. On February 11, 1985, Respondent was advised by telegram from the Director of Personnel Services that he would be required to present a physician's statement to the Associate Dean of his Division substantiating that he is physically able to resume his duties. During the period between January 30, 1985 and February 17, 1985, Respondent did hand-deliver a letter from himself to the College President on January 30, had one dinner engagement, made two visits to a former faculty member's home and had one faculty member in his home. February 18 was a school holiday. At approximately 8:00 a.m. on February 19, 1985, Respondent returned to the North Campus and reported to Associate Dean Gonzalez' office for the purpose of providing documentation regarding his ability to return to work. With him was Harry Forster, a former faculty member who had been terminated and had been asked not to return to the campus. Respondent presented Ms. Gonzalez with certain documentation from his physician and requested her to sign a receipt for the documents. Ms. Gonzalez signed and returned the documents to the Respondent and the conversation between them concluded. At that point, Mr. Forster told Ms. Gonzalez that he wanted to speak with her about the Chairperson of the Business Data Processing Department. Ms. Gonzalez then telephoned Mr. Lukenbill, the Dean of Academic Affairs, and asked him to come to her office to join the meeting because she felt the Academic Dean should be a part of the discussion which Mr. Forster desired to initiate. Having been recently appointed as Academic Dean, and Respondent having been on sick leave since January 30, 1985, Dr. Lukenbill had not met Respondent prior to February 19, 1985. As he walked into Ms. Gonzalez' office, he introduced himself to the Respondent and shook his hand. A discussion thereafter ensued between Dr. Lukenbill, Mr. Forster and Ms. Gonzalez, with the Respondent taking no part in the discussion. The matters discussed by Mr. Forster related to his concerns or beliefs regarding certain activities and personnel at the College. They did not involve the Respondent, though both the Respondent and other administrators had previously heard the allegations made by Mr. Forster. At the conclusion of the discussion between Forster, Lukenbill and Gonzalez, Dr. Lukenbill turned to the Respondent and stated that he would like to have a few words with him and asked if he had a few moments. His purpose in initiating that discussion was a combination of courtesy, to establish a rapport with a faculty member he had just met, and to assure himself that Respondent was physically able to resume his duties as an instructor. It was not unusual for Dr. Lukenbill to speak directly with faculty members, in spite of the organizational it chain of administrative command. In response to Dr. Lukenbill's invitation to talk together, Respondent produced his attorney's business card and responded that he would not speak with Dr. Lukenbill. Respondent then left Ms. Gonzalez' office with Mr. Forster, and attended his scheduled classes. For some time prior to February 19, 1985, Respondent had been involved in a contract dispute with the College concerning his salary. His retained attorney had written a letter dated February 14, 1985, to President McCabe regarding this matter and had requested a response within five days. Respondent was of the impression that he should not speak to college administrators concerning his contract dispute or the Forster allegations in the absence of his attorney. When Dr. Lukenbill asked to speak with the Respondent on the morning of February 19, neither he nor the Respondent mentioned Respondent's salary or contract dispute with the College. Dr. Lukenbill had no knowledge of the February 14 letter from Respondent's attorney to President McCabe. While Respondent testified that he would have spoken to Dr. Lukenbill had Dr. Lukenbill advised him that he wished to discuss academic matters with him, the evidence is clear that Respondent did not express this to Dr. Lukenbill nor did he inform Dr. Lukenbill that he only did not feel at liberty to discuss his salary dispute or the Forster allegations in the absence of his attorney. Dr. Lukenbill did not intend to speak with Respondent concerning either Respondent's contract dispute with the College or the allegations made by Mr. Forster. He had previously heard those allegations and felt that they concerned matters unrelated to the Respondent. Dr. Lukenbill was concerned that Respondent's refusal to speak with him created a situation whereby he, as the Dean for Academic Affairs, could not fulfill his responsibilities of managing the assignment of faculty and the conduct of classes. For this reason, he contacted Vice- President Kelly after the February 19 incident and expressed his concern that Respondent's refusal to speak with him impaired his ability to carry out his responsibilities. Dr. Kelly was also concerned and puzzled about Respondent's refusal to talk with the Dean, and agreed that the situation needed to be immediately resolved. At approximately 11:00 a.m. on February 19, 1985, Dr. Lukenbill instructed Ms. Gonzalez to deliver a note to Respondent requesting him to come to Dr. Kelly's office to meet with Dr. Kelly and Dr. Lukenbill at 11:30 a.m. Ms. Gonzalez had a memorandum prepared and attempted to have it delivered to Respondent's lab. The evidence is conflicting as to the time of the attempted delivery and as to the Respondent's schedule of classes and/or labs on that particular day and time. Respondent did attend two of his classes on the morning of February 19. In any event, the memorandum of February 19 was not delivered to the Respondent. On the morning of February 20, 1985, Dr. Lukenbill again requested Ms. Gonzalez to prepare and deliver a note to Respondent requesting him to meet with Dr. Lukenbill and Dr. Kelly in Dr. Kelly's office at 12:15 p.m. Ms. Gonzalez prepared the memo and attached the similar memo of the previous day. Neither memo stated the reason or purpose of the scheduled meeting. The February 20 memo and attachment were delivered to the Respondent during his scheduled class, and Respondent appeared at Dr. Kelly's office at the scheduled time. Vice-President Kelly had never met Respondent prior to February 20, 1985. He was aware that there had been some problems with faculty members missing classes in the Respondent's Department and had heard the Respondent's name in this regard. His concern, however, on February 20 was to attempt to understand and remedy the Respondent's refusal to speak with his Academic Dean on February 19. Dr. Kelly had no knowledge of Respondent's contract dispute with the College and perceived no connection between Mr. Forster's allegations and the Respondent. Respondent appeared at the February 20 meeting with Dr. Kelly and Dr. Lukenbill and the three individuals sat at a small conference table. Respondent immediately placed a tape recorder on the table and asked if there were any objections to the meeting being taped. Drs. Kelly and Lukenbill both indicated they had no objection. Respondent turned on the tape recorder, taped some background information and then indicated to the others that they could proceed with the discussion. It is undisputed that the discussion began with Dr. Kelly stating that they wished to speak with the Respondent about what occurred on the previous day. What Dr. Kelly was referring to, and what Dr. Lukenbill understood to be the purpose of the meeting, was the Respondent's refusal to speak with his Academic Dean on February 19. In response to Dr.,Kelly's opening statement, Respondent threw his attorney's business card on the conference table and refused to speak to the Vice-President or the Academic Dean. Dr. Kelly explained to the Respondent that he considered Respondent's behavior, both then and on the previous day, to be inappropriate, intolerable and a very serious matter. He informed the Respondent that if he were not going to speak with Dr. Kelly or Dr. Lukenbill, there would be no way Respondent could remain on campus and that he would recommend his suspension to the College President. Respondent inquired as to whether Dr. Kelly was ordering him to leave the campus; Dr. Kelly responded that he was requesting him to leave the campus and Respondent then left Dr. Kelly's office. Respondent offers the explanation that, since the notice of the February 20 meeting did not set forth the subject matter or reason for the meeting, he had no way of knowing what Dr. Kelly meant by stating that he wished to discuss what occurred on February 19. This explanation is not credible and does not justify his conduct of refusing to speak to his college administrators. First, even if Respondent had been instructed by his attorney not to discuss his contract dispute in her absence, there is a conflict in the evidence as to whether Respondent's contract or salary dispute was ever mentioned during the February 20 meeting. Dr. Kelly was not even aware of such a dispute. While Respondent testified that he himself inquired as to whether the meeting had anything to do with his contract, he further testified that Dr. Kelly responded that he did not want to talk about a contract dispute but instead wanted to talk about what happened with Dr. Lukenbill the previous morning. Thus, even accepting the Respondent's versions of the February 20 meeting, it is clear that Respondent understood, at some point in time, that the intended purpose of the meeting was to discuss Respondent's refusal to speak with Dr. Lukenbill. Respondent never offered any explanation to Dr. Kelly or Dr. Lukenbill as to why he would not speak to them. It is clear that the meeting started and ended with the key administrators of the North Campus expressing their desire to have Respondent explain to them and change his position concerning his unprofessional behavior on that day and the previous day. Respondent's own fears or concerns regarding either his contract dispute or the Forster allegations do not excuse his willful and continued failure to communicate with the top two administrators responsible for his employer's functions and operations. By telegram dated February 20, 1985, Dr. McCabe, Petitioner's President, advised Respondent that he was suspended without pay pending Dr. McCabe's recommendation for dismissal to the District Board of Trustees. By letter dated March 1, 1985, Dr. McCabe advised Respondent that he would recommend Respondent's termination at the March 26, 1985, District Board meeting based upon the charge of gross insubordination. At that meeting, the District Board suspended Respondent without pay pending the termination proceedings. The Petition and Notice for Dismissal was served on April 2, 1985, and Respondent requested a formal hearing.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Respondent Joseph T. King be dismissed from employment retroactively to the date of his suspension for gross insubordination. Respectfully submitted and entered this 20th day of December, 1985. DIANE D. TREMOR 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 20th day of December, 1985. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent have been approved and/or incorporated in this Recommended Order, except as noted below: Petitioner: 7 and 8. Rejected as to date of February 19, 1985, due to evidence to the contrary. 32. Partially rejected, no competent, substantial evidence regarding Respondent's schedule between 11:00 and 11:30 a.m. 51. Rejected, irrelevant and immaterial. Respondent: P. 3, last full sentence Rejected, not a factual finding. in last paragraph. Last paragraph beginning Rejected, not a factual finding on P. 3. And irrelevant and immaterial. COPIES FURNISHED: Donald M. Middlebrooks, Esquire and Nancy E. Swerdlow, Esquire Steel, Hector and Davis 4000 Southeast Financial Center Miami, Florida 33131-2398 Neil Flaxman, Esquire Flaxman and Flaxman, P.A. 2600 Douglas Road, Suite 311 Coral Gables, Florida 33134 Dr. Robert H. McCabe, President District Board of Trustees Miami-Dade Community College 11011 Southwest 104th Street Miami, Florida 33176
