The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues are whether Respondent is guilty of committing gross immorality or an act involving moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes; failing to make reasonable effort to protect students from conditions harmful to learning or students' mental health, physical health, or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a); or intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e). If so, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent holds Florida educator certificate 125057, which covers Elementary Education and English to Speakers of Other Language (ESOL). The certificate is valid through June 30, 2004. Respondent was first certified in 1961, at which time she began her teaching career. Respondent has taught full-time at North Twin Lakes Elementary School since August 1983. Prior to her employment at North Twin Lakes Elementary School, Respondent had been employed by the Miami-Dade School District for six or seven years. Six or seven years ago, Anne Louise Harms became principal of North Twin Lakes Elementary School. Ms. Harms has been employed by the Miami-Dade School District for 30 years. Not long after Ms. Harms became principal of North Twin Lakes Elementary School, Respondent felt that their relationship had become strained, perhaps over Respondent's intercession on behalf of another teacher. In March 2000, Ms. Harms placed Respondent on prescription for a failure regarding professional responsibilities that is unspecified in the present record. In the summer of 2000, Respondent took a leave of absence, at least partly to care for an ill family member. Respondent's first day back to school following her leave of absence was January 29, 2001. She was assigned to teach an ESOL class in a portable. Respondent's classroom was one of four classrooms occupying the portable. The pod-type arrangement provided Respondent's classroom with little privacy. An adult on a chair could easily see over the dividers that separated the four classrooms; obviously, persons within one classroom could hear what was said in the other classrooms. Every time they entered or left the portable, the students and teacher in at least one of the other classrooms used one of the exterior doors that connected to Respondent's classroom. The portable had no windows in the area of Respondent's class, so she kept the doors closed to assure that the area remained cooled or heated, as well as due to concerns about security and the distraction posed by noise outside of the portable. A couple of days after Respondent's return to the classroom, the principal appeared in her room. The principal testified that she had heard Respondent yelling in her classroom, so the principal checked the classroom to see what was happening. The principal testified that Respondent's door was open. However, this testimony is discredited based on the testimony of Respondent and other teachers concerning their practice of keeping the door closed. Clearly, Respondent could not have been yelling without disturbing teachers in the portable, but Petitioner did not produce other witnesses to testify that Respondent was yelling. The principal testified that she saw Respondent grasp a student's shoulder and temple and then push his head into a book that was open in front of him. The principal testified that she removed the child in question, although she left Respondent in charge of the remainder of the class. Although the principal admitted that she did not see any physical injury on the child, who reported that he was okay, the principal contacted the regional Office of Professional Standards. This testimony, too, is discredited for several reasons. First, the child does not corroborate the principal's testimony. Although the child gave a very brief statement, in Spanish, indicating that Respondent had pushed his head into a book, the child testified at the hearing that he could not recall Respondent doing so. Second, Respondent could not reasonably have expected that she could yell at a child and then push his head into a book without being heard and possibly seen by another nearby teacher occupying the same portable. As noted above, Respondent had no privacy in her classroom. Third, the principal left Respondent with the remaining students on the day of the incident and for the rest of the school year. It would seem, especially on the day of the incident, that a principal who had witnessed a teacher physically abuse a student would not merely remove the child to her office to commence an investigation into the teacher. In such a situation, the principal's first responsibility would be, of course, to protect the other students from similar physical abuse by either having the teacher removed from the classroom and building or, if necessary, removing the students from the classroom. Subsequently, the Miami-Dade School District removed Respondent from the classroom due to fitness-to-work issues unrelated to the matters raised in this case. Based on the testimony and demeanor of some, but not all, of the teacher witnesses, including Respondent, some, but not all, of the more senior teachers, including Respondent, posed serious personnel- management issues for the principal. Most likely, the principal tried to take a short-cut to solving one of her personnel- management problems--i.e., Respondent--by exaggerating the significance of what may have been a relatively minor classroom confrontation between Respondent and one of her students. In any event, the record fails to show by clear and convincing evidence that Respondent mistreated the child, as alleged by Petitioner.
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Director Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Anthony D. Demma Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of June, 2010.
The Issue Whether Respondent violated sections 1012.795(1)(g), and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(c)1.,1 as alleged in the Administrative Complaint and, if so, the appropriate penalty. 1 Unless otherwise noted, all citations to the Florida Statutes and the Florida Administrative Code are to the 2017 versions in effect at the time of the alleged violations.
Findings Of Fact Respondent holds Florida Educator’s Certificate 784361, covering the areas of Educational Leadership, Emotionally Handicapped, English for Speakers of Other Languages (ESOL), Physical Education, School Principal, and Specific Learning Disabilities, which is valid through June 30, 2021. Since 2001, Respondent has held a number of positions with Citrus County Schools, including positions as an ESE teacher, dean of students, assistant principal, and principal. At the time of the hearing, Respondent was working as an ESE teacher at Citrus Springs Middle School. During the time period pertinent to the allegations in the Administrative Complaint (the 2016-2017 school year), Respondent was employed as an assistant principal at Crystal River Middle in Citrus County Schools. Respondent began as an assistant principal at Crystal River Middle in 2015. At Crystal River Middle, Respondent worked closely with the ESE department, the ESE teachers, aides, paraprofessionals, and Cori Boney, who was the ESE specialist for Crystal River Middle. Ms. Boney had worked throughout Citrus County in a number of ESE- related positions before starting at Crystal River Middle in 2011 or 2012 as the ESE specialist. As the ESE specialist, Ms. Boney was responsible for preparing the individual education plan (IEP) paperwork for ESE students, mentoring the ESE teachers, preparing schedules for the ESE paraprofessionals, and working with the families of ESE students. According to Respondent, Ms. Boney was the “go-to” person to find out whether the proper educational and behavioral strategies were being appropriately carried out for ESE students in accordance with their IEPs. Respondent described Ms. Boney as “a guru professionalist, the know-it-all, that tells us when these things [IEP requirements] are happening and when they’re not.” Ms. Boney was considered part of the administrative team. Respondent did not supervise Ms. Boney. At the beginning of the 2016- 2017 schoolyear, administrators were provided a list of employees they supervised and evaluated. On that list, the principal of Crystal River Middle, Inge Frederick, was listed as Ms. Boney’s supervisor. Respondent never evaluated Ms. Boney’s performance, did not provide input on her evaluations, and did not collaborate with the principal on Ms. Boney’s evaluations. Respondent had no authority to discipline Ms. Boney and was not responsible for recommending whether Ms. Boney’s employment contract should be renewed each year. 2 In 2016, Respondent’s relationship with Ms. Boney became more than just a professional relationship. In May 2016, Respondent had double knee surgery. Ms. Boney called him and asked how he was doing. During school administrative meetings held in the early part of the 2016-2017 school year, the subjects of conversation between Respondent and Ms. Boney, as well as other school administrators and staff, would stray away from the business of education to television shows and other casual conversations that were not related to the business of education. Afterwards, Respondent and Ms. Boney would sometimes exchange text messages regarding TV shows. In some of those text messages Ms. Boney would give her opinion as to whether certain actors were handsome, and comment on other non-education related subjects. Over time, the texting and conversations between Respondent and Ms. Boney became more personal, involving subjects regarding Ms. Boney’s former husband, the people she was dating, and clothing she would wear. Respondent also gave Ms. Boney advice regarding her son, who was having trouble at school. Respondent talked to Ms. Boney’s son about how to make better decisions and, at least once, at Ms. Boney’s request, stopped by Ms. Boney’s house to talk to her son. 2 Section 1012.34(3)(c) provides in pertinent part, “The individual responsible for supervising the employee must evaluate the employee’s performance.” Having become somewhat familiar, on one occasion, Respondent told Ms. Boney while they were at school that he knew “her secret.” When he explained to her that he meant he could see her underwear under her clothing, she was embarrassed. But it did not cause an argument or disagreement between them. Respondent and Ms. Boney’s relationship became intimate in the fall of 2016. At the time, Ms. Boney was in a relationship with someone else and Respondent was married. In September 2016, Respondent stopped by Ms. Boney’s house, and while there, he gave her a kiss. It surprised Ms. Boney, but she did not protest. Later, after initially resisting suggestions from Respondent that they should lay together and that nothing would happen, Ms. Boney finally gave in. Contrary to Respondent’s suggestions that nothing would happen, they ended up having sex. After that, Respondent and Ms. Boney met and engaged in sexual intercourse on a number of occasions. Traveling in separate cars, they spent the night together at a motel in Tallahassee on November 23, 2016, and again during the weekend of April 7 through 9, 2017. They also met for two afternoons at a Quality Inn in Crystal River. On another occasion, they met at Respondent’s house. On Valentine’s Day, February 14, 2017, Respondent gave Ms. Boney a tanzanite bracelet. Their affair lasted until sometime in April 2017, when Ms. Boney decided to end it. Their relationship was consensual. While Ms. Boney testified that Respondent was resistant to Ms. Boney’s decision to end the affair and thwarted her attempts to limit contact with him, that testimony, in light of their continued relationship, is unpersuasive. Moreover, the evidence does not show that Respondent used his position as an assistant principal to either begin the affair or resist its end. Ms. Boney and Respondent continued to be friends after the affair. Ms. Boney sought a job in Marion County because she wanted a leadership position. Her application for the position in May 2017 lists Respondent as a reference. In approximately July 2017, Ms. Boney was hired for a new administrative position in Marion County as an ESE coordinator. Around the same time, Respondent was promoted to assistant principal at Crystal River High. Ms. Boney continued her friendship with Respondent. In July 2017, she stopped by Respondent’s office at Crystal River High and brought Respondent a gift. She visited him on more than one occasion at Crystal River High that year. When, in August 2017, Ms. Boney decided to move to Marion County, she asked Respondent for his assistance and Respondent helped her pack for the move. Throughout the 2017-2018 school year, Respondent and Ms. Boney remained friends and exchanged e-mails. On August 24, 2018, Ms. Boney sent a message to Respondent that said, “You can call my office anytime.” Less than 30 days later, in September 2018, Ms. Boney’s boyfriend, Josheau Fairchild, used an application on Ms. Boney’s cell phone and extracted text messages exchanged between Ms. Boney and Respondent evidencing their affair during the 2016-2017 school year. Mr. Fairchild angrily confronted Ms. Boney and demanded that she explain the relationship. When confronted, and at the final hearing, Ms. Boney portrayed her relationship with Respondent in a light most favorable to her. Although admitting her relationship with Respondent was consensual, she portrayed herself as always being uncomfortable with the relationship and trying to end it. Specifically, Ms. Boney testified that she repeatedly tried to stop the relationship, blocked Respondent on her cell phone, and texted Respondent to stop texting her. Ms. Boney further testified that she left Citrus County Schools for a position with the Marion County School District because Respondent made her feel alienated from other staff. Ms. Boney’s testimony in that regard is not credible and inconsistent with evidence clearly showing that Respondent and Ms. Boney had a friendly and cordial relationship before Mr. Fairchild extracted the text messages in question. Those text messages demonstrate that the relationship between Respondent and Ms. Boney was mutual and consensual. They provide no evidence that Ms. Boney was uncomfortable with their relationship or attempted to block off communications with Respondent prior to Mr. Fairchild’s discovery of the text messages. Notably, it was Ms. Boney’s boyfriend, Mr. Fairchild, who, after discovering the text messages, first contacted Citrus County School’s human resources department to complain about Respondent. At the time, Ms. Boney was no longer working for Citrus County Schools and her affair with Respondent had ended well over a year before the complaint. Although the evidence clearly showed that Respondent and Ms. Boney had an affair, it was insufficient to show that Respondent’s past relationship with Ms. Boney during the 2016-2017 school year reduced his effectiveness or ability to perform his duties. Rather, the evidence demonstrated that Respondent satisfactorily performed all of his job duties during the 2016-2017 school year. Both Respondent and Ms. Boney received final summative performance ratings of “Effective” and “Highly Effective,” respectively. The following year, Respondent was promoted to the position of assistant principal at Crystal River High for the 2017-2018 school year. Respondent received an “Effective” final summative performance evaluation for the 2017-2018 school year. Subsequently, Respondent was promoted to the position of principal at Crystal River Middle, the position he held when Ms. Boney’s boyfriend extracted the subject texts in the fall of 2018, which revealed Ms. Boney’s affair with Respondent that had ended over a year before. In addition to the allegation of the affair itself, the Administrative Complaint alleges, “When questioned about the incident, Respondent first admitted to the sexual relationship with the teacher. During the same interview, Respondent lied, and denied having a sexual relationship with the teacher.” Respondent was first questioned by the school district regarding his affair with Ms. Boney during a meeting held at the school district’s office on October 5, 2018, between Respondent, Suzanne Swain, and Brendan Bonomo. Respondent believed the meeting was going to be about an unrelated matter. Ms. Swain instead advised Respondent that complaints had been filed against him by both Joshua Fairchild and Cori Boney. At the time, not believing he would need representation, Respondent waived his right to representation. When told of Ms. Boney’s accusations at the onset of the meeting, Respondent became angry and hurt. He thought about the injustice of Ms. Boney’s allegations and how hard he had worked to obtain his position as a principal. He was upset and “not with it,” during the meeting. The evidence is unclear whether, during that meeting on October 5, 2018, Respondent was provided with the text messages that Ms. Boney’s boyfriend had extracted. According to Respondent, during that meeting, he admitted sending text messages to Ms. Boney of a sexual nature, but denied having sexual intercourse with her. In contrast, according to the testimonies and written statements signed by both Ms. Swain and Mr. Bonomo, Respondent first admitted and then denied having a sexual relationship with Ms. Boney. The interview was not recorded. At that October 5, 2018, meeting, Mr. Bonomo typed up a statement for Respondent stating: During the time that Cori Boney was under my supervision there was no sexual intercourse but there were inappropriate text messages. Respondent signed the typed statement under an acknowledgement stating that “I find the above statement to be true and correct. I certify that I have read it or it has been read to me.” Both Ms. Swain and Mr. Bonomo signed the typed statement as witnesses. On November 2, 2018, Respondent attended another meeting with Ms. Swain and Mr. Bonomo during which Respondent was given an opportunity to respond to evidence gathered during the school district’s investigation. At that meeting, Respondent was allowed to review the text messages extracted from Ms. Boney’s phone. The school district’s attorney, Tom Gonzalez, was also at the meeting. During the meeting, Respondent denied having a sexual relationship with Ms. Boney, denied giving her a tanzanite bracelet, and denied meeting her at hotels. Respondent reiterated these denials during his testimony at the final hearing. Then, at a later meeting with Ms. Swain and Mr. Bonomo held on November 14, 2018, Respondent was told that his employment as principal of Crystal River Middle was going to be terminated. To that, Respondent said something to the effect of, “After 20 years that’s it, I’m done?” Ms. Swain responded by asking Respondent whether he was requesting a position. When Respondent said yes, Ms. Swain left the room. When Ms. Swain returned, she told Respondent that he would be able to secure a position with Citrus County Schools if he drafted a written admission statement. Ms. Swain influenced the content of Respondent’s statement. She told Respondent that the statement would have to say that he had an inappropriate sexual relationship with Ms. Boney while he supervised Ms. Boney at Crystal River Middle. Respondent dictated a statement to Mr. Bonomo and Mr. Bonomo typed the statement for Respondent to sign. The statement, which was dated and signed by Respondent on November 14, 2018, states: Ms. Himmel and the Executive Team, I am formally requesting an instructional position with Citrus County Schools. I acknowledge that I had an inappropriate relationship with Cori Boney during the time she was an ESE Specialist at Crystal River Middle School while I was the Assistant Principal at Crystal River Middle School and I supervised Ms. Boney. I am remorseful for my actions and I want to extend my heartfelt apologies to Mrs. Himmel and the entire Crystal River Community. I appreciate Mrs. Himmel consideration with this request. Sincerely, /s/ Charles Brooks, Jr. After submitting his written statement, Respondent was offered, and he accepted, a position as an ESE teacher at Citrus Springs Middle. Respondent received an “Effective” final summative performance evaluation for his position as an ESE teacher for the 2018-2019 school year. Despite the fact that Respondent, in essence, was demoted from his position as a school principal to a classroom teacher, the Commissioner seeks a two-year suspension of Respondent’s educator’s certificate. A two-year suspension would result in Respondent’s loss of his current position and cause him significant hardship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that Respondent did not violate section 1012.795(1)(g), Florida Statutes, and dismissing the allegations of the Administrative Complaint in that regard, and further finding that Respondent violated section 1012.795(1)(j), Florida Statutes, by failing to maintain honesty in all professional dealings as required by Florida Administrative Code Rule 6A-10.081(2)(c), but not imposing any further discipline against Respondent or his educator’s certificate, other than the demotion he has already received from the Citrus County School District. DONE AND ENTERED this 20th day of October, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Lisa Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact The Respondent Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home. Improper Sexual Remarks or Sexual Advances Toward Female Students Count I: Advances toward T. E. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing. He unlocked the door, turned on the lights, and they went in. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E., T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/ Count II: Improper Sexual Remarks to C. D. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33) Count III: Sexual Advances toward C. C. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss. Count IV: Improper Sexual Remarks to C. S. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56) Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request. Conflicts Resolved Against Respondent Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify. Reduced Effectiveness The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation. DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of August 1984.
The Issue The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Based upon the facts stipulated by the parties, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1 Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is 3971 Wheaton Court, Fort Myers, Florida 33905. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2 On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits. DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of May, 2006.
The Issue Whether just cause exists for Petitioner to suspend Respondent for 10 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a kindergarten teacher at Park Lakes Elementary School (“Park Lakes”), a public school in Broward County, Florida. The proposed discipline is based upon conduct occurring on Thursday, May 15, 2014, during the 2013-2014 school year. During the 2013-2014 school year, Kerlaine Louis was a paraprofessional assigned to Respondent’s class. On May 15, 2014, Respondent and Ms. Louis took thirteen of Respondent’s kindergarten students to the City of Lauderhill Mullins Park Pool Facility (“pool facility”) to participate in a water-safety class.1/ To get to the pool facility on May 15, 2014, Respondent, Ms. Louis, and the thirteen students rode together on a standard Broward County school bus. The bus picked up Respondent, Ms. Louis, and the thirteen students from Park Lakes at approximately 11:00 a.m. Respondent and Ms. Louis loaded the students onto the school bus at that time. Approximately 10-15 minutes later, the bus arrived at the pool facility with all of the thirteen students present. The bus drove directly from the school to the pool facility, and dropped Respondent, Ms. Louis, and the thirteen students off in front of the building where the pool facility is located. The pool is located behind the building. The thirteen students were scheduled to start their water-safety class at 11:30 a.m. The class was scheduled to end at 12:00 p.m. However, due to bad weather, the class was canceled. Respondent learned of the cancellation of the class after arriving at the pool and exiting the school bus with the children. Because the class was canceled, Respondent, Ms. Louis, and the thirteen students gathered in the patio area located in the back of the pool facility (behind the building and near the pool), where they waited under a covered patio area for the school bus to return to pick them up and bring them back to the school. Respondent brought some paperwork with her to work on at the pool facility. While waiting on the bus to return, the students interacted with each other. During this time, Ms. Louis spent most of her time pre-occupied with an exceptional student in the class who is autistic.2/ No lifeguards were on duty or in close proximity to the students and nobody was in the pool. While waiting for the bus to return to the pool facility, Respondent left the patio area and went inside the building. Respondent returned to the patio area in the back of the pool facility after being gone approximately five minutes. As she returned to the patio area, Respondent saw the bus coming around the front of the building. The bus returned to the pool facility at approximately 12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen students. Respondent gathered the children to walk them to the area where they would board the bus. Because it was raining, Respondent, Ms. Louis, and many of the children quickly boarded the bus. Shortly thereafter, the bus departed for the return trip to Park Lakes. However, by the time the school bus returned to the school at approximately 12:30 p.m., only Respondent, Ms. Louis, and eleven of Respondent’s students were on the bus. Two of Respondent’s students were left behind at the pool facility, unsupervised after Respondent and Ms. Louis left the pool facility without checking to see that all of the students were accounted for. Respondent did not realize that two of her students had been left behind at the pool facility until sometime after returning with the other students to her classroom at Park Lakes.3/ The two students that were left behind at the pool facility had gone to the bathroom. The bathroom is located along an exterior corridor of the building. Taking attendance and conducting a “head-count” of kindergarten students is an essential duty of a kindergarten teacher. Taking attendance and conducting a “head-count” of kindergarten students is required of all kindergarten teachers at Park Lakes at every transition point during a field-trip. A transition point occurs whenever there is movement of the children. Taking attendance and conducting a “head-count” of Respondents’ students who were participating in the water-safety class at every transition point was necessary to insure that all of Respondents’ students who were participating were accounted for and remained safe. The responsibility for that task fell on Respondent. Respondent was expected to take attendance and conduct a “head-count” of the students taking the water-safety class as they were leaving the classroom; as they were exiting the school; as they were boarding the bus; and while they were in route to the pool facility. Respondent was also expected to take attendance and conduct a “head-count” of the students taking the water-safety class when they exited the pool facility; as they boarded the bus to return to the school; while they were on the bus in route back to the school; and upon the students’ return to the school after departing the bus. At hearing, Respondent acknowledged that she failed to take attendance or conduct a “head-count” of her students prior to boarding the bus at the pool facility to return to the school. Furthermore, Respondent acknowledged at hearing that she failed to take attendance or conduct a “head-count” of her students while on the bus during the return trip to the school, or at the school after returning to the school. At hearing, Respondent conceded that she “dropped the ball” by failing to take attendance and conduct a “head-count” of her students before getting on the bus at the pool to return to the school, on the bus during the return trip to the school, and when she returned to the school. Had Respondent taken attendance and a “head-count” of her students while at the pool facility just prior to boarding the bus to return to the school, or while on the bus before leaving the pool facility, she would have discovered that two of the students were missing, and the children would not have been left behind at the pool facility. Respondent was visibly upset and remorseful of her conduct at the hearing. Within five minutes after the school bus departed to return to the school, April Nixon, a lifeguard at the pool facility who was inside the building, encountered the two children standing in an interior hallway of the pool facility. Ms. Nixon immediately called Park Lakes to report that the two students had been left behind; she locked all of the doors, and she remained with the students from the point she discovered them until two Park Lakes employees came to pick them up at approximately 1:25 p.m., and return them to the school. Significantly, for several minutes after the bus departed to return to the school, the two students were unsupervised, and their physical health and safety were in jeopardy. They could have easily wandered into the pool and drowned; walked further outside of the facility where they could have been kidnapped; or walked into a large lake, which is located very close to the perimeter of the pool facility-- accessible through a short walk through an unlocked door. Respondent failed to make reasonable effort to protect the two students from conditions harmful to their physical health and safety by failing to take attendance and conduct a “head- count” of the students in her class on multiple occasions on May 15, 2014, including: 1) when the students exited the pool facility to return to the bus; 2) as they boarded the bus at the pool facility to return to the school; 3) while they were on the bus in route back to the school; and 4) upon the students’ return to the school after departing the bus. Respondent’s conduct on May 15, 2014, also demonstrates incompetency due to inefficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent without pay for 10 days. DONE AND ENTERED this 8th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2015.
The Issue Whether Respondent’s conduct on February 17, 2006, on the Lake Gibson Middle School campus constitutes misconduct in office, failure to protect a student from conditions harmful to learning, and/or intentionally exposing a student to unnecessary embarrassment or disparagement and whether there is just cause for termination/discipline. Whether Respondent's prior acts of misconduct, which resulted in discipline, constitute moral turpitude and child endangerment, such that they may be considered just cause for termination.
Findings Of Fact Petitioner is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Sarasota County School District. Gail F. McKinzie is the Superintendent of Public Schools for the Sarasota County, Florida, School District. Respondent has been employed by Petitioner as a teacher of science and social studies since 1982, and holds a professional services contract. Since the beginning of the 2005- 2006 school year, Respondent has been working as a teacher at Lake Gibson Middle School. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of the CBA between the School Board and the Polk Educational Association, Inc., for the period July 1, 2005, through June 30, 2007. The applicable collective bargaining agreement requires progressive discipline as a predicate to termination for a teacher holding a professional services contract. In the recommendation for termination, the Superintendent sent Respondent a letter on May 1, 2006, which alleged in pertinent part: At various times during your employment with the Polk County School Board, you have engaged in conduct which we deem to constitute moral turpitude and child endangerment. As our investigation reports, the most recent incident involves your licking your hand and attempting to force a student to shake hands with you in the presence of the student's parent. The letter further advised Respondent that the Superintendent would recommend to the School Board that he be terminated. The incident leading to the recommendation for termination occurred on February 9, 2006. A.H. is a student in Respondent's class at Lake Gibson Middle School. Respondent attended a meeting after school with the student and the student’s mother. The purpose of the meeting was to discuss a way for A.H. to do projects for extra credit to improve her grade in Respondent's class. The meeting was pleasant and went well. However, at the end of the meeting, the mother shook hands with Respondent, and directed A.H. to shake Respondent's hand as well. A.H. resisted shaking Respondent's hand and stated that she was sure that Respondent would do something unpleasant to her before he shook her hand. A.H. continued to resist, but her mother insisted that she shake hands with Respondent. As Respondent went to shake A.H.'s hand, he simulated licking his own hand before he shook hands with A.H. She pulled her hand back. Respondent held her wrist with his other hand and shook it with his right hand. A.H. and her mother were certain that Respondent had actually licked his hand before he shook hands with A.H. Whether or not Respondent actually licked his hand or only simulated it, Respondent’s action was completely inappropriate and unprofessional. A.H. and her mother were reasonably repulsed by Respondent's actions and became upset. Respondent's conduct was reported to the principal of the school, and an investigation was initiated. Respondent is a large man with a deep, booming voice. He has an intimidating presence, especially with children. To offset that impression, Respondent tries to use humor to make his students more comfortable with him. One method he has used previously, in class, is to simulate licking his hand before he shakes hands with a student. He behaves in ways that some students find funny, and others do not. A. H. agrees that Respondent tries to bring humor into his classroom. She has seen Respondent seemingly lick his hand before, but she is not certain whether he actually licks his hand or just pretends to lick it. She acknowledged, however, Respondent does try to create a fun atmosphere in the classroom. After Respondent learned that A.H. and her mother were upset about the incident he asked the principal if he should call the mother to explain and apologize. The principal directed him not to pursue the matter. Respondent firmly believes that the hand-licking incident was not an attempt to embarrass A.H., and that it caused no harm. Respondent believes that his conduct was nothing more than an unappreciated attempt at humor. Respondent apparently does not comprehend when his attempts at humor are inappropriate and unprofessional. Regardless of the fact that Respondent thought that his prank was harmless, Respondent's conduct on February 9, 2006, was unprofessional, a cause for embarrassment of the student, A.H., and impaired his effectiveness as a teacher. In the area of prior discipline, only two incidents, both of which occurred within the last three years, will be considered for the purpose of determining if just cause exists for termination. On January 28, 2004, Respondent received a five-day suspension for telling a student to "Get your ass out of my class." Respondent stated that the student was out of control, jumping across desks, disrupting the classroom, and that Respondent could not get him under control. Respondent candidly acknowledged that he did tell the student to leave the classroom, using the words quoted above. He acknowledged that he had made a mistake and did not contest the discipline. On May 23, 2003, Respondent received a written reprimand for using poor judgment in supervising students on a field trip. Allegedly, a boy made inappropriate advances toward a female student. Respondent advised the principal and the school resource officer that he had not witnessed inappropriate actions on the part of the boy. However, Respondent allowed the mother of one of the students to question and take written statements about the incident from his students. This violated school procedure. The discipline regarding this incident was not grieved. Petitioner offered evidence relating to 16 events that occurred between 1983 and 2003, involving formal letters of concern, written reprimands, suspensions, and teacher quality performance observations. After examination of each of the exhibits offered by Petitioner, it is determined that none of the reported incidents constitute acts of moral turpitude and/or child endangerment. Therefore, under the provisions of Section 4.5-1 of the CBA, they cannot be used against a teacher for the purpose of imposing discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board enter a final order: Finding Respondent guilty of violating the Principles of Professional Conduct by subjecting a student to unnecessary embarrassment. Finding Respondent not guilty of conduct that would be just cause for termination. Suspending Respondent for five days without pay. DONE AND ENTERED this 18th day of December, 2006, at Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 18th of day December, 2006. COPIES FURNISHED: Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Gail F. McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 32830 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19, North, Suite 110 Clearwater, Florida 32761 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since January 19, 1999. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, and is covered by the collective bargaining agreement between the School Board and TALC. Respondent is certified in the area of Physical Education, Grades K through 12. From the time of his hiring until the fall of 2004, Respondent was a physical education ("PE") teacher at the elementary and high school levels. In the fall of 2003, Respondent applied and was hired for a position as an adaptive PE teacher. An adaptive PE teacher works exclusively with Exceptional Student Education ("ESE") students, generally those who have physical disabilities or are developmentally delayed. This adaptive PE teacher position was itinerant. Respondent drove a circuit of several schools, teaching one or two classes at each, including Mirror Lakes. Prior to the 2003-2004 school year, Respondent had never taught at Mirror Lakes. During the 2003-2004 school year, Respondent drove to the various schools in his personal car, a blue Nissan Altima. Respondent commenced his duties as an adaptive PE teacher during the second quarter of the 2003-2004 school year, either in October or November 2003. He came to Mirror Lakes an average of once a week1 for two consecutive class periods. Respondent would arrive at the school between 8:30 a.m. and 9:00 a.m. He would park his car in the visitor's parking lot at the front of the school. Respondent would enter the school office just inside the main entrance, sign in, and walk to the classroom to meet his first class of students. With the classroom teacher and the teacher's aides,2 Respondent would accompany the class outside to the PE field, where he would provide instruction to the ESE students. Following completion of the first period, Respondent would accompany the students back to their classroom, in the company of their classroom teacher and the teacher's aides. Respondent would then go to the adjacent classroom, taught by ESE teacher Gail Joyal. Ms. Joyal, her two aides, and Respondent would walk the class of 14-to-16 ESE students through the hallway to the art and music rooms. Half of the class would stay for art or music, and the other half would walk outside to the PE field under the supervision of Ms. Joyal, her aides, and Respondent. At the PE field, Ms. Joyal's class joined approximately 50 students from other classes for instruction by PE teacher Robert Bates and his two aides. Ms. Joyal would return to her classroom, but her two aides would remain on the PE field to supervise the class. Thus, there would be at least six adults on the PE field with the students: Mr. Bates and his two aides, Ms. Joyal's two aides, and Respondent. The PE field was about the size of a football field and was surrounded by a chain link fence. The field could be accessed through the school, as was done by the children going in and out for PE class, or via an outside gate. The outside gate was plainly visible from Mr. Bates' office and from the PE pavilion where the students gathered at the beginning and end of PE class. At the beginning of PE class, the students would take their assigned spaces in the covered PE pavilion. Mr. Bates would lead the entire class in ten to 15 minutes of calisthenics. He would then explain the day's planned activity to the class. Once the activity began, Respondent would work with the ESE students from Ms. Joyal's class. Among these students was J.P., a seven-year-old boy classified as educable mentally handicapped, with speech and language impairments. J.P. functions at the approximate level of a three-year-old. Respondent taught J.P. and the other ambulatory students as a group. The only student with whom Respondent worked one-on-one was wheelchair-bound. The PE class lasted 45 minutes. Near the end of class, Mr. Bates would reassemble the students in their assigned spaces under the PE pavilion. Ms. Joyal's aides would take a head count of their students. Ms. Joyal would rejoin the class. Once Mr. Bates dismissed the class, Ms. Joyal and her aides would accompany the children back to their classroom. Respondent would walk with the class as far as the entrance to the school hallway, then would walk to the front office to sign out and move on to his next assigned school. Kelly Bach, J.P.'s mother, testified that during the middle of the 2003-2004 school year, J.P. began telling her about someone at school named "Mr. Bob." J.P. told Ms. Bach that he had kissed Mr. Bob, which caused Ms. Bach no alarm because J.P. "kisses everybody." J.P. also mentioned something about "marrying Mr. Bob." Ms. Bach thought Mr. Bob might be another student at Mirror Lakes. Out of curiosity, she asked J.P.'s teacher, Ms. Joyal, if there was someone at the school called Mr. Bob. Ms. Joyal told Ms. Bach that "Mr. Bob" was the students' name for Respondent. This fact was confirmed at the hearing by Respondent. Ms. Bach testified that two or three months passed with J.P. making no mention of Mr. Bob. Then, one evening in late May 2004, J.P. told her that he had ridden in Mr. Bob's car.3 Ms. Bach questioned J.P. further, but he was reluctant to say more. J.P. told Ms. Bach that "Mr. Bob is going to be mad at me, and Daddy is going to be mad at me, and Daddy is going to give me a spanking."4 After Ms. Bach assured J.P. that no one was going to hurt him, J.P. told her a disjointed story about being taken away from school, having his pants removed, being handcuffed, and having his "butt" touched by a person variously identified as "Mr. Bob," "Big Bird," and "Christmas tree." J.P. told his mother that "Brian" was supposed to save him but didn't. "Brian" is the lead character in the film "The Fast and The Furious," which J.P. watched repeatedly at home. Ms. Bach held J.P. out of school on May 27, 2004, and took him to the emergency room of Lehigh Regional Medical Center to be examined for a suspected sexual battery. The hospital referred her to the Children's Advocacy Center of Southwest Florida. The Lee County Sheriff's Office was also contacted because of the nature of the allegations, and the Lee County CPT became involved. Lee County Sheriff's Office Deputy Kim Swanson responded to the hospital and interviewed Ms. Bach. Deputy Swanson filed an incident report recounting the interview with Ms. Bach. Deputy Swanson did not interview J.P. The relevant portions of Deputy Swanson's report stated: Ms. Bach advised that the victim described being brought by Mr. Bob during his physical therapy session on 5/26/04[5] to a white car parked at the school. The victim stated to his mother that the car was dark inside and he couldn't see outside. Victim stated there was country music playing in the car. The victim told his mother that Mr. Bob took off his clothes and was naked and that Mr. Bob took off the victim's pants so the victim was naked from the waist down. Then the victim told his mother that Mr. Bob hurt him in the butt, bit his butt, put something in his butt and touched the victim on different parts of his butt. The victim advised his mother that Mr. Bob slapped his face with an open hand when he started to cry. The victim also told his mother that Mr. Bob put "handcuffs" on his hands and then cut them off. Ms. Bach advised the victim stated he was "scared of his arms getting cut." Ms. Bach stated she asked the victim what he used to cut the handcuffs and the victim said a "knife." Ms. Bach advised that the victim was scared of Mr. Bob finding out that he told. Ms. Bach advised that off and on while making his statements about the events, the victim would say that the events happened to the Spider Man doll he was holding during the conversation. Ms. Bach advised that the victim has not seen any movies or TV that would demonstrate such events as the victim was describing and Ms. Bach believes that the event(s) may have been ongoing during the school year from 8/03 to 5/27/04 but does not know how many times. Ms. Bach stated that Mr. Bob provides physical therapy to other of the students as well. Ms. Bach advised after this conversation she recalled previous incidences during the past months when the victim had occasional episodes of blood on the toilet paper when she wiped him after going to the bathroom and stated "it hurts" when she wiped him. On other occasions the victim would come home from school mad and state he was sad because someone hurt him but the victim would not say who it was. Ms. Bach advised that the victim stated he wanted his friend to go to school and beat up Mr. Bob. Ms. Bach advised that the victim used to love school and now does not want to go and is scared to go. Ms. Bach also advised he takes a bath with his younger brother and that the victim has been touching his younger brother's private areas while bathing but she thought it was normal behavior for his age. Also on May 27, 2004, at the request of the Lee County CPT, J.P. was examined by Kathleen Mahan, an ARNP with the Children's Advocacy Center. Before the exam, Ms. Bach told Ms. Mahan that J.P. had complained of pain in his buttocks and said someone had abused him. Also prior to the exam, Ms. Bach told Ms. Mahan that the hospital examination had revealed blood in J.P.'s rectum. However, Ms. Mahan never received confirmation of this statement from the hospital. No such confirmation was offered in evidence at the hearing. Ms. Mahan's examination revealed no conclusive evidence that J.P. had been sexually assaulted. She found no marks on J.P.'s body consistent with the allegations that he had been bitten, hit, or cut with a knife. She found a minor fissure in J.P.'s rectum, but testified that such fissures are a "nonspecific finding" that could result from penetration, but could also be caused by a bowel movement. Ms. Mahan testified that she spoke to J.P. during the examination. She stated that J.P. was unable to state a timeframe for the abuse, which was consistent with Ms. Bach's testimony that J.P. had no concept of time and would state that any past event had occurred "yesterday." Ms. Mahan asked J.P. if anyone had hurt him. J.P. said that Mr. Bob had hurt him. J.P. also told Ms. Mahan that his wrists hurt because Mr. Bob had handcuffed him, that Mr. Bob "touched my penis with his penis," and that Mr. Bob "touched my butt, and he was naked." Also on May 27, 2004, Shaston Boyd, a therapist at the Children's Advocacy Center, conducted a videotaped interview with J.P.6 At the outset, Ms. Boyd established that J.P. could recite the alphabet and count to ten. She used crayons to establish that J.P. knew his colors. Ms. Boyd next attempted to establish that J.P. could distinguish "things that are real" or that "really happened" from "things that are fake." J.P. understood that a Mickey Mouse doll was a "fake" mouse, not a real one. He also assented to the proposition that Brian from "The Fast and The Furious" was not real. Nonetheless, J.P. persistently volunteered that he had raced cars with Brian and that he sees Brian at school. Throughout the interview, J.P. would return to the topic of Brian and race cars at every opportunity. J.P. was also preoccupied with his shoes and socks, because of some sand in his shoes. Ms. Boyd had great difficulty keeping J.P. focused. His responses were often simply free associational statements having nothing to do with Ms. Boyd's questions. When Ms. Boyd first asked about Mr. Bob, J.P. volunteered that he had watched fire safety movies with Mr. Bob and that he would go to lunch in the cafeteria with Mr. Bob. In fact, Respondent's only contacts with J.P. occurred on the PE field. Unable to get J.P. to volunteer sexual allegations about Mr. Bob, Ms. Boyd began to lead the child toward the topic. She asked J.P. about Mr. Bob's car. J.P. told her that he listened to country music in the white car with Mr. Bob. J.P. later specified that Mr. Bob drove a white Toyota.7 He played with Mr. Bob, ate a sandwich, and got a Dr. Pepper. J.P. said that they raced in Mr. Bob's car. J.P. also mentioned Spider-Man and his Aunt Tracy in connection with riding in Mr. Bob's car. After several minutes of questions focused on Mr. Bob, with still no mention of sexual allegations, Ms. Boyd directly asked J.P. whether anyone had ever touched him on his butt. J.P. said that Mr. Bob had touched him on his butt, and it "felt brown."8 Mr. Bob's clothes were on. Mr. Bob called J.P. "stupid" and told him to "shut up." Ms. Boyd asked what Mr. Bob did to his butt. J.P. answered, "Clock," because he had noticed the clock on the wall. J.P. then told Ms. Boyd that he had a new car, but that it didn't work because it needed "big, big batteries." Ms. Boyd again asked J.P. what Mr. Bob had done to his butt. J.P. answered, "Couch," then talked about "black speakers" that he had seen in a dream, and said that the smoke detector at his old house scared him. He said that "fire safety" had been in the car with Mr. Bob and him. In response to Ms. Boyd's gentle but persistent questioning, J.P. said that Mr. Bob had cut him with a "white knife" and that Mr. Bob had called him a "butthead." Contradicting his earlier statement, J.P. said that Mr. Bob's clothes were off when he touched J.P.'s butt. Ms. Boyd asked where else Mr. Bob touched him. J.P. answered, "My race car." A little later, Ms. Boyd repeated the question, and J.P. answered, "My shoe." J.P. told Ms. Boyd that Mr. Bob had a tattoo on his belly. Respondent does not have a tattoo on his stomach. J.P. also stated that Mr. Bob had a "green ball" on his belly. J.P. told Ms. Boyd that Mr. Bob "hit me on my face." J.P. said that a policeman saw Mr. Bob hit him and that J.P. told a fireman that Mr. Bob had hit him. At no point during the interview did J.P. appear upset. He raised his voice at one point late in the interview, saying, "I am telling the truth." In the context of J.P.'s conversation and demeanor throughout the 45-minute interview, this statement was extraordinary. It was the first time J.P. indicated any concern with Ms. Boyd's response to anything he was saying or doing. It also did not impress the undersigned as a statement this child would have spontaneously conceived on his own, without adult coaching. Toward the end of the interview, J.P. remarked that someone named "Mikey" had also touched his butt. Ms. Boyd did not follow up on this statement to ascertain the identity of "Mikey."9 For reasons explained in the Conclusions of Law below, the videotaped interview of J.P. is admissible only as hearsay pursuant to Subsection 120.57(1)(c), Florida Statutes (2004). Even if the tape were admissible over objection pursuant to the hearsay exception in Subsection 90.803(23), Florida Statutes, no findings of fact could be derived from this interview, aside from the recitation of J.P.'s statements. The child's imaginary statements were so commingled with his "real" statements about Mr. Bob that it is impossible to separate them with any degree of confidence. "Brian" seemed as real to J.P. as "Mr. Bob." J.P. related the story of Mr. Bob with the same level of emotion he evinced when speaking of the sand in his shoes. Verifiable portions of J.P.'s stories about Mr. Bob were not true, if Respondent was indeed "Mr. Bob": Respondent did not drive a white Toyota or any kind of white car, Respondent did not have a tattoo on his stomach, Respondent did not have lunch with J.P. in the school cafeteria, and Respondent did not watch fire safety movies with J.P. Detective Tim Fisher of the sex crimes division of the Lee County Sheriff's Office witnessed J.P.'s interview. Both he and his supervisor believed that the interview provided grounds for an investigation. Though he obtained approval from the state attorney's office to conduct his own interview of J.P., Detective Fisher did not conduct the interview because of J.P.'s difficulties in articulating. Detective Fisher hoped that counseling might help J.P. to "get it out," and he decided to wait until some future date to interview J.P.10 As of the date of the hearing in this matter, the interview had not occurred. Detective Fisher interviewed Ms. Bach on some date shortly after J.P.'s examination. By this time, Ms. Bach claimed that J.P. had given her more details about events with Mr. Bob. According to Ms. Bach, J.P. told her that, during the school day, Mr. Bob drove him to Mirror Lakes Golf Club and bought him a sandwich and a Dr. Pepper. Mr. Bob sexually abused him on this excursion. Because Mirror Lakes Golf Club is less than a half-mile from the school, this story seemed plausible to Detective Fisher. Even later, Ms. Bach came forward with additional allegations against Mr. Bob. J.P. told her that on a class bowling trip, Mr. Bob smacked him in the head and called him "stupid" and told him that "he needs to fix his brain." Ms. Bach also stated that J.P. told her that Mr. Bob bled on him, that it was "white blood," and that Mr. Bob put it on his back and stomach. Detective Fisher could not recall Ms. Bach telling him these details. On June 10, 2004, after the 2003-2004 school year had ended, Detective Fisher phoned Karen Holliday, the principal of Mirror Lakes. He told her that J.P. had been physically assaulted by a male teacher at the school and had been removed from campus by this teacher several times during the school year. He provided a general description of the assailant and asked Ms. Holliday for the names of male personnel who might have had contact with J.P. Detective Fisher requested that Ms. Holliday wait to notify the School Board, because he did not want a School Board inquiry to interfere with his own investigation. Ms. Holliday agreed. However, one week later, during a face-to-face meeting, Detective Fisher told Ms. Holliday that Respondent was the target of his investigation. At this point, she told Detective Fisher that she could not keep the matter from her superiors. Ms. Holliday contacted the School Board counsel's office and was referred to Becky Garlock, an investigator in the School Board's human resources department. Ms. Garlock opened her own investigative file. Ms. Holliday testified that she saw Ms. Bach with J.P. on the Mirror Lakes campus twice during the summer of 2004.11 On both occasions, Ms. Bach was walking J.P. up and down one hallway leading to and from the PE field. Ms. Holliday told both Detective Fisher and Ms. Garlock that she was concerned about these visits. Ms. Holliday stated that J.P. was "impressionable" and Ms. Bach could have been attempting to influence the investigation by planting ideas in J.P.'s mind. On this point, Ms. Bach testified that she was following Detective Fisher's instructions to have J.P. show her how Mr. Bob got him out of the school. Detective Fisher did not testify on this point, though his testimony generally indicated that he spent a lot of time dissuading Ms. Bach from being a "little detective" and obstructing his investigation. Ms. Garlock officially opened her investigation in June 2004. She was contacted by Detective Fisher, who requested that she delay her investigation until the criminal investigation was completed. Ms. Garlock notified her superior of the request, and the School Board agreed to hold its investigation in abeyance until Respondent returned to work after the summer break. In June 2004, Detective Fisher, acting on Ms. Bach's information, went to Mirror Lakes Golf Club.12 Detective Fisher interviewed Steve Knott, the golf pro at the club. Detective Fisher testified that he verbally described J.P., who is red- haired, somewhat overweight, and wears glasses. Mr. Knott recognized J.P. from the description, even without a photograph to confirm it. Detective Fisher testified that he then conducted a photo lineup that included Respondent's driver's license photograph. According to Detective Fisher, Mr. Knott went straight to the photo of Respondent and identified him as "the guy that brings" J.P. Mr. Knott stated that he had seen Respondent at the club "many times." Mr. Knott was an extremely reluctant witness. He did not appear at the hearing, though he was subpoenaed by Respondent. In lieu of live testimony, Mr. Knott's deposition was admitted into evidence. Mr. Knott's sworn version of the interview was very different from Detective Fisher's. Mr. Knott confirmed that Detective Fisher first asked about J.P. and that he did remember that J.P. had come to the golf club. Then, Detective Fisher showed Mr. Knott a photograph of Respondent, and asked if he looked familiar. Mr. Knott said that Respondent did look familiar, but that he sees hundreds of people every day and could not positively say whether he had seen Respondent. Then, Detective Fisher "showed me a lineup and the same picture [of Respondent] was in the lineup." Mr. Knott said, "Well, I'm not an idiot," and picked Respondent's photo out of the lineup. Mr. Knott testified that he recalled J.P. coming to the golf club twice, the second time with Ms. Bach. Mr. Knott could not recall who J.P. was with the first time, though he remembered J.P. pounding on the fish tank in the pro shop. However, Mr. Knott could not say that he had seen Respondent with J.P. In fact, Mr. Knott could not say definitely that he had ever seen Respondent, even after meeting him in person at the deposition. He could only say that Respondent looked "familiar," but that "a lot of guys look the same." At the hearing, Detective Fisher was questioned as to Mr. Knott's version of events. Detective Fisher stated that he did not recall showing Mr. Knott the picture of Respondent prior to showing him the lineup, but that he was willing to take Mr. Knott at his word. Detective Fisher candidly admitted that, if Mr. Knott's version of events was accurate, then "that would have made my lineup worthless." Detective Fisher elaborated: You're telling me that he is giving you a statement contrary to what he gave me. That is not the statement he gave me, sir. If he is saying that this is his sworn statement that you're looking at right now [i.e., Mr. Knott's deposition], then I can't say that Mr. Bob is Robert Vandeventer. [Emphasis added] Detective Fisher conceded that Mr. Knott was the only witness who could place Respondent and J.P. together away from the Mirror Lakes campus. Detective Fisher also conceded that he had been unable to establish probable cause sufficient to arrest Respondent. Though the criminal case had not been officially closed, Respondent had not been arrested or charged with any crime as of the date of the hearing. On August 6, 2004, Detective Fisher contacted Respondent at a school where Respondent was participating in a training session for the upcoming 2004-2005 school year. Respondent agreed to drive across town to the Sheriff's Office and submit to an interview with Detective Fisher. Respondent testified that, as he drove to the Lee County Sheriff's Office, he telephoned a friend who works in the criminal justice system. This friend advised Respondent to cooperate with Detective Fisher, but to stop the interview and ask for a lawyer if any of the questions made him uncomfortable. During the interview, Detective Fisher attempted to elicit a confession from Respondent by falsely suggesting that a witness had seen Respondent removing J.P. from the Mirror Lakes campus. Respondent immediately declined to answer any more questions without a lawyer. Detective Fisher told Respondent that his refusal to continue the interview just made him look guilty, but did not pursue the interview any further. After hiring a criminal defense lawyer, Respondent contacted Detective Fisher to reschedule their interview. Respondent answered all of Detective Fisher's questions and submitted to a voice stress analysis test conducted by another Lee County Sheriff's Office employee. The test indicated that Respondent's denial of having committed abuse on J.P. was truthful. The test was inconclusive as to Respondent's denial of ever having been to Mirror Lakes Golf Club.13 After the initial interview on August 6, 2004, Detective Fisher notified Ms. Garlock that he had interviewed Respondent and that Respondent had refused to answer his questions. The School Board immediately suspended Respondent with pay, pending the outcome of its own investigation, which was activated at that time. Ms. Garlock phoned Ms. Bach to arrange an interview, which was scheduled to take place at Ms. Bach's home. When Ms. Garlock arrived at the appointed time, Ms. Bach was not home and had left no explanatory message for Ms. Garlock. After Ms. Garlock made several attempts to reschedule the interview, Ms. Bach agreed to meet with her at the School Board's office on September 2, 2004. During this interview, Ms. Bach told Ms. Garlock that J.P. had identified Mr. Bob's car as a white Toyota SUV. Mr. Bob had a camera in the car with a green light just like a camera owned by J.P.'s uncle. Ms. Bach stated that J.P. told her that he hated it when Mr. Bob would fold down the seats and place the camera on a speaker in the back, because that is when J.P. would get hurt. J.P. accompanied Ms. Bach to the interview, but Ms. Bach would not allow Ms. Garlock to speak with J.P. During the interview, Ms. Bach told Ms. Garlock about the CPT interview and reports and offered to provide them to Ms. Garlock.14 Ms. Bach never provided those materials to the School Board. Ms. Bach also agreed to prepare a written statement for Ms. Garlock. She never provided a written statement, claiming that Detective Fisher had told her that doing so would impede his criminal investigation. At the hearing, Detective Fisher could not recall telling Ms. Bach that she should decline to cooperate with the School Board's investigator. On September 10, 2004, Ms. Garlock interviewed Respondent. In the interest of speeding up the interview, Respondent declined Ms. Garlock's offer to have his attorney present. Ms. Garlock described Respondent as cooperative and to all appearances open and honest during the interview. Respondent told Ms. Garlock that he always signs in and out of the offices of the schools on his schedule and that he is never alone with students, including J.P. Respondent explained to Ms. Garlock the procedure for taking the children as a group to and from PE class, and recounted that there were always four or five other adults on the Mirror Lakes PE field during the period in which he taught J.P.'s class. Respondent told Ms. Garlock that he had been driving a blue Nissan Altima for more than a year, had previously driven a blue Ford Escort, and had never driven someone else's car to work. In other words, during the relevant period, Respondent had never driven a white car, a white SUV or a white vehicle of any kind. Respondent told Ms. Garlock, as he had Detective Fisher, that he had no tattoos on his stomach. After interviewing Respondent, Ms. Garlock contacted the principals of all eight schools at which Respondent provided adaptive PE services. Each principal reported that no complaints of any kind had been lodged against Respondent by any parent, student, teacher, or administrator. On September 15, 2004, Ms. Garlock interviewed Mr. Knott at the Mirror Lakes Golf Club. Mr. Knott identified a Mirror Lakes yearbook photo of J.P. as a boy who had been to the golf course "a few times." Mr. Knott also identified a driver's license photo of Respondent as someone he had seen at the golf course. Mr. Knott could not say "for sure" whether Respondent and J.P. had been at the course together. Ms. Garlock interviewed and obtained written statements from Mr. Bates, the Mirror Lakes PE teacher, and from Ms. Joyal's two teacher's aides, Nancy Busack and Teresa Rosales. Each of these three interviewees told Ms. Garlock that he or she never saw Respondent alone with J.P. Both Mr. Bates and Ms. Busack stated that they did not see how Respondent could arrange to be alone with a student, given the logistics of the PE class. Mr. Bates also stated that he did not see how Respondent could take J.P. off the campus in his car, drive to the golf course, and return during the PE class because of the time involved and because at least one of Ms. Joyal's aides was always with him. Ms. Garlock did not seek to obtain the results of the voice stress analysis test taken by Respondent or of the medical exam performed on J.P. by Ms. Mahan, though Ms. Garlock was aware of them. Ms. Garlock made no further efforts to obtain the CPT records after Ms. Bach failed to provide them as promised during her interview. Though every piece of adverse information about the alleged abuse available to Ms. Garlock had been filtered through Ms. Bach,15 Ms. Garlock conducted no inquiry regarding Ms. Bach's background or credibility. At the hearing, Ms. Garlock conceded that ascertaining the credibility of the sole witness against Respondent would probably be important. At the hearing, Ms. Bach admitted that she had pled no contest to a child abuse charge for allowing J.P. to be bitten on the head by a snake at a friend's residence when he was an infant, an incident that possibly caused his mental disability. Ms. Bach also admitted to having been convicted of petit theft, admitted to having been a victim of repeated domestic violence that J.P. had witnessed, admitted to having multiple live-in boyfriends, and admitted to having had three children by three different fathers. Though Ms. Bach claimed to have exposed J.P. to nothing that could have caused him to invent the allegations he made against Mr. Bob, her background at least suggests otherwise. Ms. Bach's stated intention to sue the School Board if she could prove the allegations against Respondent,16 coupled with her criminal history and her refusal to allow J.P. to testify in any way (including her defiance of this tribunal's subpoena),17 gives rise to an adverse inference regarding Ms. Bach's motive to fabricate the details of J.P.'s story. J.P. never testified in this proceeding. Over the strenuous objection of Respondent, the undersigned has considered the videotaped interview conducted by Ms. Boyd at the Children's Advocacy Center, pursuant to the hearsay provision of Subsection 120.57(1)(c), Florida Statutes (2004). As noted above, even if it met the standard for a hearsay exception, the statement would be wholly unreliable as the basis for findings of fact due to J.P.'s constant commingling of apparent reality and obvious fantasy. At no time prior to the hearing in this case did the School Board have access to this videotaped statement or to any other direct evidence that Respondent committed sexual battery on J.P.18 The medical examination was inconclusive, and the alleged eyewitness, Mr. Knott, refused to give the School Board a written statement or to confirm in any way that he saw Respondent and J.P. together at Mirror Lakes Golf Club. The School Board's own employees, including Ms. Holliday, Mr. Bates, and Ms. Busack, were skeptical that these allegations could be true,19 both because of Respondent's observed behavior on the PE field and because of the logistics of the situation. In the space of approximately 45 minutes, Respondent supposedly managed to take J.P. off the PE field, walk him across campus to the visitors' parking lot, put him into his car, drive off campus to the golf course, strip naked and sodomize J.P., re-dress himself and J.P., then drive back to campus and return J.P. to the PE field in time to line up with his class. In at least one instance, Respondent allegedly also bought J.P. a sandwich and Dr. Pepper at the golf club. Further, Respondent supposedly managed to do all this, on several occasions, without ever being noticed by anyone at the school. On August 6, 2004, Respondent received notice that the School Board was suspending his employment with pay and benefits pending the outcome of the School Board's investigation. A pre- determination conference was scheduled for and held on October 1, 2004. Respondent appeared at the conference with his criminal defense attorney, Joseph A. Simpson. Also at the conference were Georgianna McDaniel, the School Board's director of personnel services; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment; and J. Paul Carland, II, the School Board's staff attorney. At the outset, Mr. Carland stated that Respondent had the Fifth Amendment right not to speak at the conference and to communicate through his counsel. Mr. Simpson answered that Respondent was there to disclose all he knew. Respondent answered all questions put to him at the conference, and Mr. Simpson made a detailed presentation refuting the factual allegations as they were then understood.20 Among the telling points made by Mr. Simpson: Respondent did not drive a white car, every School Board employee actually on the PE field stated that Respondent was always in plain sight and never alone with J.P., Ms. Holliday was concerned that Ms. Bach had led J.P. through the school to coach him in making a statement, Mr. Knott refused to give the School Board a written statement, and Detective Fisher had told Ms. Garlock that his case against Respondent was going nowhere. Nonetheless, by letter dated October 7, 2004, the School Board informed Respondent that it had found probable cause for disciplinary action and was recommending to the Superintendent of Schools that Respondent be terminated from his position. On October 13, 2004, the School Board filed the Petition, alleging that Respondent "committed a sexual battery on a student during the 2003-2004 school year." In a letter dated October 29, 2004, counsel for Respondent notified the School Board of Respondent's intention to seek an award of attorney's fees should the School Board elect to proceed with its intended action. The Petition was heard by the School Board on November 4, 2004. The School Board voted to suspend Respondent without pay and to forward the Petition to DOAH for a formal hearing. The case was forwarded to DOAH on November 12, 2004. Respondent filed a motion for attorney's fees on January 3, 2005, and filed an amended motion on March 7, 2005, seeking an award of attorney's fees pursuant to Subsections 120.569(2)(e) and 57.105(1) and (3) and Sections 120.595 and 1012.26, Florida Statutes (2004). On January 20, 2005, the School Board filed a motion for protective order seeking to prevent counsel for Respondent from taking J.P.'s deposition "now or in the future," because his therapist at the Child Advocacy Center believed that the deposition would be "detrimental to his emotional stability." The motion also disclosed that the School Board had become aware of the existence of the videotaped interview and offered that tape to Respondent in lieu of taking J.P.'s discovery deposition. After a telephonic hearing, an order was entered denying the motion on January 21, 2005. On January 25, 2005, the parties filed an agreed motion for an order directing the Lee County CPT to release the confidential videotaped statement to both the School Board and Respondent, pursuant to Subsection 39.202(6), Florida Statutes (2004). By Order dated February 9, 2005, the undersigned denied the motion because the cited statute provides for release of these confidential CPT materials pursuant to "order of the court." Because DOAH is an executive branch tribunal, not a "court," the undersigned concluded that he was without authority to enter the requested order. On February 9, 2005, Ms. Bach and J.P. were subpoenaed to testify at the final hearing on March 15, 2005. On March 8, 2005, counsel for Ms. Bach entered an appearance and filed a motion for protective order on behalf of J.P., pursuant to Section 92.55, Florida Statutes (2004). On March 11, 2005, counsel for the School Board filed an emergency motion for continuance, which related the following: "Counsel [for Ms. Bach] also advised the undersigned today that should the motion [for protective order] be denied, the mother has stated that she will not make the student/victim available to testify despite having been subpoenaed to do so." Ms. Bach never retreated from this position. As noted above, Ms. Bach reiterated at the final hearing that she would not permit J.P. to testify, at least not under circumstances that would allow counsel for Respondent to cross-examine the child. Respondent testified without contradiction that he had received a supplemental coaching contract worth approximately $1,600.00 annually every year he was employed by the School Board. Respondent's undisputed testimony was that he had been offered the supplemental coaching contract for the 2004-2005 school year and that he would have signed the contract had he not been suspended. In summary, it is found that the School Board failed to prove by a preponderance of the evidence that Respondent committed a sexual battery on J.P. during the 2003-2004 school year. In fact, the School Board produced no evidence that would cause a reasonable person to suspect that Respondent did or even could have done the acts attributed to him. J.P. did not testify, and his videotaped interview was unreliable. The sole alleged eyewitness, Mr. Knott, denied having seen Respondent with J.P. At the hearing, the School Board was reduced to asking its own employees whether it was "possible" that Respondent could have taken J.P. off the campus and back, unseen, during the 45-minute PE period, after those employees testified as to the extreme unlikelihood of that scenario. The undersigned cannot find that Ms. Bach formed her allegations from whole cloth, despite her stated intent to sue the School Board. She took the fragmentary elements of J.P.'s May 26 conversation and constructed a narrative that implicated Respondent. She later came forward with details that became increasingly less likely to have originated with J.P. It cannot be stated with any degree of certainty whether J.P. was initially relating something that actually happened to him or was telling a story based on something he had witnessed, either in a movie or at home. The hearsay statement of Ms. Joyal rings true in this regard: "[J.P.] is simply innocent and not socially aware enough to make up such a horror story. It would not be in his realm of awareness to imagine such a thing." Whatever embellishments his mother added to his story,21 J.P. may well have been the victim of sexual abuse. It certainly made sense that the police and the School Board investigated the matter. It also made sense that Respondent would be the initial focus of the investigation, given that he was apparently the only "Mr. Bob" known to J.P. However, at some point well before the filing of the Petition, it should have been obvious to any objective observer that it was a virtual certainty Respondent was not and could not have been the perpetrator. The School Board conceded that Respondent's only point of contact with J.P. was during the 45-minute PE class, obviously not time enough for Respondent to accomplish without notice the acts of which he stands accused. The School Board's own investigator believed that the factual scenario offered by the School Board was "implausible." Nothing in the record of this proceeding gives reason to dispute Ms. Garlock's conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Petition and reinstating Respondent as an assistive physical education teacher with the Lee County School Board, with an award of back pay and benefits to include his supplemental coaching contract for the period in question. Jurisdiction is reserved to enter a final order, pursuant to Subsections 57.105(1) and (5) and 120.569(2)(e), Florida Statutes (2004), that the School Board shall pay Respondent his reasonable attorney's fees and costs in connection with the defense of this case. If the parties are unable to agree upon the amount of fees and costs to be awarded pursuant to this paragraph, and document this agreement, within 60 days from the date of the School Board's final order, Respondent shall file a motion seeking a hearing on, and determination of, the amount of such fees and costs. If Respondent fails to do so within 180 days from the date of the School Board's final order, Respondent shall have waived his right to obtain such an award. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of October, 2005.
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
