The Issue The issue for disposition is whether Ms. Baker knowingly and intentionally provided false and misleading information to her supervisors relating to her physical ability to return to work, and whether she thereby committed the violations of Chapter 231, F.S. and Rule 6B-1.006, F.A.C., alleged in the Administrative Complaint.
Findings Of Fact The following stipulated material facts are adopted from the parties' prehearing statement filed on March 18, 1988: The Respondent, Janie Baker, was employed as a continuing contract teacher with the Orange County School Board. The Respondent was first employed as a teacher by the Orange County School Board in August, 1965. The Respondent was suspended from her employment as a teacher on continuing contract with the Orange County school in November, 1984, and subsequently dismissed. Respondent was employed at the Gateway School at the time of her suspension Gateway is a school designed and utilized specifically to meet the educational needs of emotionally and socially handicapped (EH), specific learning disability (SLD) and severely emotionally disabled (SED) students. Its students range from four years of age through the sixth grade. EH students are educated at Gateway because they are unable to successfully attend class in regular schools with non- handicapped students. EH students have social and behavioral problems and occasionally may strike one another or their teachers. EH students are more prone to "act out" their emotions physically than normal children. The Respondent taught a class of approximately 10 emotionally handicapped students during the school year 1984-1985. During the school year 1983-84, the Respondent instructed specific learning disability children. On September 22, 1983, while employed at Gateway, the Respondent injured her back while catching a falling television set. Due to this injury, Respondent was on workmen's compensation leave from November 15, 1983 through the end of the 1983-84 school year. Dr. Munson, the Respondent's doctor, stated in a letter of August 21, 1984 that Respondent could return to school during the 1984-85 school year, but advised school officials of the need for Respondent to have a limited amount of physical activity in her work. Dr. Munson noted in his records that Respondent complained of her inability to return to work with mentally handicapped students because of the physical efforts involved. On August 24, 1984, during the pre- planning period for the 1984-85 school year, Dr. Louise Wicks, principal of Gateway School, and Velma Venrick, Senior Administrator for Employee Relations, met with the Respondent for the purpose of reviewing her physical condition and accommodations that the school would make to reduce the likelihood of Respondent suffering re-injury. Subsequent to the pre-planning meeting, Dr. Wicks drafted a memo on August 27, 1984 setting forth certain procedures and limitations to be utilized by Respondent while teaching her class. The limitations included Respondent not moving furniture or heavy classroom equipment, not handling students who were out of control and not doing excess lifting of heavy items. The Respondent was promised a full-time aide and instructed to arrange with the office for assistance in the event the aide was unavailable. When the 1984-85 school year commenced, a permanent substitute teacher was assigned to Respondent's classroom for the entire day until the permanent teacher assistant was hired and placed in the classroom. On October 3, 1984, Respondent sustained an injury in the classroom when pushed by a student. The Respondent's teaching aide was working at the blackboard with his back to the students at the time of the incident. He turned around and saw Respondent lying on the floor with the student on top of her, hitting her in the stomach and all over her body. The teaching assistant immediately went over and pulled the student away from Respondent. The fire department was called and Respondent was taken to the hospital for treatment. The hospital examined Ms. Baker and told her to go back to her orthopedic doctor. She returned to Dr. Munson's office and was examined by him. She complained of soreness but the x-rays taken at Winter Park Memorial Hospital revealed no fractures or dislocations. Dr. Munson felt there was a contusion and that Ms. Baker should not return to work. He suggested rest, with ice and massage and told her to return to him as needed. She was given a note that said she "... may return to work if she feels like it." (Petitioner's Exhibit #8). Ms. Baker did not return to work until November 2, 1984. Between October 3, 1988, and that date, she visited Dr. Munson's office several times. On October 19, 1988, Dr. Munson felt that she could return to work and communicated that fact to Ms. Baker. Dr. Munson saw no orthopedic contraindications to her returning to work in the light duty fashion that was described to him by the School Board. He had been assured in letters from the School Board that she would not be exposed to physical activity. Dr. Munson was aware of a continuing conflict between Ms. Baker and her employers even before the October 3rd classroom incident. Throughout his treatment of Ms. Baker, she complained of what she felt was a threat from violent students in the classroom and she expressed fear of reinjury. On the other hand, the letters and conversations with School Board staff reassured him that she had help and was restricted from lifting or rigorous activity. On Saturday, October 20, 1984, Ms. Baker received a letter from Dr. James Scaggs, Superintendent for Administrative Services and Employee Relations, acknowledging that she had not returned to work and requiring her to immediately obtain a statement from Dr. Munson indicating a specific date on which she could return to work, or stating that she was disabled and unable to return. On Monday, October 22, 1984, Ms. Baker visited Dr. Munson's office to get the work statement. Again, Dr. Munson informed her that she could return to work under the conditions described by the School Board. At that point Dr. Munson felt there was a conflict between the demands of her job, as Ms. Baker described them, and how the School Board personnel presented them. He felt that he needed to take a position as an orthopedist and that position was that she could return to work. Ms. Baker left Dr. Munson's office on October 22nd still upset because she thought she was exposed to injury. Dr. Munson dictated his opinion in an office note dated October 22nd. He discussed the opinion with Dr. Scaggs and sent him a copy of the note the following day. On October 23, 1984, Dr. Wicks, Gateway School Principal, called Ms. Baker and told her to come to work or bring a doctor's statement. Dr. Wicks also informed Ms. Baker that her leave of absence had not yet been approved. Ms. Baker responded that she was still ill and would bring Dr. Munson's statement. Ms. Baker then returned to Dr. Munson's office. Because she did not have an appointment and he was busy with patients, she was not able to get a note. After her unsuccessful attempt to see Dr. Munson and persuade him to change his opinion, Ms. Baker took the prior October 3rd note to the Gateway School office on October 23rd. This was the same note that said she could return to work if she felt like it. As she was leaving the office Dr. Wicks saw her and asked when she would be coming back. She replied that she did not have the slightest idea, that people were telling her doctor she could work and she would need to get that straightened out. By this time, Ms. Baker obviously knew the October 3rd note no longer reflected Dr. Munson's opinion. She made no effort to conceal the date on the note and was aware that Dr. Munson a had been speaking and corresponding with School Board officials. Her retort to Dr. Wicks reflected that awareness. Her admittedly deliberate action in leaving the outdated note was a provocative and confrontational expression of her disagreement with her employers; it was not an attempt to conceal the truth. In a telephone conversation with Dr. Scaggs on November 1st Ms. Baker readily admitted knowing that the note did not reflect Dr. Munson's current opinion, but she explained that she left the note because she disagreed that she could return to work. However sincere her belief, however correct her insistence that her duties were not the "light duties" described to Dr. Munson, Ms. Baker's lack of professionalism and disingenuousness is inexcusable. Her conduct seriously reduced her effectiveness as an employee of the School Board. Mrs. Baker returned to work as directed by Dr. Scaggs, on November 2, 1984. On November 5, 1984 she was suspended from her position and was later charged with several violations, based in part on the School Board's assertion that she intentionally and deliberately submitted false information on her physical ability to return to work. After a Section 120.57(1) F.S. hearing, Hearing Officer W. Matthew Stevenson found that Ms. Baker intentionally submitted a misleading medical document to Dr. Wicks and concluded that this constituted failure to exercise appropriate professional judgement and integrity and a failure to maintain honesty in professional dealings. He recommended continued suspension until commencement of the 1987-88 school year. The School Board in its Final Order filed on June 26, 1986, adopted most of the recommended findings and conclusions, but increased the penalty to termination. Ms. Baker currently holds State of Florida Teacher's Certificate #169492, covering the areas of elementary education, mental retardation, emotionally disturbed, specific learning disability, administrative supervision and junior college. She has taught in the State of Florida continually since 1965, except for brief leaves of absence to further her own education. She has been reprimanded in writing by her principal, Louise Wicks, three times for inappropriate and unprofessional behavior, on February 8, 1983, September 17, 1983, and October 15, 1984. Dr. Scaggs and Dr. Wicks were aware of a conflict between Ms. Baker and her principal. Prior to working together at Gateway School the two women had been sorority sisters and friends. Their families visited socially. At some point, the relationship deteriorated. Dr. Wicks attributes this to her appointment to an administrative position that Ms. Baker wanted. Despite the conflict, there is insufficient evidence to establish that Ms. Baker's discipline was motivated by Dr. Wick's desire to remove her from Gateway.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Janie E. Baker, Respondent, be found guilty of violations described in Sections 231.28(1)(f) and (h), F.S. and not guilty of violations described in Section 231.28(1)(c), F.S. and Rule 6B-1.006(5)(a), F.A.C., and that her teaching certificate be suspended for one year. DONE and RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida. MARY CLARK 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 7th day of June, 1988.
The Issue The issue in this case is whether the Department of Professional Regulation (Department) should grant the application of the Petitioner, Carolyn Raney McCarthy, n/k/a Carolyn Raney Stoia, for licensure as a clinical social worker by examination.
Findings Of Fact On or about October 31, 1989, the Petitioner applied to the Respondent, the Department of Professional Regulation, for licensure as a clinical social worker under the provisions of Chapter 88-392, Laws of Florida (1988), which allows a person to apply to the Department, instead of the Board of Clinical Social Work, for a determination whether the person met the requirements for licensure under Chapter 490, Florida Statutes (1985), that were in effect before Chapter 491, Florida Statutes, went into effect on October 1, 1987. The parties agree that the Petitioner meets all the requirements for licensure by examination except that the Department disagrees with the Petitioner's allegation that she has two years of experience as a provider of behavioral therapy "under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" The Department concedes only that the Petitioner has had seven and a half months of experience as a provider of behavioral therapy under the supervision of Anne Kremer, who "meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" In addition to her experience under the supervision of Anne Kremer, the Petitioner has had at least 16 and 1/2 months of experience as a provider of behavioral therapy at Tri-County Addictions Rehabilitation Services, Inc., in Winter Haven, Florida, under the supervision of J. William Herchig. Herchig received a Master of Social Work degree from the Florida State University in June, 1979, with a major emphasis in administration. Herchig's graduate field work during the last two quarters of his degree program was at the Lakeland Outpatient Clinic of Tri-County Alcoholism Rehabilition Services, Inc., (later to become Tri-County Addictions Rehabitation Services, Inc.), where he was hired as Clinic Director in approximately August, 1978. As clinic director, approximately half of Herchig's time was spent in the direct service of patient or client health care and about half was spent on supervisory and administrative duties. Herchig was not supervised by anyone as to his provision of direct client services. But, during his first 16 weeks on the job, Herchig was supervised by Patricia Furnival, his counterpart, as Clinic Director, at the Avon Park Outpatient Clinic of Tri-County. Furnival instructed him in supervision techniques, program management, organization pattern, and the like, in the way of on-the-job training for the job of clinic director. As a result of the nature of his job opportunity as Clinic Director of the Lakeland Outpatient Clinic, Herchig declared the major emphasis of his degree program to be in the area of administration, and he participated in the degree program's seminar on administration in conjunction with his graduate field work. Herchig's vague testimony about the course work taken by him and his fellow participants in the masters degree program did not prove that all participants took identical course work (not including the field work, with accompanying seminar.) Herchig's masters degree did not have a major emphasis or specialty in direct patient or client health care services. The Petitioner also did not prove that Patricia Furnival was "someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985)]," at the time she supervised Herchig's graduate field work. The Petitioner proved that both Herchig and Furnival have certificates from the Academy of Certified Social Workers (ACSW), but it was not proven that ACSW certification necessarily signifies that the certificate holder has two years of "experience as a provider of behavioral therapy . . . under the supervision of someone who meets the education and experience requirements for licensure as a clinical social worker under [Chapter 490, Florida Statutes (1985).]" ACSW certification requires two years of full-time, paid, supervised, post-master's or post-doctoral experience in social work practice, but "practice" is defined by the requirements to include "supervision, planning, administration, consultation, research, and teaching," and documentation of clinical supervised experience is not required for ACSW certification. For this reason, the Department and the Board of Clinical Social Work properly have not accepted, and do not accept, ACSW certification as conclusive proof of eligibility for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work enter a final order denying the Petitioner's application for licensure by examination. RECOMMENDED this 26th day of October, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990.
The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this matter, Respondent Robert S. Colen was a licensed mental health counselor, holding Florida license MH 0001546. The Respondent’s business address is 800 Belcher Road, North, Suite 1, Clearwater, Florida 34625. The Respondent was trained in a form of mental health counseling identified as “Gestalt” or “humanistic” therapy. Such therapy includes physical, non-sexual, touching, such as hugs. There is no credible evidence that therapeutic touching within a counseling relationship is inappropriate. A number of the Respondent’s clients testified that he almost always hugged them at the end of the counseling session. The only witness who testified that the Respondent did not hug was a male patient who indicated that he was not inclined to permit the Respondent to hug him. Other than the three patients identified herein, none of the witnesses regarded the hugging as sexual, and none seemed at all offended by the physical contact. Patient M. C. Patient M. C. was referred to the Respondent by Dr. Michael Gemino, the patient’s psychiatrist. At the time of the referral, M. C. was diagnosed with bipolar disorder, alcohol abuse, and passive aggressive disorder. She was referred to the Respondent for counseling related to alcohol addiction and co-dependency issues. During the course of therapy, the Respondent began to hug M. C. as he did many of his other patients. At some point during the therapy, a discussion of different types of “love” occurred. Based on that discussion, M. C. apparently became convinced that the Respondent was in love with her and she with him. At some point during the counseling, the Respondent and M. C. began to experience some type of emotional involvement which exceeded the typical counselor-client situation. There were extended periods when the Respondent held M. C. in his arms as she recounted painful experiences she had suffered. M. C. asserts that the Respondent told her that he loved her and that beginning in February 1994, she engaged in sexual activity with the Respondent. She asserts that the two would lie on pillows on the floor of his office, that the Respondent would touch her unclothed genital area with his hands and mouth, and that she would perform fellatio on the Respondent. In about July 1994, M. C. reported the alleged sexual activity to Dr. Gemino, who referred her to Kerry Kushmick, an unlicensed individual apparently working with Dr. Gemino. Mr. Kushmick met with the Respondent and M. C. to discuss the matter. Although M. C. repeated her allegations, the Respondent denied any sexual contact, but acknowledged that the two were in a "psychological cocoon,” that he was "in over his head," that he should have terminated therapy earlier, and that there were some “boundary” issues which needed resolution. The evidence fails to establish that the Respondent engaged in sexual activity with M. C. The recollection of M. C. as to times and circumstances under which the sexual activity occurred lacks credibility. The Respondent’s office was located immediately adjacent to a public waiting area which served a number of professional offices. The receptionist’s desk in the waiting area was located next to the Respondent’s office. The walls in the office suite were poorly insulated and sound traveled from the offices into the waiting area; however the receptionist testified that she heard nothing indicating any sexual activity ever took place in the Respondent’s office. She also testified that the door to the Respondent’s office closed improperly and would not lock. The evidence establishes that the Respondent did not maintain an appropriate therapeutic relationship with M. C. The Respondent did not recognize that transference and counter- transference were occurring, and did not timely seek assistance to resolve the situation. The Respondent's failure to recognize the developing situation with M. C. was detrimental to her mental condition and constitutes a failure to meet minimum standards of performance as his professional activity. At some point after M. C. spoke to Dr. Gemino, he provided to her the names of other patients whom he had referred to the Respondent for counseling. M. C. met separately with J. M. and R. P. They discussed the interactions with the Respondent. The former patients continued to maintain contact for a period of time after the initial meeting. At the hearing, J. M. and R. P. expressed concern regarding the emotional condition of M. C. Patient J. M. In about October 1993, J. M. was referred to the Respondent by Dr. Gemino, the patient’s psychiatrist. At the time of the referral, J. M. was diagnosed with bipolar disorder. She was referred to the Respondent for marital therapy, after having been involved in sexual relations outside her marriage. J. M. attended initial counseling session with her husband. She attended subsequent sessions without her husband. She also participated in group therapy at the Respondent’s office. J. M. dressed in a “seductive” manner for counseling sessions, frequently wearing very short shorts. At one time, after a group therapy session, the Respondent received a complaint from another patient regarding J. M.’s attire during counseling, stating that she was sitting on a pillow on the floor, was not wearing underwear, and was exposing herself. J. M. testified that she did not wear underwear during the group therapy and further acknowledged that she was not wearing underwear at the time of her testimony. J. M. asserts that during the initial counseling session, while her husband was out of the room, the Respondent told her she was attractive. J. M. asserts that during subsequent session, which she attended alone, the Respondent would lie on the pillows with her, touch her, tell her she was beautiful and call her his “soul mate.” She asserts that the Respondent was always touching her and kissing her. The evidence fails to support the assertions J. M. asserts that the Respondent purchased gifts for her. The Respondent acknowledged that he may have purchased some type of tape for her, but there were not multiple gifts. J. M. asserts that he did not charge for all sessions. The Respondent acknowledged that he did not charge for all her sessions and said that is frequently the case when a patient is undergoing financial difficulty. J. M. testified that the Respondent told her she should take a test for the AIDS virus. She believed that the Respondent made the suggestion for the purpose of determining her health status prior to engaging in sexual relations with her. The Respondent testified that he made the suggestion based on her sexual activity outside her marriage and the fact that she was referred to him for marital counseling. Despite having been interviewed by an investigator for the Department, J. M. testified for the first time at the hearing that the Respondent told her he was going to “lick her pussy like you’ve never had it before.” There is no credible evidence that the Respondent made the statement. J. M. terminated her therapy with the Respondent because he indicated she needed to pay him some of the money she owed from the counseling. The evidence fails to establish that the Respondent acted inappropriately in his interaction with J. M. Patient R. P. The Respondent provided therapeutic counseling to R. P. from January to March of 1988. At the time of the 1988 counseling, R. P. was being treated for an inability to accept affection. From August to October 1991, the Respondent engaged in a second round of therapy with R. P. She was depressed, lacked a social support system, and was dependent on prescription pain medication. She was also involved in a difficult relationship with her mother. There were only four sessions during the 1991 round of therapy. During the second round of therapy, the Respondent encouraged her to bring her mother to counseling (her mother declined.) The Respondent hugged and touched R. P during the sessions, told her she was special and a valuable person. R. P. had expressed concern about being able to be physically affectionate with a man. Part of the Respondent’s plan of therapy was physically hugging or holding R. P. in a manner intended to permit her to become comfortable with such attention in a non-threatening environment. Some of the hugs lasted for up to 15 minutes. Depending on the mental status of the patient, a 15 minute hug, while unusual, is not necessarily inappropriate. R. P. asserts that the Respondent told her she was his “soul mate” and discussed sexual relations with her. She asserts that he told her he had feelings about her which he had not experienced with other patients. The evidence fails to support the assertion. After R. P. stopped attending the sessions, she received two letters from the Respondent, the second of which made her feel “threatened.” He also called R. P. several times. R. P. believed he was trying to make her feel guilty. The Respondent asserts that he was concerned about her discontinuation of therapy and the fact that she owed him money. The evidence fails to establish that the Respondent acted inappropriately in his interaction with R. P.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a Final Order imposing a fine of $1,000 on, and issuing a public reprimand to, Robert S. Colen. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998. COPIES FURNISHED: William C. Childers, Esquire Thomas Wright, Esquire Anne Cox, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32317-4229 Louis Kwall, Esquire Kwall & Showers, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Lucy C. Gee, Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of race and by retaliating against her, in violation of the Florida Civil Rights Act of 1992, as amended, Sections 760.10 et seq., Florida Statutes (2006).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Outreach Center is an organization serving the homeless in Broward County, Florida. It is associated with the Miami Rescue Mission and operates two centers in Broward County, one in Pompano Beach, Florida, and one in Hollywood, Florida. It provides shelter, emergency services, and comprehensive services to its clients, and receives its funding from private donations, in-kind gifts, contracts with governmental entities, and partnerships with local communities. At the times pertinent to this proceeding, the staff of Outreach Center's Hollywood center was multi-ethnic; approximately 50 percent of its employees were African-American, including two supervisors, and the rest of the staff consisted of Hispanics, whites and persons of other ethnic origins. At the times material to this proceeding, Ronald Brummitt was the Executive Director of the Miami Rescue Mission/Broward Outreach Center; Scott Hall was the Director of the Hollywood center of the Outreach Center and reported to Mr. Brummitt; and Martha Ayerdis was the Director of Human Relations for the Outreach Center. Mr. Brummitt and Mr. Hall are both white men. Ms. Chester, who is an African-American woman, began working for the Outreach Center in early 2005 as a case manager in its Pompano Beach center. During part of the time she worked in the Pompano Beach center, Mr. Hall was the social services supervisor and supervised Ms. Chester. Mr. Hall and Ms. Chester had a very good working relationship when they worked together in Pompano Beach. Later in 2005, Ms. Chester transferred to the Hollywood, Florida, center of the Outreach Center. Prior to her transfer, Mr. Hall became the Director of the Outreach Center's Hollywood center. Francesca Fraser, an African-American woman whom Ms. Chester had known when they both worked as case managers in the Pompano Beach center, was the social services supervisor at the Hollywood center when Ms. Chester began working there. Ms. Fraser began working with the Outreach Center in Pompano Beach in 2004; she was offered the social services supervisor position in Hollywood about a year and a half later. As the social services supervisor, Ms. Fraser supervised Ms. Chester. Mr. Hall and Ms. Fraser both thought very highly of Ms. Chester, and they recommended to Mr. Brummitt that Ms. Chester be promoted to lead case manager. Mr. Brummitt, who, as the Executive Director of the Outreach Center, had the power to hire, fire, and promote employees, approved Ms. Chester's promotion. The social services supervisor was a key person at the Outreach Center because, in addition to managing the case managers, the social services supervisor was responsible for ensuring that the required data were input into the Outreach Center's client-tracking database system and for extracting this data and preparing the monthly reports that were sent to the Miami Rescue Mission, the Outreach Center's parent organization. The data in the monthly reports were relied on to prepare the quarterly reports and the annual reports. During the times pertinent to these proceedings, Mr. Hall prepared the quarterly and annual reports, which were provided to Broward County as a condition of the Outreach Center's receiving funding from the county. Ms. Fraser liked her work at the Hollywood center of the Outreach Center. She felt, however, that her interaction with management, specifically, with Mr. Hall, was stressful and uncomfortable and became increasingly so. For Mr. Hall's part, he felt that, any time he questioned Ms. Fraser or tried to instruct her, she became defensive and gave him the impression that she felt insulted. Mr. Hall considered Ms. Fraser a very capable person, but their working relationship began to deteriorate because of the lack of communication between them. After a time, Ms. Fraser decided that she had no alternative but to resign her position with the Outreach Center. She was experiencing a great deal of stress as a result of her dissatisfaction with her working relationship with Mr. Hall, and she became ill. Ms. Fraser missed a great deal of work because of her illness, and, during Ms. Fraser's absences, Ms. Chester stepped in and helped Mr. Hall complete Ms. Fraser's work. Ms. Chester was a tremendous help to Mr. Hall during this time. After Ms. Fraser resigned, Ms. Chester acted as the de facto social services supervisor, and Mr. Hall worked with Ms. Chester on the client-tracking database and worked with her to complete the monthly report due June 30, 2006. Ms. Chester was promoted to social services supervisor at the Hollywood center effective July 1, 2006. Mr. Hall assumed that, when Ms. Chester was promoted to lead case manager, Ms. Fraser taught her how to use the client-tracking database system and how to supervise the case managers and had requested her assistance in the preparation of reports. He, therefore, did not provide Ms. Chester with any formal training with regard to the duties of the social services supervisor. He was, however, available to answer questions and work with her whenever she needed assistance, and he met with her regularly regarding various matters. Ms. Fraser left behind a great deal of unfinished work when she resigned, and Ms. Chester had a lot to do to get the work current. At the same time that she was trying to learn the job of social services supervisor, Ms. Chester was also handling the cases that she had when she was the lead case manager, and she had also advised Mr. Hall of her intention to take college courses to further her education. Mr. Hall was concerned that Ms. Chester was overwhelmed, and he urged her to transfer her case files to one of the case managers and to concentrate on her administrative and supervisory responsibilities. In Ms. Chester's opinion, the case managers under her supervision had heavy caseloads, and Ms. Chester continued to work with clients. When Ms. Chester was promoted to social services supervisor on July 1, 2006, Barbara Law was an intake case manager and was under the supervision of Ms. Chester. Ms. Law was promoted to resident services supervisor in August 2006. Ms. Chester believed that Ms. Law was given preferential treatment by Mr. Hall. For example, Ms. Law brought her daughter into the office on occasion, when she had an emergency; on one occasion, the lead family case manager, who was under Ms. Chester's supervision, had to tell Ms. Law's daughter not to run around the building with the children of clients. Ms. Chester believed that Mr. Hall was showing favoritism to Ms. Law by permitting her to bring her child to the office, but this was not a privilege extended only to Ms. Law. Other employees were routinely allowed to bring their children to the office. Ms. Chester felt that Ms. Law's family concerns were accommodated by Mr. Hall by allowing Ms. Law to bring her daughter to the office during work hours, but that Mr. Hall did not accommodate her family concerns. Ms. Chester referred to an incident that occurred during the first week of December 2006. Ms. Chester telephoned Mr. Hall on Monday, December 3, 2006, to advise him that she had a family medical emergency and would not be at work that day. Ms. Chester told Mr. Hall that she would not take leave because she intended to make up the time by working on the following Saturday. Mr. Hall told Ms. Chester that this was fine. On Saturday, Mr. Hall received a call from one of the case managers asking for help with an emergency. Mr. Hall told the case manager to report the problem to Ms. Chester, but he was told that Ms. Chester was not at the Outreach Center. Mr. Hall telephoned Ms. Chester on Sunday to ask if she reported to work on Saturday, and she confirmed that she had not but gave no explanation. When she submitted her timesheet for the week, she reported that she had worked a 40- hour week. Mr. Hall wrote this incident up in a Disciplinary Action Report dated December 14, 2006, which was later amended on December 21, 2006. On another occasion, when Mr. Hall was out of the office on vacation, Ms. Law told the case managers, including those who were supervised by Ms. Chester, to report any problems to Ms. Law in Mr. Hall's absence. Because of this instruction, case managers who were under Ms. Chester's supervision reported to Ms. Law rather than to Ms. Chester. In the opinion of one case manager, Ms. Law did well while she was in charge. In addition to Ms. Chester's specific concerns related to Ms. Law, related above, Ms. Chester had ongoing concerns related to Ms. Law job performance. Before Ms. Law was promoted to residential services supervisor, Ms. Chester was her supervisor. Ms. Chester complained to Mr. Hall about what she perceived as Ms. Law's insubordination, but, in her opinion, Mr. Hall did not take her concerns seriously. Ms. Chester also felt that Ms. Law was given preferential treatment because Ms. Law received Mr. Hall's approval to place two families in one accommodation, while she was criticized by Mr. Hall for placing two families together. As a general rule, placing two families in the same accommodations was a serious breach of the Outreach Center's rules. Mr. Hall approved Ms. Law's placing a new mother and her infant in accommodations with a family that the new mother had grown close to, so the family could help the new mother with her infant. In an e-mail sent from Mr. Hall to Ms. Chester on August 30, 2006, Mr. Hall asked Ms. Chester to meet with him to discuss complaints he had received from clients that there were substantial delays in meeting their case managers. Mr. Hall considered this a very serious matter that was causing discontent among the Outreach Center's clients, and he approached Ms. Chester about the problem because she was the social services supervisor. In an undated response to Mr. Hall's e-mail, Ms. Chester stated that she was getting complaints that Ms. Law was not meeting the needs of her clients, apparently because Ms. Law had been involved in training other employees. She expressed confidence that, once Ms. Law resumed her regular case management duties, the situation would be resolved, but she alluded to divisions among the Outreach Center's staff. Ms. Chester was very concerned that Ms. Law was not serving her clients appropriately, and Ms. Chester felt obligated to work with Ms. Law's clients. Ms. Chester was, therefore, trying to manage a caseload at the same time she had administrative and supervisory responsibilities. This caused a great deal of stress for Ms. Chester, and she was seen crying in the office on several occasions by one of the case managers she supervised. On or about September 25, 2008, Mr. Hall, Ms. Chester, and Ms. Law met to discuss the problems that had been identified by Mr. Hall in the August 30, 2006, e-mail. The immediate problem between Ms. Chester and Ms. Law was resolved, and Ms. Law left the meeting. Mr. Hall asked Ms. Chester to remain behind because he wanted to discuss a complaint that he had received about her using profanity in the workplace. One of Ms. Chester's case managers went to another supervisor and complained because the case manager did not want to get in trouble. The supervisor reported the complaint to Mr. Hall. When Mr. Hall told Ms. Chester about the complaint, Ms. Chester denied using profanity. Mr. Hall assured her that this was not a disciplinary matter and that, if she did not use profanity, he should forget about the complaint. Ms. Chester insisted on an investigation and on confronting the person who had lodged the complaint. Eventually, the supervisor who had received the complaint in confidence and reported it to Mr. Hall, a woman named Lolita Suarez, came forward, and Ms. Suarez and Ms. Chester discussed the matter and came to a resolution. On September 26, 2006, however, the day after the meeting, Ms. Chester wrote an e-mail to Mr. Brummitt in which she stated that she considered the complaint a personal attack, made without justification, because she "had concerns with a certain employee," apparently referring to Ms. Law. Ms. Chester described the complaint as "'tit for tat'" behavior, and she described the work environment as one that interfered with her ability to carry out her responsibilities. Ms. Chester further stated that Mr. Hall refused to divulge the name of the person complaining about her use of profanity, and she requested Mr. Brummitt's intervention to "provide clarity with this situation."2 Ms. Chester sent a copy of the e-mail to Mr. Brummitt to Mr. Hall. In an e-mail dated October 16, 2006, Mr. Hall wrote to Ms. Chester that he had just discovered the e-mail to Mr. Brummitt. Mr. Hall stated that the e-mail to Mr. Brummitt was inappropriate because it broke the "chain of command" set out in Section 2.1 of the Employee Handbook and that, if Ms. Chester wanted a meeting with Mr. Brummitt, she was to request it through him, Mr. Hall. Mr. Hall emphasized that Ms. Chester had not been disciplined as a result of the complaint, nor had there been any other consequences. Mr. Hall further stated that Ms. Chester's circumvention of the chain of command created a problem for Ms. Chester and Mr. Hall and that it would be necessary for them to meet to resolve the matter and, possibly, to include Mr. Brummitt. Ms. Chester wanted to meet with Mr. Brummitt to discuss the manner in which Mr. Hall talked to and related to employees. She also wanted to speak with Mr. Brummitt because she had brought problems and issues to Mr. Hall's attention, but, in her opinion, Mr. Hall refused to address the problems or deal with them because, Ms. Chester surmised, he was uncomfortable with the matters she brought to his attention. Ms. Chester wanted Mr. Brummitt to intervene and resolve the growing tension between her and Mr. Hall. Ms. Chester made several requests to meet with Mr. Brummitt on her own. Although Mr. Brummitt did not respond directly to Ms. Chester's requests for a meeting, he talked with her at one point and told her to follow the procedures in the employees manual and go through the system if she had any complaints or concerns. According to the Employee's Manual, an employee was to go first to his or her immediate supervisor to resolve a problem; if the employee was not satisfied with the response of his or her immediate supervisor, the employee was to go to the Human Relations Director, Ms. Ayerdis, and she would discuss the problem and request a meeting with the Executive Director, Mr. Brummitt, if appropriate. By October 2006, Mr. Hall had observed a number of problems with the case management and the team supervised by Ms. Chester. He was also receiving verbal complaints about Ms. Chester from other supervisors. He became concerned and asked Ms. Chester to meet with him to discuss a number of issues. Among other things, Mr. Hall intended to ask Ms. Chester to transfer any cases she was managing at the time and spend her time doing the administrative duties required of the social services supervisor. He believed that Ms. Chester was overwhelmed and experiencing a lot of stress on the job, and he wanted to make it easier for her to perform her managerial and administrative responsibilities. Mr. Hall and Ms. Chester met on or about October 15, 2006. Mr. Hall felt that Ms. Chester had become increasingly defensive whenever he brought any issues to her attention, and, at the October 15, 2006, meeting she become noticeably upset and then somewhat belligerent. As the meeting progressed, Ms. Chester become increasingly belligerent, and Mr. Hall became angry and told Ms. Chester to leave his office. Mr. Hall did not give Ms. Chester any indication that her employment was terminated and took no action to terminate her. Nonetheless, when Mr. Hall told Ms. Chester to leave his office, she left the Outreach Center's office and filed an unemployment compensation claim effective October 15, 2006. Ms. Chester did not report for work on October 16, 2006, but she subsequently continued working, and Mr. Hall was not aware that she had filed an unemployment compensation claim until Ms. Ayerdis told him that she had received notice that the claim had been filed. The claim was denied on November 6, 2006, on the grounds that Ms. Chester was fully employed and not eligible for unemployment benefits. After Ms. Chester's promotion on July 1, 2006, Mr. Hall continued to prepare the quarterly reports, and he trained her to prepare these reports. Ms. Chester's only responsibility with regard to the quarterly reports was to ensure that the required data from client files and the persons- served worksheet was entered into the client-tracking database system so that Mr. Hall could pull this information to include in the quarterly reports. Ms. Chester submitted the July 2006, August 2006, and September 2006 monthly reports on time. Mr. Hall wrote e-mails complimenting her and thanking her for getting the September 2006 in early. Mr. Hall did not check the data and documentation backing-up the July and August reports, but, when he began to prepare the quarterly report that was due on October 15, 2006, he noticed that the data in the client- tracking database system did not match the information Ms. Chester had included in the monthly reports. The monthly report was basically spreadsheet containing the accumulated data that had been entered into the client-tracking database system throughout the month, and the information in the database should have been reflected in each monthly report. The missing data related to intakes, discharges, and referrals to transitional housing, and the discrepancies between the data in the database and the data included in the monthly reports prepared by Ms. Chester were significant. It was very important that the reports submitted to Broward County were accurate because the Outreach Center's funding was dependent on the information included in the reports. Mr. Hall sent Ms. Chester several e-mails on October 16 and 18, 2006, advising Ms. Chester of the missing data and asking that she provide the backup documentation for her monthly reports and account for the discrepancies. Mr. Hall suspected that Ms. Chester was pulling the data for the monthly reports from the client files themselves and that she was not inputting the data into the client-tracking database system. All of the information included in the monthly reports had to go into the database so that reports could be generated from the database, and Ms. Chester had been trained by Mr. Hall on inputting the data into the database. Ms. Chester never responded to the e-mails Mr. Hall sent on October 16 and 18, 2006, and she did not provide him with the backup documentation that he had requested. Ms. Chester's 90-day review of her performance was due on or about October 1, 2006. Because of what he perceived as problems with Ms. Chester's job performance, especially after the September 25, 2006, meeting when he brought up the complaint about her use of profanity, Mr. Hall decided to delay the review for 30 days to allow Ms. Chester additional time to improve her performance. Mr. Hall completed the review, and it was not favorable to Ms. Chester. Mr. Hall rated Ms. Chester below average in a number of categories, including quality of work, quantity of work, dependability, and customer contact. He rated Ms. Chester both below average and average on cooperation, noting that this had improved slightly. Mr. Hall rated Ms. Chester above average in attitude and average in ability to learn new duties. In the narrative portion of the review, Mr. Hall noted Ms. Chester's strengths as building strong and trusting relationships with the case managers she supervises, strong communication skills, and genuine compassion toward the homeless and dedication to helping them. Mr. Hall also observed that Ms. Chester was well-like by some of her coworkers and fellow supervisors. Mr. Hall made the following assessments of the weak points in Ms. Chester's job performance: In the areas of performance and follow-through, Mr. Hall stated that Ms. Chester had difficulties getting along with supervisors of other departments; was "visibly and emotionally very defensive" when concerns were brought to her attention and when she was given constructive criticism and correction of her performance; did not follow through with instructions or respond to e-mails; failed to respond to e-mails sent in October 2006 asking about missing data; failed to provide requested back-up documentation for data included in her monthly reports; despite having been reminded several times, failed to devise a work schedule for case managers so that all shifts during the week were covered; and failed to conduct regular crisis assessment team meetings. In the area of program outcomes, Mr. Hall stated that the data missing from the client-tracking database caused the Outreach Center to fall short of the outcomes required by its contract with the county; that the quarterly satisfaction survey of the Outreach Center's clients reflected the lowest percentage of satisfaction with case management services since the Outreach Center had been open; that, when Ms. Chester was told of the low survey results and asked how it could be improved, she stated that nothing could be done that had not been done already; and that Ms. Chester did not work out solutions for transfer of clients in emergency shelter to transitional shelter or independent living arrangements but offered extension of time to the clients, which had a negative effect on the outcomes required by the county. In the area of interviews, Mr. Hall stated that Ms. Chester was not able to build a solid and professional staff of case managers because she was unable to assess the strengths and weaknesses of persons interviewing for jobs. In Mr. Hall's view, Ms. Chester made decisions based on her emotions rather than on the candidate's qualifications and experience. In the area of decision-making and judgment calls, Mr. Hall stated that some of Ms. Chester's decisions put the Outreach Center and its clients at risk. He specifically noted that Ms. Chester had agreed to allow a single woman client to take another family's children to a medical appointment; had placed two families in one family unit; and had placed a single father with two sons, 16 and 13 years of age, in the women and children's center. Mr. Hall stated that Ms. Chester went outside the chain of command by sending an e-mail to Mr. Brummitt without Mr. Hall's approval and without notifying him, as required by the employee handbook; that she enabled poor performance by the case managers under her supervision; and that her excessive absences had placed the Outreach Center and the case management team in a difficult position. Finally, Mr. Hall stated that he had attempted to help Ms. Chester improve her job performance by meeting with her weekly and sometimes daily to provide instruction on the particulars of her job. He stated, however, that communication between him and Ms. Chester had broken down "on her end" shortly after the meeting in which he had spoken with her about the complaint that she had used profanity in the workplace.3 Mr. Hall arranged to meet with Ms. Chester on November 3, 2006, to discuss the 90-day review. Prior to the meeting, Mr. Hall gave Ms. Chester the review and told her to read it over. He knew she would have problems with the review because of the negative assessment of her performance, and he anticipated that their meeting would be lengthy because there were a great many concerns to discuss. In addition to discussing Ms. Chester's weaknesses, Mr. Hall also expected to discuss the adjustments that could be made to improve her performance and help her move into her administrative role. Ms. Chester did not show up for the meeting with Mr. Hall. Instead, she refused to discuss the review with Mr. Hall and requested a meeting with Mr. Brummitt. The meeting was scheduled for November 7, 2006. In spite of the negative 90-day review he had given Ms. Chester, Mr. Hall considered her an excellent candidate for a supervisor's position even though they no longer had the close working relationship they once shared. Mr. Hall was concerned, however, about Ms. Chester's ability to transition from being a case manager to being a supervisor because she seemed unable to supervise the members of the case management team. In addition, from Mr. Hall's perspective, Ms. Chester was communicating with him less and less frequently, and he found that she was becoming more and more resistant to instruction. Mr. Hall did not doubt Ms. Chester's ability to do the job of social services supervisor, but he took into consideration the fact that Ms. Chester was handling a client caseload and taking classes to further her education at the same time that she was learning to be a social services supervisor. Mr. Hall believed that Ms. Chester was overwhelmed in the position of social services supervisor, and she appeared to be stressed all of the time. Mr. Hall became convinced that Ms. Chester needed to work closely with a supervisor before she could successfully function as a supervisor, and he intended to remove her from the supervisory position for her own benefit and phase her back into that position. Prior to the November 7, 2006, meeting, Mr. Brummitt, Mr. Hall, and Ms. Ayerdis discussed the situation with Ms. Chester. After receiving input from Mr. Hall, Mr. Brummitt concluded that Ms. Chester was a valuable employee that he wanted to retain, and he decided to offer Ms. Chester the choice of remaining in the social services supervisor position or of returning to her former position as lead case manager, but at the same salary she was receiving as social services supervisor. At the meeting held on November 7, 2006, which was attended by Mr. Brummitt, Mr. Hall, and Ms. Ayerdis, Mr. Brummitt made his offer to Ms. Chester. Ms. Chester became upset because she considered the offer to return to her former position of lead case manager to be a demotion and to be disrespectful to her. Ms. Chester also took the offer to return to her former position at the same salary to be an indication that she was being underpaid as a supervisor. Ms. Chester attributed the poor 90-day performance review to retaliation by Mr. Hall for her e-mail and request to meet with Mr. Brummitt in September 2006. In Ms. Chester's view, her performance had been satisfactory and any problems she had were the result of lack of support from Mr. Hall and lack of training. Ms. Chester believed that black supervisors were not given the same level of support, training, and assistance that was given to white supervisors. Ms. Chester rejected Mr. Brummitt's offer to return to her former position as lead case manager, and she chose to remain in the position of social services supervisor and gave Mr. Brummitt and Mr. Hall assurances that she could do the job. Mr. Brummitt warned Ms. Chester that the offer to return to her former position was a one-time offer and that her performance as social services supervisor must improve or she would be terminated from her employment with the Outreach Center. Ms. Chester indicated that she understood. Communication between Mr. Hall and Ms. Chester improved for a few weeks after the November 7, 2006, meeting, but Ms. Chester's job performance did not improve, in Mr. Hall's estimation: Ms. Chester failed to register the case managers under her supervision for a scheduled training session. She nonetheless took them to the training location, where they were turned away and had to return to the Outreach Center. When Ms. Chester turned over her client case files after the November 7, 2006, meeting, Mr. Hall found that there was a great deal of information missing from the files, especially care plans for the clients, which Mr. Hall considered an extremely serious offense that impacted the Outreach Center's ability to serve its clients. On November 14, 2006, Mr. Hall asked Ms. Chester to attend a mandatory meeting regarding referrals to a Broward County agency that assisted the chronically homeless to obtain permanent housing. This was a very important meeting, but Ms. Chester forgot about the meeting and did not attend, with the result that the Outreach Center did not have a representative at the meeting. On November 24, 2006, Mr. Hall wrote an e-mail to Ms. Chester discussing the failure of one of the case managers under her supervision to write case notes and place them in clients' files. This case manager had not prepared any case notes for approximately a year, and Mr. Hall considered this a very serious offense that jeopardized the Outreach Center's county funding. Mr. Hall told Ms. Chester to write a Disciplinary Action Report on this case manager, but she resisted doing so. On December 7, 2006, Mr. Hall wrote an e- mail to Ms. Chester directing her to prepare the report, and she did so on December 8. 2006. She noted, however, that Mr. Hall had not allowed her to write a Disciplinary Action Report on Ms. Law. Ms. Chester was absent on Monday, December 3, 2006, because of a family emergency. As noted above, she advised Mr. Hall that she would work the following Saturday, but she did not do so. At a Crisis Assessment Team meeting led by Ms. Chester on or about December 6, 2006, Roberta Geist, the Outreach Center's lead therapist/counselor, was discussing the repeated failure of the case management team, which was multi-ethnic, to follow procedures with regard to clients who had relapsed. Ms. Geist was frustrated at the lack of compliance with procedures and, intending to address the entire case management team, she referred to "you people." Paulette Williams Shepherd, a case manager who had been hired by Ms. Chester in mid- November 2006, took offense, construing the comment as referring to the African-Americans who were attending the meeting, and she immediately left the meeting. Persons who attended the meeting reported to Mr. Hall that Ms. Chester became irate and also left the meeting, although she returned a few minutes later, acting as though nothing had happened. Ms. Chester contacted the Human Relations Department about the incident, and she also told Mr. Hall that she intended to file a formal complaint against Ms. Geist with her supervisor. In a Disciplinary Action Report dated December 14, 2006, Mr. Hall charged Ms. Chester with violations related to attendance, carelessness, and work quality. In the body of the report, he discussed three specific offenses: Ms. Chester's failure to include the proper documentation in the case files she had handled prior to November 7, 2006; her failure to attend the November 27, 2006, meeting; and her failure to report for work on Saturday, December 8, 2006, as promised, and to complete documentation for staff files for an audit conducted Monday, December 10, 2006.4 Mr. Hall wrote the Disciplinary Action Report in lieu of writing a review of Ms. Chester's performance subsequent to the her 90-day performance review, and he recommended that Ms. Chester be demoted to case manager effective December 18, 2006, or that she be terminated if she rejected the demotion. A meeting was arranged for December 18, 2006, with Mr. Hall, Ms. Ayerdis, and Ms. Chester. Mr. Hall anticipated that they would discuss the contents of the Disciplinary Action Report, including performance issues; Ms. Chester's falsification of her timesheet for the week of December 2, 2006; and Ms. Geist's remark at the December 6, 2006, Crisis Assessment Team meeting, as well as Ms. Chester's response to the remark. The meeting lasted less than five minutes, however. Mr. Hall began the meeting by asking Ms. Chester about the December 2, 2006, timesheet; Ms. Chester immediately accused Mr. Hall of being a racist and demanded an investigation into his discriminatory conduct towards her. Ms. Ayerdis agreed that she would conduct an investigation into Ms. Chester's allegation of discrimination against Mr. Hall. She told Ms. Chester to take a leave of absence with pay during the investigation. Ms. Ayerdis then closed the meeting. Ms. Ayerdis scheduled a meeting with Ms. Chester on December 21, 2006. She had completed the investigation into Ms. Chester's allegation of racism and found no evidence that Mr. Hall had discriminated against Ms. Chester on the basis of her race. A revised Disciplinary Action Report was prepared and dated December 21, 2006, in which Mr. Hall recommended that Ms. Chester's employment be terminated effective December 21, 2006. Mr. Hall based his recommendation that Ms. Chester be terminated on her failure to perform up to expectations and her failure to correct the performance deficiencies identified in the 90-day performance review. Mr. Brummitt, who had the ultimate authority to terminate employees at the Outreach Center, and Ms. Ayerdis concurred with Mr. Hall's recommendation, and, at the December 21, 2006, meeting, Ms. Ayerdis advised Ms. Chester that the investigation of Ms. Chester's discrimination claims against Mr. Hall turned up no evidence to support her allegation that he was a racist. Finally, Ms. Ayerdis notified Ms. Chester that her employment with the Outreach Center was terminated, effective immediately. Mr. Brummitt was aware that Ms. Chester and Ms. Ayerdis were meeting on December 21, 2006, and that Ms. Ayerdis would advise Ms. Chester of her termination at the meeting. It was close to Christmas, when the Outreach Center's employees received their bonuses, and Mr. Brummitt was concerned about Ms. Chester's not receiving her bonus. Mr. Brummitt decided that it was not fair to deny Ms. Chester the bonus, and he telephoned Ms. Ayerdis several times during her meeting with Ms. Chester to tell Ms. Ayerdis that Ms. Chester would receive the bonus and to confirm the amount of the bonus. Summary of factual findings The evidence presented by Ms. Chester is not sufficient to establish that she was the subject of unlawful discrimination or that she was terminated in retaliation for protected conduct. It is uncontroverted that Ms. Chester is a member of a protected class of persons, but she did not present sufficient persuasive evidence to establish that any similarly- situated employee of the Outreach Center was treated more favorably in any respect than Ms. Chester was treated. Ms. Chester failed to produce any evidence establishing that Ms. Law received more training or support from Mr. Hall than he provided Ms. Chester, nor does the evidence establish that Mr. Hall failed to discipline Ms. Law for the same or similar conduct for which Ms. Chester was disciplined. Rather, the evidence affirmatively establishes that Ms. Chester was terminated because of her unsatisfactory performance of the responsibilities of a social services supervisor. Ms. Chester likewise failed to present sufficient evidence to establish that she was discriminated against in the form of a hostile work environment. Although she alleged that she was subjected to constant harassment because of her race, that she was intimidated by the work environment at the Outreach Center, and that she was ridiculed for problems that she did not create, Ms. Chester failed to present any persuasive evidence to support these allegations. In addition, Ms. Chester did not present sufficient persuasive evidence to establish that she was terminated in retaliation for engaging in protected conduct. Ms. Chester did not present any evidence that she filed a discrimination complaint on account of Ms. Geist's reference to "you people," either with the Human Relations Department or with Ms. Geist's supervisor. Furthermore, the evidence affirmatively establishes that Mr. Brummitt warned Ms. Chester on November 7, 2006, when she refused to accept his offer to return to her position as lead case management, that she would be terminated if her job performance did not improve, and the proximity in time of her discrimination complaint against Mr. Hall and her termination is not sufficient to establish that her termination was in retaliation for the complaint. Ms. Chester likewise failed to present any evidence beyond her conclusory statements to support her allegations that her difficulties with Mr. Hall arose as a result of her attempts to meet with Mr. Brummitt and that she was ultimately terminated in retaliation for telling the truth about what she considered bad working conditions and "things that were not right."5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Peggy Chester against the Broward Outreach Center/Miami Rescue Mission be dismissed. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009.
The Issue Did Respondent, Hodges University (Hodges), commit an unlawful employment practice against Petitioner, Connie Leonessa, on account of her religion, as defined and prohibited by section 760.10(5), Florida Statutes (2018)?1
Findings Of Fact Parties Hodges is a university located in Ft. Myers, Florida. It offers a master's degree in counseling through the Clinical Mental Health Counseling (CMHC) program housed within Hodges' Nichols School of Professional Studies. Ms. Leonessa was a student in Hodges' CMHC master's program. Ms. Leonessa is an experienced registered nurse who has primarily served pediatric patients over the years. She also volunteered regularly to work with children in inner cities of the Northeast. Those experiences, her compassion for children, and her personal trauma of molestation drove Ms. Leonessa to want to serve children better. In her words, "and I just felt that God wanted me to go back to school to get a master's so I can help these victims." Ms. Leonessa was enrolled in Hodges from 2015 until the fall of 2018. Her goal was to prepare herself to provide counseling services to child victims of trauma. There is no persuasive, competent evidence proving that providing counseling services to child victims of trauma is a profession, occupation, or trade that requires a master's degree in counseling. In fact, paid positions in the counseling field are available without a master's degree. A master's degree, followed by two years of full-time, post- graduation, paid supervised work experience is required to obtain a mental health counselor license. So is passage of the NCMHCE Exam administered by the National Board for Certified Counselors. The persuasive, competent evidence of record does not prove that Ms. Leonessa intended to take the post-graduation steps required to obtain a mental health counselor license or to seek a mental health counselor license. Hodges' Master's Program Earning a master's degree in social work from Hodges requires successful completion of academic coursework, a 200-hour practicum, and three 267-hour internships. The providers of the practicum and internships are not part of or controlled by Hodges. The student is responsible for identifying and making arrangements with the practicum and internship providers. Hodges assists when it can. Hodges' program, like counseling itself, requires students to develop awareness of their preferences, prejudices, ethics, and philosophies and separate them from the support and guidance provided clients. Upon entering the program, students agree to abide by the requirements of a Clinical Mental Health Counseling Professional Attitude and Behavior Agreement (Agreement). Ms. Leonessa signed the agreement on September 2, 2015. The Agreement states the student's obligation to align her "personal ethics with the professional ethics as defined by the American Counseling Association (ACA) 2014 Code of Ethics [Code].” The Code was attached to the Agreement. The Agreement emphasizes the priority of avoiding harm to clients or future clients and taking care to not impose the counselor's personal beliefs, values, and behaviors on clients. The Agreement recognizes the ethical dilemmas the profession presents and articulates a student's obligation to consult others about the dilemmas and develop "an ever increasing ability to apply a professional ethic to difficult situations involving ethical dilemmas and associated law … ." As part of the Agreement, Ms. Leonessa agreed to have "an open and willing attitude toward feedback and suggestions given by faculty, peers and site supervisors to help the student reduce the possibility of harm." This tenet supports the value of requiring a counselor to put "a high priority on avoiding harm to clients or future clients." The Agreement obliges the student to understand and abide by the Code. The CMHC Student Handbook (Handbook) contains and emphasizes requirements similar to the Agreement's requirements. It encourages students to pursue personal therapy and growth, for their intrinsic benefits and to provide insight into what clients experience. The Handbook emphasizes that counselors are held to higher ethical standards and higher levels of personal growth and mental health than the average person. It states that evaluation of a student's progress in those areas is part of judging a student's suitability for the counseling profession. Hodges' program includes regular evaluation of a student's progress in "interpersonal interactions with students, faculty, site supervisors, and others involved with his/her academic progress." The program requires progress in those areas and provides for a Student Development Plan for remediation if the student does not improve his or her interpersonal interactions and skills. The Handbook directs students to review the Code. The Handbook requires students to work professionally and respectfully with fellow students, faculty, site supervisors, and site employees. The Handbook also requires students to accept others without rejection based upon, among other things, age, culture, gender identity, sexual orientation, religion, or marital status. A student commits to be "respectful of differing opinions and professional practice … ." A student also commits to work "to continually improve her/his professional relationship skills and clarify professional boundaries." The Handbook, signed by Ms. Leonessa, concludes with this affirmation: I understand that the Hodges University Clinical Mental Health Counseling Program requires students to perform adequately in areas of academic assessment that include the ability to form and continue positive relationships with others; the ability to acquire and correctly use counseling knowledge and skills, and the ability to successfully complete all practicums and internships in the judgment of the faculty and site supervisors. These expectations are in addition to the didactic coursework expectations and assessment procedures. I understand that I will be expected to continually improve my ability to demonstrate counseling competencies as I progress in the program. I further understand that the American Counseling Association 2014 Code of Ethics forms the basis of professional standards to which I must adhere. In sum, the nature of the counseling field that Ms. Leonessa sought to enter and the program at Hodges required students to develop an open and tolerant and patient way of communicating with people with whom they may disagree, even disagree vehemently. Conflict in Hodges' Academic Program Ms. Leonessa performed well in her academic work. But her interactions with three fellow students and a professor were marked with conflicts. She attributed the conflict to discrimination against her on account of her religion. The evidence does not support the attribution. Ms. Leonessa's sensitivity to the age differential between herself and other students and her aggressive personality caused conflict with fellow students. Ms. Leonessa acknowledged her aggressiveness, saying, "You know, I know I have a tone and I've been honest about that. I have a tone." (Tr. V. I, p. 206). Ms. Leonessa also had a pattern of attributing any disagreement or conflict to opposition to her Christian beliefs. Dr. Thomas Hoffman taught many of Ms. Leonessa's classes. Like Ms. Leonessa, Dr. Hoffman is a Christian. In email communications each referred to scripture. For instance, Dr. Hoffman, in counseling Ms. Leonessa about alleviating her repeated personal conflicts, advised her to be "wise as a serpent, but gentle as a dove." Ms. Leonessa, in defense of her combative approach said, "Jesus Christ spoke truth and was hated for it." Neither Dr. Hoffman nor any other Hodges representative ever prohibited Ms. Leonessa from referring to her Christian beliefs in communications with them. In addition, Dr. Hoffman never asked Ms. Leonessa not to share her religious views, such as her anti-abortion beliefs, in class. As the years passed, Ms. Leonessa's communications to Dr. Hoffman grew increasingly querulous and combative. Her tone was frustrated and loud. She challenged Dr. Hoffman's competence, honesty, and integrity in a disrespectful manner. Ms. Leonessa clashed, in class and outside class, with three fellow students. She felt the students did not treat her with the respect that was her due because of her age. Ms. Leonessa had a dispute with one student about abortion. She had conflicts with another about the use of the "F" word in class. Ms. Leonessa had a conflict with a third student who said that Ms. Leonessa was trying to impose her values in class. During these conflicts, Ms. Leonessa raised her voice and spoke hostilely. Sometimes she pointed her finger. In an encounter outside of the school, one of the students told Ms. Leonessa that Ms. Leonessa's beliefs were "f…ed up" and that Ms. Leonessa should attend a Christian school. Once Ms. Leonessa jerked on another student's purse strap to make a point. Those three students did not have conflicts with other students or faculty. Also, as will be addressed below, Ms. Leonessa had significant problems in her internships, problems the other students did not have. The three students were not similarly situated to Ms. Leonessa. Due to these conflicts and ways of interacting with Dr. Hoffman, Hodges faculty met with Ms. Leonessa in February 2016 in an informal coaching session. The purpose was to address Ms. Leonessa's inability to control her emotions and express herself in an appropriate manner. These are all issues whose importance to counseling the Agreement, the Handbook, and the Code all emphasize. Ms. Leonessa's religious beliefs were not the reason for convening the coaching session or the communications during it. The faculty also conducted informal coaching sessions with the other three students. Despite the coaching sessions, Ms. Leonessa's conflicts with the students and Dr. Hoffman continued. Hodges' Handbook provides for establishing a formal Student Development Plan (SDP) to assist students who are not performing in a manner that is consistent with the Code. An SDP's purpose is to formalize concerns not resolved by the informal coaching and provide a plan for addressing them. It is a remedial measure. Hodges established SDPs infrequently. Since 2011 it has implemented seven. The faculty created an SDP for Ms. Leonessa and placed her on it in October 2016. Ms. Leonessa's religious beliefs played no part in the decision to create the plan or setting the plan's requirements. The behaviors which the SDP addressed included the changes in Ms. Leonessa's tone and raised volume when she disagreed with others, her practice of interrupting others with whom she disagreed, and her belaboring of class topics well after the instructor was trying to move the class to a resolution and on to the next subject. The plan provided supports and measurable goals for Ms. Leonessa. They were: (1) pairing her with a third-year student as a mentor, (2) completing a case study assignment, (3) completing role-playing exercises, and (4) documenting her changes of tone and volume in class. Ms. Leonessa disagreed with the SDP but agreed to follow it and signed it some two months after the faculty presented it to her. The role-playing exercises assigned to Ms. Leonessa involved same-sex attraction and abortion. The faculty selected these two topics because they recur frequently in counseling. Ms. Leonessa's religious beliefs were not the reason for selecting the topics. Ms. Leonessa successfully completed the SDP. The three students with whom Ms. Leonessa clashed were not placed on SDPs. Their issues did not match Ms. Leonessa's in frequency or intensity. Practicum Ms. Leonessa sought to establish a practicum placement at Cape Christian, also known as Samaritan Health and Wellness Center (Cape Christian). There was some uncertainty whether the supervision available at Cape Christian met Hodges' requirements. Ms. Leonessa's contact at Cape Christian, Ms. Trout, was not satisfactorily responsive to Ms. Leonessa's efforts to sort the issue out. This resulted in combative telephone calls and emails from Ms. Leonessa to Ms. Trout. An excerpt from one email illustrates Ms. Leonessa's pattern of hostility and injection of religion into disputes. In a December 5, 2016, email to Ms. Trout from Ms. Leonessa describing her displeasure with the responsiveness of Cape Christian and a conversation with one of Ms. Trout's co-workers, Ms. Leonessa wrote: You stated I chewed her out but you were not on the phone. I did not disparage her character in any way, I said as believers we are to keep our word and that now I would have to find another place at the last minute. That is all I said. The Bible says be angry and sin not. According to what I have heard, you do not believe people should be angry and I would bet there are times in your life when you have had an unprofessional tone. Also I have had to wait weeks before hearing back from you, it amazed me how quickly you called about this situation-seconds! Ms. Trout replied: If you were my student and you'd have behaved in the manner as this [sic], you would be put in a professional development status, complete with remediation, to determine your appropriateness to move forward in the field of counseling. The fact that you sent this email in its current form further highlights the display of lack of professionalism and emotional maturity now exhibited in two separate phone calls as well. I would encourage that you seek some assistance in processing your emotions, and the manner in which you communicate those. I wish you the best. Ms. Leonessa replied to Ms. Trout, "Please do not contact me further." Ms. Trout forwarded the email exchange to Sue Hook and Dr. Mary Nuosce of Hodges. Dr. Nuosce answered, "Amy, I apologize for her total lack of professionalism. We are working on this. Thank you for your patience." This incident triggered an update to the SDP. The update was because of Ms. Leonessa's conduct and unrelated to her religious beliefs. Ultimately, Ms. Leonessa obtained and successfully completed a practicum with FRS/Omega Center. Tina Friedman was her supervisor. Ms. Friedman twice noted in the July 7, 2017, evaluation form that Ms. Leonessa required ongoing attention in the area of values management. The values criterion relates to many of the requirements and principles of the Agreement, the Code, and the Handbook. The evaluation form describes it thus: "Value Management: How did the student cope with values? Were attempts made to impose the student's values during the interview?" Ms. Friedman's Session Evaluation Form noted, "Connie does repeatedly offer her own values during client/student interaction." Ms. Friedman wrote a note to Ms. Leonessa on the form stating that Ms. Leonessa's development was at an expected level save for in values management. The note went on to specify: "Please work more diligently in this area as that may [prove] to be a problem in the future." The August 17, 2017, final evaluation emphasized the problem stating, HER BURNING DESIRE TO INITIATE CHANGE, MAY PROVE TO BE HER MOST DIFFICULT PERSONAL CHALLENGE AS A CLINICIAN. IT IS HOPED THAT IN TIME AND WITH FURTHER EXPOSURE TO THE TENETS OF EFFECTIVE COUNSELING, CONNI CAN LEARN TO ACCEPT AND MEET THE CLIENT WHERE THEY ARE AT IN THE PROCESS. CONNI HAS STRONG, DEEP ROOTED BELIEFS AND VALUES, WHICH MAY BE DIFFERENT THAN THOSE OF THE CLIENTS AS WELL AS HER PEERS, THAT SHE ENCOUNTERS. I HAVE SHARED THIS OBSERVATION WITH CONNI AND HAVE ENCOURAGED HER TO CONSIDER THE IMPORTANCE OF BEING OPEN AND ACCEPTING TO THE DIVERSITY OF THE POPULATION SHE WILL SERVE. Internships Ms. Leonessa obtained an intern position with True Core Behavioral Solutions (True Core). True Core provided services to the Ft. Myers Youth Academy, a juvenile detention center. True Core terminated Ms. Leonessa's internship after two days. The problems leading to her termination were those of value imposition and boundary crossing presaged by her practicum. Ms. Leonessa participated in two counseling sessions for the juveniles. Her improper conduct included sharing personal information about her abandonment by her husband and her celibacy since then. In the counseling profession this boundary crossing behavior is often damaging to the therapeutic process. Ms. Leonessa also criticized a young man who supported his girlfriend obtaining an abortion, telling him abortion was murder and talked about holding premature babies in her hands. She criticized some of the youth for engaging in premarital sex telling them it violated God's law. She told one young man his troubles stemmed from abandonment by his father. This conduct demonstrated emotionalism and an inability to respect client perspectives that the SDP was intended to ameliorate. For this reason, Hodges updated the SDP. Ms. Leonessa acknowledges that it would be professionally wrong for a counselor to advocate her personal religious beliefs and values to clients. She denies that she did so. But the preponderance of the competent, substantial evidence proves that she did. True Core reported Ms. Leonessa's termination and the causes for it to Hodges. After Ms. Leonessa's termination from True Core, Dr. Mary Nuosce, Dean of the Nichols Schools of Professional Studies and a faculty member, tried to assist her in finding another internship placement. Dr. Nuosce was the supervisor for Ms. Leonessa's internships. She approached Janean Byrne from Serenity Counseling about accepting Ms. Leonessa as an intern. Dr. Nuosce thought Serenity might suit Ms. Leonessa more because it was a faith-based counseling provider. She gave Ms. Leonessa Ms. Byrne's contact information and asked her to follow up on establishing an internship. Ms. Leonessa did not seek the internship. She refused to contact Ms. Byrne for non-specified reasons. She told Dr. Nuosce, "I just emailed her [Ms. Byrne] and turned down the position. What occurred today has taught me that I need to find a place where my values are shared and respected so I will continue to look for a sight [sic]." When Dr. Nuosce asked how she could be so judgmental about someone she had never met, Ms. Leonessa responded, "I never said anything against her [Ms. Byrne], however, I am looking for a place that shares my biblical values especially after what occurred today that is all. I do have the right to choose where I want to intern at!" Hodges' faculty continued efforts to help Ms. Leonessa locate an intern position. Ms. Leonessa obtained an internship at HEADS. Within a few weeks, HEADS dismissed her. Ms. Leonessa worked with therapist Julie Jakobi attending sessions with clients. Jerry Sprague, HEADS's clinical supervisor for Ft. Myers, selected Ms. Jakobi to work with Ms. Leonessa because he was aware of Ms. Leonessa's ardent Christian beliefs and Ms. Jakobi held similarly strong Christian beliefs. The first client Ms. Jakobi and Ms. Leonessa saw was a 13-year old female with a long history of running away and conflict with her mother. They saw her at school in a room in the office. The student was very concerned about telling her mother that she was gay. After the student left the room, Ms. Leonessa turned and loudly and aggressively confronted Ms. Jakobi telling her she was wrong in her counseling of the student. Ms. Leonessa insisted Ms. Jakobi should have told the student that she would catch sexually transmitted diseases, she would become depressed, and she would commit suicide. The room's door was open, and a secretary sat right outside the door. The lack of privacy and danger to client confidentiality concerned Ms. Jakobi. They also visited a client, a man concerned about becoming an opioid addict and the effect on him of growing up in a rough neighborhood. He and his wife were separated and had completed the documents necessary to finalize their divorce. Ms. Jakobi had informed Ms. Leonessa of the pending divorce before they arrived at the home. Ms. Jakobi and Ms. Leonessa met with the client at his wife's home. Ms. Leonessa began talking to the man about how he could work through his problems and learn to love his wife better. This "froze" the client and sabotaged efforts to provide the addiction counseling he sought. On the drive back to the office, Ms. Leonessa was very rude and hostile to Ms. Jakobi. Ms. Leonessa was physically tense. Her tone was sharp. Ms. Leonessa brought up homosexuality again and renewed advocacy of "conversion therapy." At the time, this was not permitted. As soon as she left Ms. Leonessa at her car, Ms. Jakobi called Mr. Sprague to report the day's incidents. He concluded that quick action was required and asked Ms. Leonessa to apologize to Ms. Jakobi. It is worth noting that Mr. Sprague's email signature quotes from the Bible, Psalm 82:3. Ms. Leonessa’s apology read as follows: "I realize not everyone see's [sic] things eye to eye. However when differences occur truth needs to be spoken in a way that is gentle. I realize my 'tone' is not always gentle and I am working on this." This is no apology and was not received as one. Mr. Sprague spoke further to Ms. Jakobi and another counselor who worked with Ms. Leonessa about their experiences with her. He concluded that he was "not convinced that she will not cause harm." He decided that terminating Ms. Leonessa promptly was best. Mr. Sprague's September 27, 2018, email to Dr. Nuosce explaining his decision is persuasive and was reasonably accepted by the Hodges faculty. He began by reporting that Ms. Leonessa was very difficult to communicate with. He reported that Ms. Leonessa "failed at a very basic level to demonstrate the ability to maintain appropriate boundaries and to demonstrated basic empathy skills." His email went on to state: I would be surprised if you didn't already know this as her strong personality, strong beliefs and aggressive tendencies are hard for her to manage. She had told me she has had conflicts with professors so I imagine this is why. He concluded that Ms. Leonessa was "stuck on a superficial (immature) level of reasoning and so she is failing to both read others well and to maintain appropriate social boundaries … ." Mr. Sprague strongly suggested Ms. Leonessa consider a different career than counseling. This report, supported by the evidence in this case, caused Dr. Nuosce to conclude that Ms. Leonessa was not complying with her revised SDP. Also Ms. Leonessa had failed to complete two internship programs and one practicum. Failure to complete the practicum revealed significant problems which persisted. Three internships are required to obtain a counseling degree from Hodges. Ms. Leonessa completed none. For these reasons, Hodges administratively withdrew Ms. Leonessa. Ms. Leonessa appealed within the Hodges system. Her appeal papers did not acknowledge what she had done wrong or how she proposed to improve. Instead they discussed her background and accused Hodges of repeatedly violating its policies and procedures. Hodges' Provost reviewed the many documents generated during Ms. Leonessa's tumultuous enrollment. He noted the similarity of reports of unacceptable behavior from different and unrelated sources, within and without the University. He denied the appeal. Summary The record of Ms. Leonessa's three years in Hodges' counseling program, including her time in practicum and internships, is a record of consistent, disputatious conduct. When the subject of religion, specifically Christianity arose, it was because Ms. Leonessa initiated criticisms of others' behavior as unchristian, because Ms. Leonessa sought to advocate her Christian views to counseling clients, and because she explicitly judged clients' actions, decisions, and options by her standards. The evidence does not prove that Hodges took any actions against Ms. Leonessa, including imposition of the SDP and termination from the program because of her religion. Hodges' terminated her because she violated the fundamental counseling requirement to accept clients as they are and not seek to impose her values on them. The record does not prove that any of the practicum and internship providers took any actions against Ms. Leonessa on account of her religious beliefs. Furthermore, the practicum and internship providers were independent of Hodges. They were not subject to its control or direction or acting in its stead.
Recommendation It is Recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Connie Leonessa. DONE AND ENTERED this 22nd day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Thomas K. Rinaldi, Esquire Bond, Schoeneck & King, PLLC Suite 105 4001 Tamiami Trail North Naples, Florida 34103 Cheyanne Costilla, Gen. Co. Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Connie Leonessa American Liberties Institute Post Office Box 547503 Orlando, Florida 32854 Matthew Brown McReynolds, Esquire Pacific Justice Institute Post Office Box 276600 Sacramento, California 95827 Michelle Wilson, Executive Director Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments. At no time before filing the petition in the present case did petitioner request any maintenance benefits. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William R. Barker, Esquire 128 West Central Boulevard Orlando, Florida 32802 Douglas E. Whitney, Esquire Room 912, 400 West Robinson Orlando, Florida 32801
Findings Of Fact The Respondent, Rita E. Strauss, is a certificated and tenured teacher pursuant to the pertinent provisions of the Act cited above. The Respondent has been in the employ of the Board at all times pertinent hereto. Her most recent school assignments have been to Long Branch Sixth Grade Center and Holiday Hills Elementary School, in Duval County, Florida. The Board is, for purposes of this proceeding, an agency of the State of Florida charged, as pertinent hereto, with regulating and enforcing the Teacher Employment and Practice Standards embodied in the Act cited above. Elementary school counsellors situated as the Respondent are responsible for counselling students and consulting with parents and teachers regarding progress problems and potential problems and related matters concerning counselled students or students recommended for counselling. Counsellors must coordinate counselling-related special services with the Board's staff and other county agencies and parents. Counselling activities involve counselling individual students and small groups of students, as well as providing guidance for students in the classroom situation. A guidance counsellor is also charged with being the organizational agent at the school for the Child Study Team ("CST"). The counsellor's duties are specifically set forth in Exhibit B in evidence, the job description for elementary school counsellors of the Board. Counsellors are allowed to select their own guidance materials. They are not limited by the Board, except that materials must be appropriate for the age level of students to which the materials are presented. The specific duties of a counsellor vary from one school to the other depending upon the particular need of the school, its students, and the principal's direction concerning the emphasis of the counselling effort. It is important that counsellors spend a certain amount of time with students in the counselling effort. Florida law mandates that counsellors spend 75% of their time in direct contact with students. This time must be documented through logs required to be kept by guidance counsellors. Classroom guidance is also a valid and required part of an elementary counsellor's role. Guidance counsellors are not considered to be performing their job adequately if classroom guidance sessions are not conducted. They are expected to know how to make a classroom guidance schedule and are expected to be able to and carry out the organization of a planned program which they must disseminate to all instructional and other pertinent staff members in the school so that teachers and administrators are aware of their present and proposed counselling activities. The CST is a committee involved in placing students in special education programs. This involves testing, parental contact, and consideration of and carrying out of "interventions" and observations. This is considered by the Board to be an important part of a counsellor's job, as well as the individual counselling, small group counselling, and classroom guidance. All of these duties are included in Exhibit B, a counsellor's job description. Ms. Selinda Keyes was the Principal at Long Branch Sixth Grade Center from 1984 through 1989. She had been an employee of the Board since 1972. She holds a bachelor's degree, as well as a master's degree and is certified in guidance, as well as in educational leadership. In addition to her other experience with the Board, she served as an elementary school guidance counsellor, herself, for five years. Ms. Keyes first came into contact with the Respondent in 1984, when Ms. Keyes began her principalship at Long Branch. The Respondent was already serving as a guidance counsellor at that school when Ms. Keyes arrived. A guidance counsellor's duties at Long Branch included gathering materials for the CST, helping in the articulation of students, setting up individual counselling sessions, assisting teachers, having interventions for students, assisting the parents in helping students with problems, and assisting the students, themselves. Between 1984 and 1988, Ms. Keyes noted a decline in performance level from the Respondent. In August of 1988, on the Respondent's annual evaluation, Ms. Keyes evaluated the Respondent as performing inadequately. Ms. Keyes met with the Respondent at the beginning of the 1988-89 school year to review specific improvements that Ms. Keyes expected the Respondent to make during the upcoming year. Exhibit E in evidence encompasses the recommendations which Ms. Keyes made to the Respondent in this regard. Among other items, Ms. Keyes felt that the Respondent needed to communicate in an appropriate and professional manner to administrators and other school personnel. Ms. Keyes also recommended that the Respondent do a better job at maintaining accurate written records and in maintaining positive professional relations and interactions with school personnel at all times, which had been an observed problem in the past. Ms. Keyes met with the Respondent once again on September 9, 1988 to reiterate the areas of the Respondent's performance which needed improvement and to give her a written memorandum concerning the need for these improvements and detailing what the improvements were to be. In spite of these conferences and written directives, which included the requirement of better preparation for the activities and operations of the CST, Ms. Keyes observed that on September 20, 1988, when she met with the Respondent, that the Respondent was not yet prepared for the CST activity scheduled for September. Ms. Keyes met with the Respondent on September 21, 1988 to discuss the Respondent's inappropriate methods of communications with teachers. During that conversation, the Respondent became extremely angry and told Ms. Keyes to "get off her back" and that Ms. Keyes was making her "sick". Shortly thereafter, the Respondent went to Ms. Keyes' office unannounced, slammed the door in a hostile manner, and addressed Ms. Keyes by saying "kiss my butt". She then threatened Ms. Keyes by saying "I will sue you. Just go ahead and fire me and I will sue you and I will start a company". The CST met on September 27, 1988. The Respondent was unprepared for the meeting and did not have the correct documents prepared to present to the CST despite Ms. Keyes' multiple efforts to see that that duty was performed. On September 28, 1988, Ms. Keyes telephoned the Respondent to find out why she had not attended the school's open house the evening before. During this conversation, the Respondent told Ms. Keyes that she did not want to hear anything that Ms. Keyes had to say and hung up the telephone on Ms. Keyes. A few minutes, the Respondent stormed into Ms. Keyes' office and slammed the door. Standing in front of Ms. Keyes' desk, the Respondent turned sideways, pointed to her posterior, and told Ms. Keyes to "kiss my butt". The Respondent was quite angry and left Ms. Keyes' office, slamming the door behind her, and then opened the door and stated "hit me, hit me, just go ahead and hit me". Ms. Keyes then arranged to meet with the Respondent on October 3, 1988 to discuss the Respondent's unprofessional and erratic behavior of September 28, 1988. Ms. Keyes presented the Respondent with a memorandum dated September 28, 1988 regarding the Respondent's inappropriate behavior. See Exhibit F in evidence. The memorandum warned the Respondent that her demonstrated lack of respect for authority and display of hostility was considered insubordination and would not be tolerated. The Respondent refused to sign a receipt for the memorandum and, instead, retorted that she would not read it and did not want to hear it. The Respondent then stated "go ahead and hit me, hit me, and I will hit you back". The Respondent then stormed out of Ms. Keyes' office, once again, slamming the door behind her. Because of the continuing nature of this sort of behavior, Ms. Keyes, on October 5, 1988, arranged for the Respondent to meet with Ray Bailey, the Director of Personnel for the Board. When Ms. Keyes met with the Respondent to arrange the meeting, the Respondent told Ms. Keyes that there was no sense in talking with Mr. Bailey because she had not done anything wrong. The Respondent then stated that she was "just going to lie because he was a friend of Ms. Keyes and that she was not going to tell the truth". The Respondent continued by saying "I will sue you, just fire me and I will sue you and get money and just be able to sit at home". During this same meeting, Ms. Keyes brought to the Respondent's attention that she had given inaccurate information to a student's mother regarding the CST. On October 7, 1988, Ms. Keyes inquired of the Respondent to see if she had kept the appointment with Mr. Bailey. The Respondent had not done so and had, thus, refused to follow Ms. Keyes' direction in this regard. During this same meeting, Ms. Keyes, again, gave the Respondent guidance on how she should improve her performance. On that same day, Ms. Keyes also counselled with the Respondent regarding her claimed illness. Ms. Keyes, once again, encouraged the Respondent to get medical attention if she felt that she needed it. From October, 1988 through January, 1989, Ms. Keyes observed no improvement in the Respondent's poor performance, including her failure to keep an adequate daily log of her activities, after being directed to do so by Ms. Keyes. On January 10, 1989, Ms. Keyes met with the Respondent, once again, to determine if she had done required follow-up work regarding a student named Jovan Scott, which the Respondent had not done. This resulted in the student being denied required mental health services for some two weeks. On January 26, 1989, Ms. Keyes observed the classroom guidance session conducted by the Respondent. In that session, the students were observed to be noisy, not listening to the presentation, and not keeping on task. When Ms. Keyes later discussed the poor guidance session with the Respondent, the Respondent explained that the class went poorly because the "kids were bad" and they would not listen because they were "bad". The Respondent also stated that she was in a "bad" school and that the children were "bad kids", they were too old, and that she needed to work with younger kids in a better school. On January 31, 1989, Ms. Keyes met with the Respondent to evaluate the Respondent's performance as a guidance counsellor for the 1988-89 school year at the Long Branch School. Exhibit G in evidence reflects the inadequate performance of the Respondent. Among other things, Ms. Keyes instructed the Respondent to improve her demeanor toward teachers, to show concern for students and parents, to present and maintain accurate CST records, to keep an adequate daily log, to attend counsellor workshops, and to assist in sharing the total responsibility of the school toward the students. Also, on this date, Ms. Keyes inquired of the Respondent concerning whether she had been attending the Board's "in service" training sessions for guidance counsellors, as she was required to do. The Respondent indicated that she did not attend those meetings because she knew all of the material and that there was no need for her to go. Ms. Keyes observed other poor performance examples on the part of the Respondent during the 1988-89 school year, which included the Respondent's failure to give adequate information to teachers, her refusal to use a variety of counselling techniques, and her inability to communicate and relate to students, as well as the failure to adequately develop and convey information to students. Her individual counselling techniques were inadequate. She would see individual students for an excessive period of time, as much as two or three hours. In that time period, she would allow them to play with toys or other materials in the classroom and would send them on errands instead of conducting counselling as she was supposed to do. During the 1988-89 school year, Ms. Keyes observed numerous classroom guidance sessions run by the Respondent. In those sessions, she observed that the students consistently failed to pay attention or stay on task. The Respondent would praise them inappropriately for inappropriate behavior and was observed to be unable to control their behavior. In collecting information for the CST, as she was charged to do, the Respondent would discourage teachers from requesting testing for students, saying "it's a lot on me, I have a lot to do, don't refer this child". Despite the Respondent's discouragement of referrals, approximately 80 students were processed through the CST concerning counselling during that school year. On the average, one out of every ten "packets" concerning students for the CST would be incomplete. The Respondent was responsible for preparing these packets. It was her duty to make sure that the information in the packets was complete. Throughout that school year, the Respondent frequently forgot or failed to observe deadlines and other important dates which she was required to observe. The Respondent failed to complete important assignments which she had concerning her other duties. She was observed to be unable to select and effectively direct the activities of teachers regarding testing, the SAT program, and concerning the EST and CST packets. In summary, it was established, through Ms. Keyes testimony, which was unrefuted, that the Respondent was an ineffective guidance counsellor during the 1988-89 school year at the Long Branch School. Her final performance evaluation or review for that school year reflected her poor performance by her receiving an unsatisfactory rating. The Respondent's job duties', while she was at the Long Branch School, included ordering the standard achievement tests ("SAT") for the school. She was never authorized, however, to order a first-grade SAT. Ms. Keyes discovered, however, that on April 25, 1989, the Respondent had in her possession the answer key and student manual to a Form E first-grade SAT. The next day, on April 26, 1989, Ms. Keyes discovered that the Respondent also had a teachers manual for the first-grade SAT. When questioned by Ms. Keyes as to why she had these materials in her possession, the Respondent stated that she had ordered them "just in case". Ms. Keyes questioned the other teachers and confirmed that no one else had requested a first-grade SAT. Ms. Mirta Martinez is employed as a first-grade teacher at Parkwood Heights Elementary School. Carl Strauss is the Respondent's son. Ms. Martinez was Carl's first-grade teacher during that 1988-89 school year. During the 1988-89 school year, Carl had done poorly academically; and Ms. Martinez had sent scholarship warnings home to his parents, Mr. and Mrs. Strauss, as well as a letter indicating than he might be retained in the first grade the following year. The Form E SAT was given by Ms. Martinez to her class on April 24, 1989. Carl Strauss' performance was much better than Ms. Martinez expected, judging from his prior academic performance in her class. On April 25, 1989, Ms. Martinez noticed Carl sitting in the front of the classroom. As she gave the test, she noticed that he was going ahead of her and answering questions which she had not yet read aloud to the class. When she cautioned him that he should slow down, he said that the test was easy and that he knew all of the answers. Indeed, Carl did very well on the Form E SAT he took on those dates. He scored in the 58th percentile, which was much better than his classroom performance would indicate he could do. Later, he was given a Form F SAT, which is of the same difficulty level, is designed for first graders and tests the same information but simply with different questions. On this test, Carl did much worse. He scored in the 37th percentile, which performance was consistent with that to be expected, judging from his past classroom academic work. A drop of 20 percentile points is unusual in SAT scores from one test to the next. Students usually have fairly constant scores on the various areas tested throughout their school career, with perhaps as much as a 10 percentile point differential at most. This situation was brought to the attention of the appropriate supervisory personnel with the Board; and ultimately, the Respondent was disciplined by the Florida Department of Education, Education Practices Commission, which found that she had supplied her son with answers to the first- grade SAT in question. After making this determination, the Education Practices Commission reprimanded the Respondent with an official letter of reprimand, in evidence as Exhibit GG. Dr. Sarah Cunningham Harper holds a bachelor's degree from the University of Central Florida in psychology. She has a master's degree from the University of Central Florida in counselling and a doctorate from Nova University in educational leadership. She testified on behalf of the Board in this proceeding. Her experience includes classroom teaching, as well as guidance counselling for eight years. She then became a resource counsellor for the Board and was later promoted to be a supervisor for guidance counsellors for the Board. She provided resources for guidance counsellors, giving them materials they needed in order to adequately perform their duties. Dr. Harper first met the Respondent at Long Branch School in September, 1988. She met with the Respondent and Ms. Keyes, together, and later with the Respondent alone. Dr. Harper reviewed the resources available to the Respondent and gave her additional suggestions regarding material she might use in her duties. Dr. Harper further arranged specific training for the Respondent, involving meeting with two other guidance counsellors to get ideas as to how a guidance counsellor could effectively operate in the classroom. Further, Dr. Harper gave the Respondent suggestions on how to feel better about her duties and employment situation and referred her to Suni Peterson, with the Employee Assistance Program of the Board. She also suggested that if the Respondent was feeling physically ill, she should consider taking sick leave. Dr. Harper documented this meeting with the Respondent and sent her a copy of the document outlining recommendations for improvement. Dr. Harper also encouraged the Respondent to attend the Professional Staff Development Program which the Board furnished for guidance counsellors. These workshops were held once a month. In the 1988-89 school year, 37 hours of in-service training was, thus, offered to guidance counsellors. The Respondent apparently never attended any of these sessions. Dr. Harper never saw her attend nor did she sign in at any of the workshop sessions, which would indicate her attendance if she had done so. Dr. Harper then followed up on the matter to see if the Respondent had met with either Ms. Cobb or Ms. Converse, the guidance counsellors whom she had suggested that the Respondent meet with to obtain ideas about more effective counselling operations in the classroom. The Respondent had never met with Ms. Converse and did not meet with Ms. Cobb until the second semester of the 1988-89 school year. Exhibit J in evidence reflects Dr. Harper's attempts to help the Respondent. This included the day the Respondent spent observing another elementary guidance counsellor and arranging for a district-level counsellor to work with the Respondent. Dr. Harper met with the Respondent again in January of 1989. At that time, Dr. Harper reviewed what the Respondent had accomplished from September, 1988 through January, 1989. Dr. Harper found that the Respondent's log was totally disorganized and that she had no organized calendar nor documentation of student counselling. At this meeting, the Respondent continued to complain about Long Branch, stating that the school was making her ill and that she was being unfairly treated by Ms. Keyes. Dr. Harper, once again, encouraged the Respondent to take time off if she felt it to be necessary. Dr. Harper also reminded the Respondent to be a "team member" since that was an important part of the functions of a guidance counsellor. In a letter dated April 25, 1989, the Respondent was notified that since she had received an unsatisfactory evaluation, she had a right to transfer to another facility. She was also put on notice that her employment with the Board would be terminated if her performance did not rise to a satisfactory level within the next school year. See Exhibit C in evidence. Consequently, in the 1989-90 school year, the Respondent was transferred to Holiday Hill Elementary School ("Holiday Hill"). It is a smaller elementary school, with approximately 500 students. At the beginning of that school year, Dr. Harper met with the Respondent and Ms. Marshall, the Principal of Holiday Hill, to discuss the guidance program at that school. Exhibit K in evidence demonstrates the counselling duties that the Respondent was expected to accomplish at Holiday Hill. That evidence is unrefuted and is accepted. The Respondent was to present classroom guidance lessons from 2:00 p.m. to 3:15 p.m. each day, to supervise the Student Council, to supervise the Star Student Program, to organize Career Days, to attend all CST meetings, to counsel individual students, to be prepared for grief counselling for students, and to counsel with students and bus drivers regarding "bus referrals". Both Dr. Harper and the Respondent agreed that these were legitimate guidance counsellor functions. Dr. Harper was convinced that Holiday Hill had made a commitment to have a strong guidance program and that this was a good opportunity for the Respondent to use her talents and to show her skills as a counsellor. Dr. Harper inspected the facilities that the Respondent was to use and determined them to be adequate. Dr. Harper stressed to the Respondent that she was to attend in- service training during the 1989-90 school year. However, at the very next in- service training, which started at 8:00 a.m., the Respondent did not arrive until 9:30 a.m. and indicated that she wished to leave at 10:30 a.m. Toward the end of September, 1989, Dr. Harper went to Holiday Hill to check on the Respondent's progress. Once again, the Respondent complained about her situation at that school and about a lack of supplies. The Respondent also complained that she had to do cafeteria duty. Dr. Harper pointed out to her that this would be a good opportunity for her to visit with students. Dr. Harper also conversed with the Respondent about meeting with Marianne O'Donnell, another counsellor, to receive training from her on the use of a guidance tool known as "Penelope Mouse". Dr. Harper, at this September meeting, asked the Respondent if she had prepared a classroom schedule. The Respondent stated that Ms. Marshall had not approved the schedule which the Respondent had presented to her and that it was being revised. The school had already been in session for five weeks at that point. Exhibits Z and DD, in evidence, represent guidance activities which the Respondent presented to kindergarten students at Holiday Hill during the 1989-90 school year. Dr. Harper found that Exhibit Z was not an appropriate counselling activity for a kindergarten-age student. The level of the material in that Exhibit is beyond a kindergarten-age student's comprehension level. It was inappropriate even as a coloring tool because the designs to be colored by the student were too complicated for a kindergarten student. Dr. Harper also established that Exhibit DD was an inappropriate counselling tool for kindergarten or first-grade students. The "Seals Guidance Program" was a supplementary guidance program and should not be used alone. Dr. Harper also reviewed a counselling session that the Respondent described concerning a student whose mother was an alcoholic. Dr. Harper established that the Respondent's counselling technique for such a situation was inappropriate. Dr. Harper also established that it is inappropriate to have a student sit in an individual guidance counselling session and not converse with the student. A counselling session should be a learning situation and involve an exchange of ideas between the counsellor and the student, with both persons conversing and interacting together. Dr. Harper established that it is inappropriate to use counselling as a gossip session and that it is inappropriate to keep an individual in a counseling session for one or more hours. An individual counselling session should last no longer than 30-35 minutes. The Respondent conducted counselling sessions in the inappropriate manner described above by Dr. Harper. Ms. Carolyn Bishop Stone is employed by the Board and has been for 22 years. She is Supervisor of Guidance Services. Ms. Stone assumed this position when Dr. Harper left the Board. Ms. Stone's experience includes elementary school teaching and elementary school guidance. She has a bachelor of science degree in elementary education and master of art's degree in counselling, with a specialty in school psychology. Ms. Stone is presently a doctoral student in educational leadership. She serves as a resource person for guidance counsellors for the Board. Ms. Stone first met the Respondent on January 23, 1990 because her Principal, Mildred Marshall, had indicated that there were some problems with the Respondent's performance. Ms. Stone arranged with the Respondent to observe a classroom guidance session conducted by the Respondent. The Respondent selected a kindergarten class guidance session to be observed by Ms. Stone on January 25, 1990. In observing this classroom guidance session, Ms. Stone noted that the Respondent used no management techniques to get the kindergarten students focused on the lesson. It took five minutes to get the class under control, and the Respondent then began the lesson by using a handwritten 8"x10" piece of paper on which she had written the term "citizenship" and included a definition of "citizenship", which apparently came from a dictionary. It was in small print and written in crayon and trailed off the paper and was not legible to the students because it was not large enough for them to see at the distance at which it was presented to them. There were too many words on the paper and it was beyond the language level of kindergarten students. Ms. Stone observed that the lesson taught by the Respondent was above their readiness or comprehension level. According to Ms. Stone, the lesson deteriorated from the beginning. The Respondent spoke in a soft monotone, and the students clearly were not understanding the lesson and were not maintaining their attention. The Respondent did not demonstrate that she knew how to keep the students' attention. The Respondent failed to give the students a response to their own statements or expressed ideas concerning the lesson material nor to enlarge on what the students were saying in order to make the lesson more understandable. This verbal part of the session took only a few moments. The remainder of the lesson consisted of handing out an 8"x10" "ditto sheet", with 12 seals on it, which the students used as a design for coloring. This was shown to be inappropriate for this age level since the items on the page were too small for them to be able to color with their level of eye/hand coordination and manual dexterity. The Respondent failed to explain to the students how the seals related to the concept of "citizenship". At that point, Ms. Stone circulated through the class and spoke to some students, which confirmed her suspicion that the children did not understand what the lesson was about. There was approximately five minutes of attempted teaching of the lesson and 20 minutes of coloring. In Ms. Stone's view, as one highly trained in appropriate guidance counselling and teaching techniques, the classroom guidance session which she observed conducted by the Respondent was totally inadequate. This was especially disturbing to Ms. Stone considering that the Respondent had had 10 or 11 years of counselling experience at that point. After the classroom session was over, Ms. Stone counselled the Respondent concerning the observed weaknesses in her lesson and presentation. Ms. Stone also pointed out some resources available to the Respondent to improve her performance. Ms. Stone further informed the Respondent that she would be willing to visit the Respondent again and to help her in any way. Ms. Stone followed up on this offer with a letter reiterating that willingness to help the Respondent. Ms. Stone also informed the Respondent that developmental guidance books at the guidance office were available for her use. Lastly, Ms. Stone offered Ms. Strauss another guidance counsellor to assist her in improving her counselling techniques. She never took advantage of this offer. Indeed, the Respondent never contacted Ms. Stone for any further assistance. Ms. Stone never visited the Respondent at Holiday Hill after that meeting since she made it clear that she was available to her any time she needed assistance. Ms. Stone did not want the Respondent to perceive that any of her actions constituted harassment; therefore, instead of repeatedly going to visit with the her, she simply left the door open for the Respondent to meet with her or seek assistance any time the Respondent felt it necessary. However, Ms. Strauss never requested any further assistance from Ms. Stone. Mildred Marshall has been the Principal of Holiday Hill for 18 years. Before becoming a principal, she was a teacher for 12 years in the elementary school system. She has both a bachelor of art's degree and a master of science degree. She has been employed by the Board for a total of 39 years. The Respondent was assigned to Holiday Hill for the 1989-90 school year, with Ms. Marshall being aware of her less-than-satisfactory evaluation concerning her performance the year before at Long Branch. Being mindful of this, Ms. Marshall promulgated a list of duties which she expected the Respondent to perform while at Holiday Hill. Exhibit K in evidence is the written list which Ms. Marshall gave to the Respondent before the school year started. The list included, among other duties, supervising the Student Council, checking fifth grade cumulative folders at the end of the year, counselling with individuals, counselling with students who were receiving bus referrals, working with the Star Student Program, giving grief counselling to students, and counselling bus drivers about bus referrals. Ms. Marshall informed the Respondent that she expected her to improve in those areas of her duties and responsibilities which had been rated unsatisfactory the previous year. This memorandum constituted Ms. Marshall's plan of assistance for the Respondent for that ensuing school year. Exhibit M in evidence reflects that Ms. Marshall had reviewed each item of the July 3rd memorandum with the Respondent. The Respondent appeared to understand Ms. Marshall's directions to her during this conference. Upon the commencement of that school year, Ms. Marshall immediately had problems with the Respondent's performance, particularly involving her failing to schedule classroom guidance sessions and failing to go to classrooms to conduct guidance sessions. The Respondent was expected to counsel 15 classes on a rotating basis. The classroom teachers relied on the Respondent coming to the classroom and reserved portions of their days for her lessons. However, the Respondent failed to set up a teaching schedule for these classroom guidance sessions. Although Ms. Marshall informed the Respondent that she needed to be in the classrooms between 2:00 p.m. and 3:15 p.m., after six weeks of the school year had passed, as shown by the October 8th memorandum to the Respondent from Ms. Marshall (Exhibit O in evidence), the Respondent still had not formulated a classroom guidance schedule. On September 27, 1989, Ms. Marshall gave a memorandum to the Respondent (Exhibit N in evidence) admonishing her about her failure to submit a log to Ms. Marshall concerning how she spent her time and enumerating the children she had counselled. Additionally, before the school year started, Ms. Marshall had informed the Respondent that she needed to personally inform Ms. Marshall of any absences. In spite of this, the Respondent continued to be absent and not to report to Ms. Marshall of her intent to be absent. In October, 1989, Ms. Marshall gave the Respondent an early evaluation which reflected that her performance was unsatisfactory and declining. Ms. Marshall and the Respondent met on November 1, 1989. In that meeting, Ms. Marshall pointed out to the Respondent the problems she was having with the Respondent regarding her failure to conduct classroom guidance sessions, her unnotified absences, her missed in-service guidance training sessions, and her failure to attend the "planning day". Ms. Marshall informed the Respondent that she was not meeting the needs of the teachers and students at the school. From August until November of 1989, the Respondent had still not inaugurated and followed a classroom guidance schedule. Exhibit R in evidence, for example, reflects the problems that a kindergarten teacher was having in getting the Respondent to come to her classroom for guidance sessions. By November 2, 1989, the Respondent had still not gone to Ms. Dees' classroom for any guidance sessions. When Ms. Marshall counselled the Respondent about this, the Respondent continued to have excuses such as "I didn't know I was supposed to be there" or "I was on my way there". The very next week, the Respondent missed a classroom guidance session scheduled for Ms. Dees' class. Exhibits T and V in evidence reflect the November 30th classroom guidance session, which Ms. Marshall observed the Respondent give. Ms. Marshall observed that the Respondent was ineffectual in getting control of the students and getting them to be quiet so they could get the benefit of her lesson. This was to be a lesson where children used crayons; however, one entire table of students had no crayons, and it took her a substantial period of time to notice that. The Respondent did not gain the students' attention and constantly had to admonish them to stop talking. It was not an effective guidance session. The Respondent indiscriminately praised students for inappropriate responses and screamed at the children to "quit talking!". The children ignored this approach and continued to talk and were off task and out of control during this classroom guidance session. The elementary teachers at Holiday Hill complained about the fact that when they came into their classrooms after one of the Respondent's guidance sessions, the children were out of control. Additionally, the Respondent was unable to effectively operate the Student Council Program, which was one of her duties. During 1989-90, a child in the Student Council Program appeared to be running the program instead of the Respondent. The Respondent also was ineffective in operating the Star Student Program. The Respondent complained that working with Student Council and conducting the Star Student Program was not a part of her counselling job, in her view. Consequently, Ms. Marshall relieved her of those responsibilities and encouraged the Respondent to make a career change if she felt that that would be helpful. The Respondent used a room for her counselling activities, where the extended day-care material, such as toys, "Play Doh" and the like, were kept. Instead of counselling, she allowed her counselling students to play with toys and other supplies. She also allowed students to return to their classrooms unescorted. This caused disruption when the children would run up and down the hall and posed a potential risk to the students, themselves, since many of them were emotionally handicapped. The Respondent continued to fail to escort children back to their classrooms, as reflected by Exhibit Y in evidence. The Respondent, on occasion, would leave children alone and unsupervised in her classroom while she went to eat lunch. It is never appropriate to leave a student unattended at the elementary level, especially without telling the next- door teacher to supervise the children. The Respondent was observed, on those occasions when she would escort children to her counselling session, to go to the door of the teacher's classroom and just yell across the room to get the child to come with her. In so doing, she would disrupt the teacher's lesson. Finally, these problems culminated in a written warning issued to the Respondent from Ms. Marshall in evidence as Exhibit X. Ms. Marshall thereby informed the Respondent that she would get an unsatisfactory evaluation for the 1989-90 school year unless her performance improved. Ms. Marshall observed a number of classroom guidance sessions conducted by the Respondent. In those sessions, the Respondent never had control of the classroom, failed to communicate effectively with the children, was unable to integrate the lesson to the group as a whole, and was unable to adjust the guidance lesson to the correct learning level of the students. Exhibit Z in evidence is a communication from a kindergarten teacher regarding an inappropriate counselling lesson which the Respondent had given to her kindergarten students. Ms. Marshall had informed the Respondent on a number of occasions that other more appropriate counselling materials were available for her use. This included a "DUSO kit" with puppets. Ms. Marshall encouraged the Respondent to use the media center, as well, and to use some of the other materials available. The Respondent never incorporated any other counselling materials or plans suggested to her into her counselling lessons. In the Respondent's end-of-the-year evaluation given on February 14, 1990, she was rated unsatisfactory. From mid August, 1989 to April, 1990, when the Respondent left Holiday Hill, she was able to accomplish only one of the expectations she was told to accomplish at the beginning of that school year. This was the educational evaluation of children in the school. The Respondent failed to coordinate or organize a Career Day, so that none was held at Holiday Hill during the 1989-90 school year, in spite of the fact that prior to the beginning of the school year, she had been informed that that was one of her duties. Her performance on the CST was also poor. Her observations concerning students was very topical and shallow and, consequently, was not helpful or effective. She also failed to give grief counselling, to handle school bus referrals or to counsel bus drivers concerning referrals during the 1989-90 school year, although that was part of her duties. She failed to use the "seals program" appropriately and effectively. It was designed to be a part of her counselling program and not the total emphasis of the program. Additionally, during the 1989-90 school year, the Respondent, in handling a child abuse case, called the Department of Health and Rehabilitative Services and reported the child abuse, the child and parent, and the home address to the Department. In fact, she reported the wrong child and the wrong parent and wrong home address to HRS. The parent who was falsely reported understandably was extremely upset. When questioned about this incident, the Respondent indicated simply that "Well, the rolodex flipped" as the reason for giving the wrong name, address and telephone number to HRS. Ms. Susan Joseph is an elementary school teacher at Holiday Hill. She has been there 11 years and employed with the Board for 17 years. She was a primary resource teacher during the 1989-90 school year. She holds a bachelor of science degree and a master of science degree in elementary and early childhood education. She first met the Respondent during that school year. They shared a room at Holiday Hill. The room was a regular-size classroom, approximately 30' by 30', with a sink, water fountain, and bookshelves. It was divided in half by a tall bookcase and "cubbies" or compartments for the students to place their materials and books in. Since this divider did not extend either to the ceiling or to the back wall of the room, Ms. Joseph could observe what was occurring on the Respondent's side of the classroom. Ms. Joseph observed that the small group counselling sessions conducted by the Respondent were frequently out of control. They were noisy and disruptive, with children running around the room, pushing, shoving, and shouting. The Respondent had no control of her students. Ms. Joseph would go to the Respondent's side of the classroom and take control of her students. Because of the Respondent's inability to control her students, Ms. Joseph began scheduling her time with her students at a time other than during the Respondent's small-group counselling sessions. The Respondent's disciplinary measures generally consisted of loudly and ineffectively shouting "shut up, shut up, or you will have to go back". Ms. Joseph also observed that the Respondent's general technique in small group counselling sessions was to write the lesson on the chalkboard in cursive writing. This is inappropriate since cursive writing is not taught to the students until the third grade in Duval County. The students involved had not yet achieved the third-grade level. The Respondent's technique would be to read the objective on the board, then hand out drawing paper, and have the students "draw the topic". After the students finished drawing, the class would become disruptive. The Respondent was observed to use the same "methods whether the children were in kindergarten or in fifth grade. This is inappropriate because of the different levels of learning for elementary school children. Ms. Joseph never observed the Respondent conduct a discussion session with the children that would integrate the lesson she had written on the chalkboard so that they could comprehend it. Ms. Joseph also observed an inappropriate lesson, whereby the Respondent asked second-grade students to draw a picture of what their last wish would be if they ware going to die in a few days. In Ms. Joseph's experience, this is an inappropriate topic unless there has been a death and grief therapy is going on. This session and the group of students involved was not undergoing grief therapy. The only follow-up discussion concerning this topic was when one of the students asked what they would die of, and the Respondent informed them "cancer" or "AIDS" as an example. The Respondent simply never communicated any counselling concept to the students with regard to this session and topic. Ms. Joseph also observed the Respondent allowing her counselling students to play with extended day-care materials during counselling sessions, including coloring books, lego toys, and play doh. This was allowed to occur instead of counselling being delivered to the students. The Respondent would simply sit at her desk on these occasions while the students, individually, played with the toys. No counselling took place during these sessions. Ms. Joseph also observed the Respondent accuse students of lying or stealing paper. She found these interactions between the Respondent and her students inappropriate. Ms. Joseph observed some individual counselling sessions conducted by the Respondent. These counselling sessions amounted to no more than a gossip session, with discussions about their weekend plans or talking about other students and their mothers or other students' attire. In particular individual counselling sessions, Ms. Joseph observed the Respondent sitting at her desk doing nothing while the children were playing with extended day-care materials, which had no relationship to the counselling session, and engaging in no dialogue between herself and her students. In particular, Ms. Joseph recalled a student, Sarah Williams, engage in individual counselling sessions with the Respondent. Sarah, a third-grade student, came in for three or four days consecutively for four to five hours each day. Sarah would run errands for the Respondent, write on the chalkboard, play with materials, or just gossip with the Respondent. Ms. Joseph informed Ms. Strauss at the time that she felt that this was inappropriate as a counselling method. Near the end of September, 1989, when Ms. Joseph attempted to help the Respondent devise a classroom guidance schedule, she found that she did not understand it, after Ms. Joseph explained it to her. Consequently, at times when the Respondent was scheduled to be in the classroom, she did not arrive and could not be found. Ms. Joseph also observed the Respondent leave students unattended in the classroom. Ms. Strauss did not inform Ms. Joseph at the time that she would be out of the classroom on these occasions. In summary, from September, 1989 through April, 1990, Ms. Joseph, in effect, witnessed disorganized, disruptive and ineffective counselling performance from the Respondent. The Respondent had little control of her students and was unable to conduct an effective guidance lesson with either small groups or individuals.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the unrefuted evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Petitioner dismissing the Respondent from her employment with that agency. DONE AND ENTERED this 24th day of December, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 24th day of December, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4566 Petitioner's Proposed Findings of Fact: 1-116. Accepted. Respondent's Proposed Findings of Fact: 1-5. Accepted. Accepted, but not probative of the Respondent's position in this proceeding. Accepted, but not probative of the material issues presented for adjudication. Accepted. Accepted, but not probative of the material issues presented for adjudication. Accepted. Accepted, but not probative of the Respondent's position nor of the material issues presented in this proceeding. 12-14. Accepted, but not, standing alone, probative of any material issues presented for adjudication. Rejected, as immaterial. Accepted, but not in itself dispositive of any material issues presented. 17-22. Rejected, as not in accordance with the preponderant weight of the evidence. 23. Accepted, but not itself dispositive of any of the material issues presented. 24-25. Accepted. 26-27. Accepted, but not itself dispositive of any of the material issues presented. Accepted, but immaterial. Accepted. Accepted, in the sense that Ms. Harper never observed the Respondent actually performing her classroom duties. Accepted, in the sense that the "seals" program was available for use by the Respondent at the Respondent's option, not to the extent that the Respondent could use the program in any way she saw fit once she elected to use it. Rejected. The record, at page 161 of the Transcript, indicates that Ms. Harper met the Respondent two times in the 1989-90 school year, not in the 1988-89 school year. Accepted, as to no specific guidance curriculum being mandated by the Board, but rejected in the sense that the proposed finding states that "only suggestions" are provided to individual guidance employees. The record reflects that much more than suggestions are provided to help individual guidance employees perform their duties and become trained to perform their duties. Accepted, but not itself materially dispositive. Accepted, but not itself materially dispositive. Accepted. 37-38. Accepted. Accepted, but not materially dispositive. Accepted, but not materially dispositive. Accepted, but not materially dispositive and subordinate to the Hearing Officer's findings of fact. Accepted, but not as to its overall material import and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 44-45. Accepted, but not materially dispositive. COPIES FURNISHED: Dr. Larry Zenke Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 Betty Castor, Commissioner Department of Education The Capitol Tallahassee, FL 32399-0400 Cheryl R. Peek, Esq. Assistant Counsel Office of General Counsel 421 West Church Street Towncentre, Suite 715 Jacksonville, FL 32202 David A. Hertz, Esq. Duval Teachers United 1601 Atlantic Boulevard Jacksonville, FL 32216
The Issue The issue for consideration in this hearing is whether Respondent should be dismissed from employment as a non-instructional employee by the School Board of Lake County based on his arrest on February 26, 1989 for sexual battery on a child 12 years old.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Anthony Louis Young, was employed by the Lake County School District as a custodian at Rimes Elementary School. The School Board of Lake County is the agency responsible for the administration of public primary and secondary education in Lake County. Respondent had been employed as custodian at Rimes since 1983. This was a non-instructional position. In addition to his duties as custodian, he also had signed a vandal trailer contract under which he occupied, with his family, free of charge, a house trailer located on the school campus. The trailer and all utilities except telephone were furnished without charge to the Respondent. His obligation was to provide himself with a telephone and to make visual checks of the school buildings from time to time when school was not in session. Mr. Young did not receive any salary under the terms of the trailer contract. On February 13, 1989, Julia Young, Respondent's wife and mother by a different father of Nina Walker, age 12, discovered a pair of bloody underpants belonging to her daughter and became suspicious of the cause. She made an appointment with a doctor at the Public Health Service to have her daughter examined but did not keep it, nor did she provide any urine specimens from her daughter for testing. Finally, on or about February 26, 1989, she asked her daughter about the pants and in response was told, by Nina, that her stepfather, Respondent, had come into her room while Ms. Young was gone and had "messed" with her. Nina did not go into detail at this time, but as a result, that same day Ms. Young called the Sheriff's Office to report Respondent for alleged sexual battery on Nina. She had not discussed the matter with Respondent before making the call. When the Sheriff's Deputies came to her home, she told them the story that Nina had told her about the abuse which had allegedly taken place on a previous date. Ms. Young's report was made to Deputy Pallitto who, upon hearing the story, notified the representative from DHRS and then interviewed Nina. In her statement made to Pallitto, Nina told the following story: Respondent had picked her up at her grandmother's house on February 13, 1989 and taken her home. Instead of dropping her off as he usually did, he came inside, followed her into her room, and began touching her on her breasts and vagina. When Nina stated she would tell her mother, Respondent allegedly said he would tell her that Nina had used profanity. He then reportedly forced her onto the bed and told her to take off her clothes. He went into the living room and put some music on to play and then returned and undressed himself. He put what apparently was a condom on and told Nina to open her legs. He then attempted to insert his penis into her vagina and it hurt. As he was trying to do this, Nina's brother came in the back door and this caused Respondent to get off her and leave the room. Deputy Pallitto asked Nina to write out her statement, which she did. After completing her affidavit, she was taken to a doctor for a physical examination. Based on her oral statement, her affidavit which was consistent therewith, and the conclusion of the doctor that her physical condition was consistent with a penetration of her vagina by something, Respondent was arrested. During the period that Nina was waiting to see the doctor, she was again asked to tell her story and at this point, told much the same story as she had previously told, both orally and in writing. Several days later, on February 28, 1989, Deputy Pallitto was contacted by the Assistant State's Attorney who advised him that earlier that day Nina, along with her mother and grandmother, had come to his office and recanted her previous story. At Pallitto's request, she wrote out another affidavit which, in his opinion, was much more difficult for her to do than had been the original. In her second affidavit, Nina indicated she recanted because Respondent was not guilty of what she had alleged and she did not want to see an innocent man go to prison. In the second affidavit, Nina indicated her first story was a lie and claimed that when she attempted to tell the truth at first, she was pressured to make a statement implicating the Respondent. It was not indicated who "pressured" her. Ms. Williams arrived at Respondent's house trailer while Nina was writing out her original affidavit, and when she read it, found it to be consistent with what she had heard directly from Nina and from her mother. Ms. Williams took Nina to the doctor because she wanted Nina to have a vaginal exam as soon as possible to see if penetration could be determined. After the doctor indicated that Nina's condition was consistent with penetration by something, she took both Nina and Nina's brother and sheltered them for a month. At the end of that period, the boy was returned home, but Nina was sent to stay with an aunt in Ft. Lauderdale at the request of Ms. Young. This was done after Nina had recanted her original accusation, but according to Ms. Williams, this is not at all unusual. Ms. Williams also indicated that Ms. Young had seen love letter type notes written to Respondent by children from the school. These were not presented because, Ms. Young indicates, she tore them up and threw them away. Ms. Williams alleges that Ms. Young indicated in her initial interview that Nina was not the sort of child who would make up stories. In fact, Ms. Williams' investigation, and the testimony of Ms. Witter, one of Nina's teachers who is familiar with Nina's reputation at school, confirms this. At the hearing, however, both Ms. Young and Ms. Walker, the grandmother, indicated Nina is as likely to tell a lie as she is to tell the truth, and though she had not been in disciplinary difficulties at school before, she has been somewhat promiscuous on at least one occasion with a male cousin. The investigator from the Department of Health and Rehabilitative Services who, investigated this matter filed her report indicating the situation as a "confirmed" case of child abuse. Mr. Young was thereafter notified of this classification by letter and did not take any action to contest it. It is the policy of the School Board not to hire individuals who are charged with child abuse and placed in the abuse registry. Even if found innocent of sexual abuse on a minor, an individual would not be hired for a custodial position. Two weeks after Respondent was arrested, the State's Attorney decided not to prosecute and Respondent was released from jail. On the day of his release, a letter advising him that he had been suspended with pay pending a recommendation for disciplinary dismissal by the Board was delivered to him by Mr. Galbraith, the then Assistant Superintendent. This letter advised Respondent he was entitled to an informal conference after the Superintendent had conducted an investigation into the allegations. The investigation was conducted and Respondent requested an informal conference which was scheduled for March 23, 1989. However, before that conference could take place, the Board was advised of a decision of the 5th District Court Of Appeals which afforded Respondent a due process hearing under Chapter 120, Florida Statutes. Respondent was so advised and requested the formal hearing, and as a result, the dismissal action was held in abeyance pending the formal hearing. Before the formal hearing could be held, however, Respondent's one year contract with the Board expired and, though he had been rehired almost automatically every year since he started with the Board in 1983, on this occasion, because of the allegations against him, Mr. Wolf, the Principal at Rimes, declined to offer him a contract for the following year. At about the same time, the Board advised him to vacate the trailer he occupied on campus. Consequently, no disciplinary dismissal has ever been executed. Shortly after his release from jail in March, 1989, Mr. Young left the area and secured alternative employment in Orlando. He has never requested that he be reinstated after the charges against him were dropped. His sole contest of the Board's action is the request for hearing on the dismissal action. While working with the Board, Respondent was paid approximately $520.00 every two weeks. On or about April 1, 1989, he secured work with a firm in Orlando and has been making $6.25 an hour working 50 hours per week, with overtime for all hours over 40. Though Respondent previously claimed he did not want his job back, he now claims he does, but in light of his current income and the fact that he is currently working in an area away from the locus of the incident, it is found that his stated desire for reinstatement is not sincere. Once Respondent was arrested his principal, Mr. Wolf, recommended to the Board that he be dismissed. School Board Policy 4.06(1), dealing with non- instructional personnel, provides that a staff member may be discharged during his term of office for "good and sufficient reasons". Both Mr. Wolf and Mr. Galbraith advised Dr. Sanders that under the circumstances of this case, wherein an employee who deals on a regular basis with young children is arrested for an offense which, as here, involves allegations of sexual misconduct with a child, the interests of the children and the school system would be best served by his dismissal.
Recommendation Based on the foregoing Findings Of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Anthony Louis Young, be awarded back pay for the period from the date the charges against him were dismissed to the end of the 1988 - 1989 school year. RECOMMENDED this 4th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2620 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted in this case. FOR THE PETITIONER: None submitted FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 17. Accepted. Accepted and incorporated herein. Accepted. - 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. COPIES FURNISHED: Stephen W. Johnson, Esquire 100 West Main Street Leesburg, Florida Dr. Thomas E. Sanders, Superintendent The School Board of Lake County, Florida 34749 201 W. Burleigh Blvd. Tavares, Florida 32778 Harry L. Lamb, Jr., Esquire 312 West 1st Street, Suite 605 Sanford Florida 32771 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
Findings Of Fact The Petitioner, Patricia Ann Dewees (hereinafter "Dewees"), seeks to take the examination for licensure as a marriage and family therapist. In an effort to comply with the experience requirements which are prerequisites to eligibility to take the examination, Dewees applied for, and was accepted into, the post graduate program at the Samaritan Center in Fort Lauderdale, Florida. The Samaritan Center is a nationally and locally recognized non-profit corporation dedicated to the delivery of affordable mental and emotional health care to persons in need. Originally begun as a center in which highly trained clergy would provide psychotherapy and marriage and family counseling, the center is now non-sectarian. It hires only licensed or license eligible professional therapists. The Samaritan Center is one of 67 affiliates nationwide of the Samaritan Institute in Denver, Colorado. The center is dedicated to a holistic approach to therapy, including the balancing of physical, emotional, and spiritual elements of treatment. Dewees participated in a three year post-master's program at the Samaritan Center in Fort Lauderdale. Her participation in that program is the basis upon which she claims to have the necessary experience to take the licensure examination for marriage and family therapist. 2/ Regarding her experience at the Samaritan Center, Dewees has documented slightly more than 1500 hours of supervised experience during each of the three years. Dewees spent at least fifty percent of that time, and perhaps as much as sixty-seven percent of that time, engaged in attending classes, attending training sessions, attending workshops, and participating in activities directly related to classes, training sessions, and workshops. These activities do not constitute practice of the profession of marriage and family therapy. At best, they constitute preparation for the practice of that profession. During her participation in the program at the Samaritan Center, Dewees engaged in a number of other activities that did constitute practice of the profession of marriage and family therapy. These activities included such things as providing counseling and therapy to clients, as well as supervision of such counseling and therapy, preparation directly related to such counseling and therapy, and paperwork and administrative duties directly related to such counseling and therapy. These types of activities comprised no more than half of the supervised experience Dewees received at the Samaritan Center. During her participation in the program at the Samaritan Center, Dewees documented 550 hours of direct individual, group, or family counseling, including at least two of the following categories of cases: unmarried dyads, married couples, separating and divorcing couples, family groups including children. During her participation in the program at the Samaritan Center, Dewees received at least 156 contact hours of supervision, spread out more or less evenly over the three year period. This supervision was supervision of all of her experiences at the Samaritan Center, including the experiences that did not constitute practice of the profession of marriage and family therapy.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case concluding that the Petitioner, Patricia Ann Dewees, has not met the necessary experience requirements and denying her application to take the licensure examination for Marriage and Family Therapist. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 1st day of October, 1990. MICHAEL M. PARRISH, 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 1st day of October, 1990.
The Issue Whether the Petitioner is entitled to an exemption from disqualification from employment in a position as a “caregiver?”
Findings Of Fact The Sunland Center in Marianna, Florida is a residential facility operated by the Department of Children and Families (DCF), serving developmentally disabled adults. The Petitioner, Larry Wyatt, worked at Sunland Center as a Vocational Instructor II, supervising and training a group of developmentally disabled clients. After he got involved in the events which lead to his disqualification from such a position of special trust he was demoted, but is still employed at Sunland Center in a position where he does not have client contact. The Respondent is an Agency of the state of Florida charged, in pertinent part, with screening the criminal and adult abuse records of persons employed in positions of special trust, such as the supervision of a group of developmentally disabled clients. Upon learning of an altercation involving the arrest of the Petitioner for assault (domestic violence) the department disqualified him from employment in a position of special trust working with children or developmentally disabled clients under relevant law. On the evening of August 18, 1995, the Petitioner became embroiled in an argument with his wife. The Petitioner had in his possession a six-pack of beer and had consumed two cans of beer, leaving four unopened. At some point during the course of the argument Mrs. Wyatt attempted to leave their home and go to her mother’s home in her car. Mr. Wyatt remonstrated with her to try to get her not to leave and when she refused to stay he got into his vehicle and bumped her car slightly with his vehicle. He did not actually ram her car with any great degree of force, but merely slightly bumped her car at a very slow speed, with not enough force to cause any damage or injury. Both protagonists were angry and shouting at each other. No blows or physical touching occurred. In an angry state of mind, Mrs. Wyatt telephoned the Jackson County Sheriff’s Department who dispatched Deputy David Edmundson to the scene. On arriving at the scene, Deputy Edmundson spoke to Mrs. Wyatt, who asked him to stay with her until she left the premises or else to require Mr. Wyatt to leave. She specifically asked that he not be arrested. Mr. Wyatt began again yelling at Ms. Wyatt whereupon the Deputy told him to desist. He started yelling and arguing with the Deputy and the Deputy determined that it was best to place him under arrest and remove him from the scene. He placed him under arrest for “domestic violence” and “resisting arrest without violence.” He took the Petitioner to the Jackson County Jail. Several hours later Deputy Edmundson visited Mr. Wyatt in the holding cell at the jail. Mr. Wyatt then apologized to the Deputy for his conduct at the scene of the incident and the Deputy explained to Mr. Wyatt that, at that point, he was under an injunction and prohibited from returning to his home, unless the injunction was removed by the court. Mr. Wyatt then inquired if he could retrieve his belongings from his home and the Deputy explained he could make one trip home for that purpose but would need to be accompanied by a law enforcement officer and that he would need to make arrangements with the Jackson County Sheriff’s Department in order to do so. The following day, on August 19, 1995, Mr. Wyatt went to his home in the company of his father, without the assistance or accompaniment of a law enforcement officer and without making arrangements with the sheriff’s department for the trip. He committed no improper behavior when he arrived at home, retrieved his belongings and left. Upon the discovery by the authorities that he had made the trip without proper authorization the Petitioner was again placed under arrest. On August 21, 1995, he pled guilty to “domestic violence” (presumably assault), “resisting arrest without violence” and “violating an injunction.” As a result of that guilty plea he was disqualified from his employment as a Vocational Instructor II at Sunland Center. The court did not adjudicate him guilty. Rather adjudication was withheld and he was placed on probation with conditions. A condition of his probation was that he attend Alcoholics Anonymous meetings and that he and his wife attend marriage counseling sessions. Mr. and Ms. Wyatt attended the marriage counseling sessions for twenty-seven weeks. They both testified that the therapy was very helpful to them. They learned how to control their anger and how to resolve disputes without destructive argument. Mr. Wyatt attended Alcoholics Anonymous meetings as well and found them helpful. His unrefuted testimony indicates that as to the Alcoholics Anonymous therapy and the marriage counseling sessions that both efforts were helpful in helping him to understand the role his failure to control anger and use of alcohol combined to harm the stability of his marriage and his relations with his wife. In summary, both Mr. and Mrs. Wyatt testified in a believable way, without refutation, that their marriage had greatly improved as a result of the catharsis engendered by Mr. Wyatt’s arrest under the above-found circumstances and the resultant marriage counseling therapy and his attendance at Alcoholics Anonymous counseling sessions. They have observed that they do not argue as they once did, that their children seem to respect them more, and they get along better among themselves as well. Their family life is strengthened and more stable as a result of their experience. Leon Hussey, the Petitioner’s immediate supervisor at Sunland Center, Mr. Fears, his father-in-law and co-worker, and Tracy Clemmons, the Superintendent of Sunland, all testified to the effect that the Petitioner had been an exemplary employee with a flawless record for sixteen years. He was classified as an above average employee by his supervisor and the superintendent. They noted that he was particularly skilled at handling difficult clients at Sunland in his work as a vocational therapist and that clients felt respect and great affection for him. They have even asked on occasion when he would “be back” to occupy his old position in working with them. Tracy Clemmons and Leon Hussey both testified that the Petitioner was an excellent employee and his return they regarded as essential in order to adequately deal with difficult clients and that it would be “a shame” if he were not permitted to return to the duties he performed so well in dealing with the developmentally disabled clients in question. In summary, although the incident occurring between Mr. Wyatt and his wife may be classified as assault (“domestic violence”), he testified, as did she, without refutation, that he never struck her and that the car bumping incident in their yard was the result of his insufficiently controlled anger at her but, fortunately, was not of a nature to cause any injury to his wife or the other vehicle, and was not so intended. Under the totality of the circumstances, considering especially the efforts Mr. Wyatt has made, with his wife’s cooperation, to rehabilitate himself and to learn to control his anger and other impulsive behavior and the lack of any similar altercations since the one in question, it is found that the Petitioner has adequately rehabilitated himself in order to justify the grant of an exemption. This finding is corroborated and supported by the testimony of the witnesses from his employment life who uniformly described his exemplary record as a skilled, caring, compassionate trainer of the developmentally disabled persons in his charge. They desire his return to his former position immediately, even with knowledge of the circumstances of his recent disqualification. The testimony adduced by the department did not establish a lack of rehabilitation on the part of Mr. Wyatt. The testimony adduced by the Department at most can be characterized as a conclusory statement of position that, given the circumstances of the incident between Mr. Wyatt and his wife, a similar incident between them some two years previously, and another incident involving a driving violation concerning an expired tag, drivers license and “leaving the scene of an accident,” to which a guilty plea was entered, that Mr. Wyatt has not shown adequate rehabilitation. That testimony is rejected as not being as substantial as that in support of the above findings of fact establishing the Petitioner’s adequate rehabilitation. No adverse incidents have occurred since the one causing this proceeding. The testimony of the Petitioner’s wife and the other witnesses is accepted over that of the Department’s witness, Ms. Hanson. They had more opportunity to observe the Petitioner’s personality and behavior since the incident in question and more of an opportunity to learn of his reputation in the community for behavior since the incident, which is consistent with his rehabilitation, which their testimony establishes, when considered in its totality with the other circumstances proved in this case.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties it is therefore, RECOMMENDED that a final order be entered awarding Larry Wyatt, the Petitioner herein, the requested exemption.DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997. COPIES FURNISHED: Thayer Marts, Esquire Post Office Box 761 Marianna, Florida 32447 John R. Perry, Esquire Department of Children and Families 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
