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 The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent has held a teaching certificate issued by the State of Florida, valid through June 30, 2002. At all times material hereto, Respondent was employed by the School Board of Miami-Dade County, Florida, as a language arts (English) teacher, assigned to Lake Stevens Middle School and subsequently assigned to her own home as an alternate work site. On May 4, 1995, Lucille Collins, an assistant principal at Lake Stevens, conducted a conference with a student, that student’s parent, and Respondent. During the conference, Respondent became enraged and began shouting at Collins. Collins terminated the conference and attempted to return to her office. Respondent followed her, continuing to shout as the two proceeded toward Collins’ office. The student and the parent witnessed Respondent's behavior. On February 8, 1996, Assistant Principal Collins convened a conference with Respondent and Dorothy Johnson, the principal’s secretary, to address conflicts between Respondent and Johnson. Toward the end of the meeting, Respondent became agitated. She began shouting at Collins and trying to provoke another argument with Johnson. On May 2, 1996, Respondent entered the teachers’ workroom and started yelling at Collins. Collins directed Respondent to stop and to come meet with her privately, but Respondent refused twice to meet with Collins. Respondent remained “out of control” and continued yelling as she moved through the office and out into the hall near the cafeteria. On May 15, 1996, Collins conducted a TADS observation of Respondent. A TADS observation is an extended and formal observation of a teacher in a classroom to determine if the teacher possesses the minimum competencies required of a classroom teacher. The trained observer is required to assess six categories that must be deemed satisfactory in order for the teacher to receive an acceptable evaluation. The teacher undergoing the TADS observation is required to submit to the observer lesson plans, student folders, and the grade book. On that day Respondent was unable to produce a lesson plan or grade book. Respondent was given five days to produce the required materials. As of May 20 Respondent had not complied. However, she did eventually comply, and the TADS observation showing Respondent was deficient was then voided. On October 2, 1996, Dr. James Monroe, Executive Director of the Office of Professional Standards for the Miami- Dade School Board, directed Respondent to attend a conference- for-the-record on October 7. The purpose of the conference was to address an act of battery by Respondent and her fitness for future employment. Respondent attended the meeting. At the meeting, she was referred to Dr. Michael Hendrickson for a psychological evaluation. Respondent went to Hendrickson who opined that Respondent was able to return to her teaching duties, with the following recommendations: (1) that Respondent seek help through the School Board’s Employee Assistance Program; (2) that Respondent undergo a neurological examination to rule out any neurological problems; and (3) that Respondent undergo psychotherapy once a week for a year. Based upon that evaluation, Respondent was permitted to return to her classroom. Shortly thereafter, an event known as “Back to School Night” was held at Lake Stevens. During that evening, teachers at Lake Stevens are required to be present in their classrooms to meet with parents. Respondent did not attend and did not advise the administrators at the school that she would not attend. Several parents complained to the principal and to Assistant Principal Collins that Respondent was not in attendance and that they were concerned because they had not received progress reports from Respondent and did not know if their children were passing or failing in Respondent’s class. Due to the parents’ concerns, the principal instructed Collins to conduct another TADS observation of Respondent. On October 22, 1996, Collins conducted another TADS observation of Respondent. She observed that Respondent's grade book had no recorded grades for periods five and six. She noted that the student folders contained no graded assignments. Respondent could not produce any graded tests, quizzes, weekly exams, unit tests, or progress checks. Respondent had not completed organizing the students' class work, homework, or folders in any observable fashion. In addition, Respondent's lesson plans were incomplete. On October 30, 1996, Collins reviewed with Respondent her written evaluation of Respondent's performance during the TADS observation. The written report noted Respondent's deficiencies and directed Respondent to comply with a prescription plan. Respondent was given specific deadlines, as follows: submit five sample graded tests and five writing portfolios to Collins by October 31; submit a complete and up- to-date grade book to Collins by November 1; complete all student folders and portfolios and have them available for review by November 1; read relevant portions of the TADS Prescription Manual by November 12, and submit activities for review and discussion with her department chairperson by November 12. Respondent acknowledged receipt of these directives by signing the TADS report on October 30. Respondent failed to comply with those directives and has never complied with them. Collins reported to Principal Willie B. Turner Respondent's failure to comply with her directives. On December 11, 1996, Principal Turner sent Respondent a memorandum directing her to report for a conference-for-the- record to be held in his office on December 16. The purpose of the conference was to discuss Respondent's non-compliance with the TADS prescription plan. On December 12 Respondent approached Principal Turner while he was on bus duty in front of Lake Stevens Middle School. Turner invited Respondent to speak to him after he was finished. Respondent came to his office and began "venting" at Turner, screaming at him and using "choice words." Turner told Respondent to leave his office, but she refused. Other staff members who were attracted by Respondent's screaming attempted to remove Respondent from Turner's office. With the help of the school's resource office, they were eventually able to do so. Immediately after the December 12 incident in Turner's office, Respondent was removed from Lake Stevens Middle School and assigned to work at her home. The conference originally scheduled to be held at Lake Stevens was re-scheduled to be held at the Office of Professional Standards on December 16. At the meeting, which Respondent attended, she was directed by Dr. James Monroe to contact the Employee Assistance Program immediately, undergo the required neurological evaluation, and attend the required psychotherapy once a week for a year. On or about January 9, 1997, Respondent contacted the Employee Assistance Program but declined to participate. On January 31, 1997, Dr. Monroe sent Respondent a memorandum in which he noted that she had not complied with his three prior directives. Respondent was given five additional days to comply and was informed that her continued failure to comply would be considered gross insubordination. Respondent attended a follow-up visit with Dr. Hendrickson on March 6, 1997. Following this visit, Hendrickson advised Dr. Monroe in writing that Respondent should undergo a psychiatric evaluation to assess her behavior and aggressive outbursts. Upon receiving Hendrickson's report, Dr. Monroe scheduled a meeting with Respondent for March 25. Respondent acknowledged receipt of that notice on March 19. Respondent attended the March 25 meeting. By that time, she had complied with the requirement that she undergo a neurological examination. At the meeting, she presented to Dr. Monroe a letter from a Dr. Cheryl Nowell indicating that Respondent had commenced psychotherapy on January 21, 1997. At that time, however, Respondent had still not undergone a psychiatric evaluation. On April 8, 1997, Dr. Monroe sent Respondent a memorandum summarizing the March 25 meeting. He again directed Respondent to undergo a psychiatric evaluation, gave Respondent five days to comply, and advised Respondent that her failure to comply would be considered gross insubordination. Dr. Monroe transmitted the information furnished by Respondent at the March 25 meeting to Dr. Hendrickson for review. After reviewing the information, Dr. Hendrickson wrote to Dr. Monroe that he believed that Respondent still needed to undergo a psychiatric evaluation. Dr. Monroe subsequently advised Respondent of that continuing requirement. Respondent did not undergo a psychiatric evaluation. On April 29, 1997, Dr. Monroe notified Respondent that she was to report for a conference at the Office of Professional Standards on May 1. Respondent signed the notice on April 29. The purpose of the meeting was to discuss Respondent's continued refusal to comply with prior directives. On April 30, 1997, Respondent contacted Dr. Joyce Annunziata, the Assistant Superintendent of the Office of Professional Standards. Respondent, through her union representative, advised Annunziata that Respondent would not attend the meeting unless she was escorted by an uniformed Metro-Dade County deputy or City of Miami police officer. Respondent stated her reason to be that she was in fear of her life due to what she perceived to be threats from Dr. James Monroe. Dr. Annunziata investigated Respondent's assertion and found it to be without merit. Her union representatives at every prior meeting with Dr. Monroe had accompanied Respondent, and Dr. Monroe had not physically threatened Respondent. Respondent failed to appear for the May 1 meeting. At her request, the meeting was re-scheduled for May 2. Respondent continued to insist a deputy sheriff or police officer accompany her. On May 2, Dr. Annunziata notified Respondent's union representative in writing that Respondent's demand for an uniformed law enforcement officer would not be met, that Respondent must decide if she would attend the meeting or not, and that Respondent's failure to attend the meeting would be considered gross insubordination. Respondent failed to attend the meeting. On that day Principal Turner recommended that the Miami-Dade County School Board terminate Respondent from further employment. Dr. Monroe decided to give Respondent one more chance. He re-scheduled the meeting for May 13, 1997, sent Respondent a written notice, and read the notice to Respondent over the telephone. Respondent was advised that her failure to attend the re-scheduled meeting would result in termination of her employment. Despite having notice, Respondent did not attend the May 13 meeting as she had failed to attend the May 1 and 2 meetings. On June 13, 1997, Respondent received an overall unacceptable TADS evaluation for the 1996-97 school year. She achieved an unacceptable rating in the categories of preparation and planning, assessment techniques, and professional responsibilities. Respondent's continuing failure to attend the conferences scheduled by Dr. Monroe constitutes gross insubordination. Further, Respondent's failure to comply with the reasonable TADS prescriptive plan given her to overcome her classroom deficiencies constitutes gross insubordination. Respondent's failure, in conjunction with her TADS observation, to have records of students' grades, graded assignments, graded exams, lesson plans, and student writing portfolios constitutes incompetence. Respondent received an unacceptable evaluation based upon her classroom performance on October 26, 1996. She achieved two subsequent unacceptable evaluations for professional responsibility for her continuing failure to comply with directives given to her, not for conduct in her classroom. Finally, she achieved an unacceptable annual evaluation. In light of Respondent's long-standing history of aggressive behavior, the Miami-Dade County School Board's requirement that she submit to a psychiatric examination was reasonable. Respondent's failure to comply with that directive was unreasonable and further constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and permanently revoking her teaching certificate. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 17th day of September, 2001. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 J. Wiley Horton, Esquire Pennington Law firm Post Office Box 10095 Tallahassee, Florida 32302-2095 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Helen B. Williams Post Office Box 551894 Carol City, Florida 33055-0894
The Issue Did Respondent leave the Southside Middle School campus without permission in the 1989-90 school year; in that same year, did Respondent make a threatening complaint in writing to Vice Principal, Peggy Williams; in that same year, did Respondent fail to submit a written report of a fight between students; did Respondent use profanity in the school year 1990-91 while employed at Southside Middle School; did Respondent leave campus without permission and leave his classes unattended in the school year 1991-92 while employed at Lake Shore Middle School; did Respondent engage in inappropriate conduct with students by grabbing a male student, M.F., by the shoulders and squeezing that student's shoulders and making that student go to his knees in the school year 1992-93 while employed at Lake Shore Middle School; did Respondent in that same year grab and hit A.H. in the chest and in the stomach; did Respondent in that same year pull the student, J.W.'s ear; did Respondent in that same year plan a field trip to Walt Disney World, Florida, without approval from the Duval County School District; did Respondent fail to follow district procedures for purchasing t-shirts and sweatshirts for students; did Respondent in the school year 1993-94 while employed at the Lake Shore Middle School fail to comply with guidelines in submitting a "no show" list related to student attendance; and did Respondent engage in profanity in the presence of students in that same year?
Findings Of Fact At times relevant to the inquiry Respondent has held Florida teaching certificate number 638543 covering the areas of health, biology, and physical education. In the fall of 1989, Respondent began employment with the Duval County, Florida, School Board in a teaching position at Southside Middle School. While serving as a teacher at Southside Middle School, Respondent broke up a fight between two students that was occurring in a hallway. Following the incident his obligation was to file a written report detailing the facts. That report was due immediately. The Respondent had to be reminded twice before rendering the report. The report was rendered before the students met with a school hearing officer to resolve the incident. In the fall of 1991, Respondent voluntarily transferred to an assignment at Lake Shore Middle School. That school is also part of the Duval County School District. On one occasion while Respondent was employed at Lake Shore Middle School, Timothy Hamel, another teacher at that school, observed that Respondent's class had been left unattended from approximately 3:40 p.m. until 4:00 p.m. On another occasion, while Respondent was employed at Lake Shore Middle School, Respondent left campus at a time when he did not have classes and did not return until after school had concluded for the day. As a consequence, he missed instruction periods for some classes that he was responsible for teaching. This circumstance was established through testimony from Arlene Guthrie, Assistant Principal for Curriculum at Lake Shore Middle School. The proof submitted at hearing did not satisfactorily demonstrate that the Respondent had made arrangements to cover classes which he missed on this occasion. In the spring of 1993, Respondent was interested in taking some students on a field trip to Walt Disney World, Florida. A conversation was held between the Principal at Lake Shore Middle School and the Respondent concerning this field trip. The principal was persuaded that it was too late in the year to schedule a field trip. Nonetheless, Respondent replied that he was going on the field trip and would rent a van on his own to transport the students, separate and apart from school sanctioned transportation. In the conversation concerning the field trip, the principal asked Respondent if he had obtained parent/guardian permission slips for the students to attend the outing. Respondent replied in the affirmative. A permission information sheet directed to the parents or guardians pertaining to the nature of the field trip was prepared on the Lake Shore Middle School letterhead and signed by Respondent, as sponsor for a school club known as Manhood, Achievement, Community Service. That information sheet indicated that the trip would take place on May 28-30, 1993. Further, it indicated that expenses would be taken care of, except for meals and spending money for the students. The correspondence went on to indicate that the parents or guardians would be informed of the hotel address after receipt of confirmation of room reservations. The information sheet indicated the departure and return time. Respondent confirmed the knowledge of the parents about those details by having them sign the information sheet. As discussed between Respondent and the principal, there was no mention in the information sheet about Respondent arranging for transportation on his own by renting a van. When the principal asked Respondent about the duration of the trip, Respondent indicated that it was more than a single-day trip. The principal wanted to know if Respondent had made arrangements for a place to stay. At that time, Respondent replied that no such arrangements had been made but that Respondent would obtain a place to stay. The principal was not convinced that the parents and guardians were sufficiently apprised of the nature of this outing and told Respondent that Respondent could not take the trip. After the conclusion of the conversation between the Respondent and the principal, Respondent still insisted that he was going on the field trip to Walt Disney World. In the conversation between the principal and Respondent concerning the field trip, the issue related to the payment for the trip was addressed. The principal was concerned that there was not enough money to pay for the trip and asked the Respondent how the balance of the money was to be paid. Respondent replied that the parents would pay. When the principal asked if Respondent had consulted with the parents concerning this additional cost, the answer was no. The conference between the principal and Respondent was held two or three days before the trip was to take place. When it became obvious that the school district, from the principal's perspective, did not wish to sanction the trip, matters were left in the posture that if the Respondent wanted to go on the trip as an adult in charge of those children, then that arrangement would have to be carried out between Respondent and the parents. In that setting of a private trip the school district did not want the Respondent to create the appearance that the trip was a trip sanctioned by the school district. Eventually correspondence was given to the Respondent from Gerlieve R. Oliver, Assistant Superintendent, Middle Schools, Duval County School System, confirming that the Respondent did not have permission to take an official school trip to Disney World. The correspondence also informed the Respondent that he could not take a non-school related trip, given that the written communications to parents concerning the trip was made on school letter head, thus creating the appearance of being a school sponsored trip. This appearance caused the school district to instruct the Respondent that he could not take a non-school trip either. This communication dated May 26, 1993, informed the Respondent that the parents or guardians of the students who were to be taken on the trip would be made aware of the telephone conversation between the Respondent and Ms. Oliver concerning the field trip. The conversation between Respondent and Assistant Superintendent Oliver was instigated by Respondent. It is that telephone conversation that led to the preparation of the correspondence. The correspondence from the assistant superintendent to the Respondent reminded the Respondent that if he failed to follow the directions that he might put himself in jeopardy concerning employment with the district and admonished Respondent to be more careful in adhering to directions. The correspondence from Ms. Oliver to Respondent also mentioned that if Respondent were more careful about following procedures in the future that this would result in the Respondent being able to provide opportunities for his students. This is taken to mean opportunities such as field trips. While Respondent was employed at Lake Shore Middle School there was a policy related to what is referred to as a "no show" list. In particular, at the commencement of the school year a given school counts the number of students in attendance as a means of determining the amount of money the school is entitled to for conducting its operations. The expectation is that the individual school teacher will document this count by calling a roll each day and turning in a slip to the administrative offices verifying the students who did not attend school on that day. Respondent did not comply with that requirement. While Respondent was teaching at Lake Shore Middle School an incident occurred between male students K.A. and M.F. in the school lunch room. K.A. and M.F. were arguing. Respondent came over and broke up the argument by grabbing both of the students by their respective shoulders. On two other occasions while Respondent was in the lunch room with the students, he grabbed A.H. around the neck in the first encounter and the second encounter grabbed that student by the shoulder. When Respondent grabbed A.H. around the neck the student winced and frowned. The reason for that initial encounter between the Respondent and A.H. is not clear. On the second occasion Respondent grabbed A.H. by the shoulder, A.H. had similar expression in that he winced and frowned. Again it is unclear concerning the reason for Respondent's actions. In the experience of K.A., while attending a class taught by Respondent, he observed Respondent curse in class on a somewhat frequent basis. That frequency was as much as four times a day, three days a week. On one occasion K.A. observed Respondent grab D.A. around the neck and tell D.A. to sit down or Respondent was going to be "kicking his fucking ass." Other curse words that K.A. heard the Respondent use were words like "ass", "damn", and "asshole". According to Ms. Guthrie, an expert in education, cursing in front of students, using inappropriate discipline such as grabbing necks and shoulders of students and leaving the class unattended on more than one occasion, constitutes a circumstance in which the Respondent has lost his effectiveness as a teacher. That opinion by Ms. Guthrie is accepted.
Recommendation Based on the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered finding Respondent in violation of the four counts in the Administrative Complaint and suspending the Respondent's teaching certificate for thirty (30) days. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995. COPIES FURNISHED: Nathan L. Bond, Esquire 2121 Killarney Way, Suite G Tallahassee, Florida 32308 J. David Holder, Esquire 1408 Piedmont Way Tallahassee, Florida 32312 Steven A. Williams 6200 South Barnes Road, P-20 Jacksonville, Florida 32216-5633 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment as a grounds custodian based upon his absence from work without approved leave.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is the governing body of the local school district in and for Seminole County, Florida. Lake Mary High School is a school within Petitioner's district. The School Board employs custodial staff to maintain the facilities and grounds of the schools within the district. Respondent was first employed by the School Board as a custodian in 1999 or 2000. Most recently, Respondent was "reappointed" for the 2002-03 school year under a 12-month contract. Respondent's employment with the School Board is governed by the Official Agreement Between the Non-Instructional Personnel of Seminole County Board of Public Instruction Association, Inc. (NIPSCO) and the School Board of Seminole County, most recently amended on August 6, 2002 [hereafter "NIPSCO Agreement"]. Among other things, the NIPSCO Agreement specifies the types of leave available to employees such as Respondent as well as the consequences for being absent from work without approved leave. Respondent was the custodian or groundskeeper responsible for maintaining the exterior grounds of Lake Mary High School, including the parking lots and the athletic fields. Respondent's immediate supervisor was Scott Underwood, the Assistant Principal at Lake Mary High School. Mr. Underwood's supervisor was Boyd Karns, Jr., the principal at Lake Mary High School. As the principal, Mr. Karns is ultimately responsible for the supervision of the personnel at Lake Mary High School. On or about August 1, 2002, Respondent requested vacation/annual leave for the period of August 19 through 30, 2002. The request was made to Mr. Underwood. Mr. Underwood initially discouraged Respondent from taking vacation on those dates because they were close to the start of the school year and the school grounds needed to look good for upcoming events such as the "open house" which marked the beginning of the school year. The athletic fields also needed to be prepared for upcoming sports events. As the school's groundskeeper, Respondent was primarily responsible for the condition of the school's exterior grounds. Respondent insisted on taking vacation on those dates and, despite his initial reservations, Mr. Underwood ultimately recommended approval of Respondent's request for vacation leave. Mr. Karns approved that recommendation. On or about August 22, 2002, while he was on vacation leave, Respondent submitted a written request for additional leave for the period of September 3 through September 19, 2002. He requested personal leave without pay for that period. The reason given by Respondent for his request for additional leave was that he wanted to help his sister open her business which was located in another state, although that may not have been the "real" reason for the request. If that additional leave had been granted, it would have resulted in Respondent being on leave for a period of five weeks -- August 19 through September 19, 2002 -- and the school being without its groundskeeper for that same period. That absence would have created a hardship for the school because Respondent was primarily responsible for the condition of the school grounds and that period coincided with the beginning of the school year when it was especially important that the school grounds look good. On August 23, 2002, Mr. Underwood spoke to Respondent by telephone about his request for additional leave. Mr. Underwood told Respondent that he was recommending that the request be denied for the reasons noted in the preceding paragraph. Mr. Karns concurred in that recommendation and Respondent's request for the personal leave without pay was denied. During the August 23, 2002, telephone conversation, Mr. Underwood expressly told Respondent that he was expected to return to work on Tuesday, September 3, 2002, since his approved vacation leave ended on Friday, August 30, 2002, and Monday, September 2, 2002, was Labor Day. Respondent did not appear for work on September 3, 2002, or any point thereafter. He did not contact Mr. Underwood or Mr. Karns on September 3, 2002, or at any point thereafter regarding his absence. Based upon Respondent's absence from work on September 3, 2002, without authorization and in violation of Mr. Underwood's direction to him on August 23, 2002, Mr. Karns recommended to the Superintendent of the School Board that Respondent's employment be terminated. By letter dated September 5, 2002, the Superintendent informed Respondent that he was recommending that the School Board immediately suspend Respondent without pay and that the School Board thereafter terminate Respondent's employment. The letter informed Respondent of his right to appear at the School Board meeting where the suspension recommendation would be considered as well as his right to request an administrative hearing on the recommended termination. The School Board considered the matter at its meeting on September 10, 2002. The School Board accepted the Superintendent's recommendation and suspended Respondent without pay effective September 11, 2002. The record does not reflect whether Respondent appeared at the School Board meeting to contest the suspension. On September 25, 2002, Respondent timely requested an administrative hearing "with regard to the recommendation for termination of [his] employment." As a result of that hearing request, Respondent's employment status remained (and still is) suspended without pay. The record does not include any evidence of prior disciplinary action taken against Respondent by the School Board. Respondent was provided due notice of the time, date, and location of the final hearing in this case, but he failed to appear at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 17th day of April, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 17th day of April, 2003.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petitioner's Amended Notice of Specific Charges, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto and since 1980, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract. She was assigned to Pine Lake Elementary School for the 1992-93 school year. She is familiar with the School Board's rules regulating employee conduct and prohibiting the use of corporal punishment. Prior to the 1992-93 school year and as a result of complaints from parents, Respondent was given written directives, reasonable in nature and given by and with proper authority, to desist from using abusive, sarcastic, and disparaging language with elementary school children. Those directives specifically reminded Respondent of her obligation as a teacher to not intentionally expose students to unnecessary embarrassment or disparagement and to avoid using abusive language in the presence of children. She was also cautioned against the use of intimidation and ridicule. Prior to the 1992-93 school year Respondent received another written directive, reasonable in nature and given by and with proper authority, to refrain from intimidating or being disrespectful to other employees. Respondent was further specifically ordered to stop directing profanity at members of the staff and to avoid situations that result in confrontations. In December of 1992 a fight broke out between Respondent's son and Tony, another elementary school student, while they were in the breakfast line in the school cafeteria. Frederick Collins, the route salesman for Velda Farms Dairy, was delivering milk to the cafeteria and saw the two boys fighting. He put down his milk so he could stop the fight. As he ran toward the two boys, he saw Respondent, whom he knew to be a teacher at that school, running toward the two boys. Respondent got to the boys first. Respondent grabbed Tony around the neck with both hands and began choking him and shaking him. Respondent was choking Tony so hard that his tongue was out of his mouth. She was hysterical and kept screaming at Tony over and over again about him "messing" with her son. Collins reached Respondent and tried to pull her away from the frightened child. By that time, Moses Holcomb, the head custodian at the school, had heard the noise and the other children calling to him to come help. He ran to where Respondent was choking and shaking the child, and together Holcomb and Collins were able to separate Respondent from Tony. Even after the two men were able to pull Respondent away from the child, she tried to get to him again. Holcomb had to physically get between Respondent and Tony, and Collins had to physically hold her to prevent her from grabbing Tony again. Tony did not kick at Respondent during the altercation. Further, Tony did not flail his arms at her and did not try to hit her. He was passive during the entire time that she was choking and shaking him and screaming at him. Holcomb took Tony to the principal's office and reported Respondent's conduct to the principal. When the principal spoke to Respondent about her attack, Respondent admitted hitting, choking, and shaking Tony. Respondent's attack on Tony was observed by students, parents, faculty, and staff members. Collins expressed his shock at seeing a teacher behave in such a manner. The incident became widely known. On January 20, 1993, Respondent's son and the son of Cynthia Williams, another teacher at Pine Lake Elementary School, fought with each other. After the fight, Mrs. Webb, the assistant principal, spoke to Williams and to Respondent and explained that she had investigated the circumstances of the fight, that Respondent's son had started the fight, and that the Williams boy had only defended himself. On the following day, Cynthia Williams waited for the school bus to bring her son from his nearby school to Pine Lake Elementary. When she saw Respondent also waiting for the bus, she knew there would be trouble based on Respondent's reputation and past behavior. Williams asked another teacher to wait with her. When the bus came, Williams and the other teacher walked over to the bus to get Williams' son. Respondent approached them and it was apparent that Respondent was very angry. She began grilling the Williams boy as to why he had been fighting with her son. Mrs. Williams calmly told Respondent that she would take care of it and would speak to her son after they got home. Respondent continued grilling the boy in a very threatening and intimidating manner and shaking her finger in Mrs. Williams' face. As Williams and her son began backing away from Respondent, the other teacher ran to get a principal. As a result of her aggressive behavior, Respondent was given another written directive ordering her to stop intimidating and abusing other faculty members and to conduct herself in a professional manner. Respondent was subsequently given an alternate assignment and was relieved of her teaching duties at Pine Lake Elementary School. In April of 1993 in the late afternoon Respondent returned to Pine Lake to pick up her personal belongings. When she encountered Williams, she told Williams "this isn't over" in such a threatening manner that Williams reported that incident to the principal at Pine Lake Elementary. The principal wrote a letter to Respondent ordering her to stay away from that school. During the week of November 9, 1992, Respondent was on jury duty. Although the courthouse was closed on November 11 and Pine Lake Elementary School was open, Respondent failed to report for work at the school. Instead, she falsely claimed that she had been on jury duty the day the courthouse was closed, in order to receive her regular pay from the School Board. When the principal discovered Respondent's false report, she instructed the staff to report Respondent as having taken a personal day rather than reporting Respondent as having been on leave without pay in order that they could avoid the expected confrontation by Respondent. Yet, in spite of the principal's attempt to be very fair with Respondent, Respondent thereafter kept harassing the attendance staff to pay her for that day. On March 1, 1993, a conference for the record was conducted with Respondent by Dr. Joyce Annunziata, the director of Petitioner's Office of Professional Standards. Because of Respondent's history while employed by Petitioner, she was placed in an alternate work assignment and referred for a medical evaluation to determine her fitness to carry out her duties. The clinical interview and psychological testing revealed that Respondent has difficulty handling stress, avoids dealing with problems, and blames others when problems occur. She has paranoid tendencies and is defiant of authority. Her personality structure is stable, and she is unlikely to change. She should not be in a teaching position but should be in a position where stress is unlikely to occur. Further, Respondent's difficulties with stress, with authority figures, and with co-workers existed well prior to the occurrence of Hurricane Andrew and are not attributable to stress following the hurricane.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed against her in this cause, suspending her without pay up to the date of termination, and terminating her employment by the School Board of Dade County, Florida. DONE AND ENTERED this 21st day of December, 1993, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2452 Petitioner's proposed findings of fact numbered 1-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law and recitation of the testimony. Respondent's proposed findings of fact numbered 1, 16, 21, and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2-5, 8, 9, 11-15, 19, 20, and 23-29 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Respondent's proposed findings of fact numbered 6 and 10 have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact number 7 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 17 and 18 have been rejected as being not supported by the weight of the credible evidence in this cause. COPIES FURNISHED: James C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One 2929 Southwest Third Avenue Miami, Florida 33129 Octavio J. Visiedo, Superintendent School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding is whether Respondent discriminated against Petitioner based upon his handicap in violation of the Florida Civil Rights Act of 1992, as amended ("FCRA"), more specifically Section 760.10, Florida Statutes (2004).2/
Findings Of Fact Petitioner, Dana D. Ripley, was, at all times relevant to this proceeding, certified by the Criminal Justice Standards and Training Commission as a law enforcement officer. He was employed as a police officer by the Lake City Police Department from 1997 until March 2002. On March 15, 2002, Mr. Ripley completed a sworn "pre- application" for a deputy sheriff's position with the PCSO. The pre-application is used as a screening device to reject candidates who are ineligible for employment with the PCSO, such as persons with felony convictions or activities related to illegal drugs. The pre-application asked a series of questions regarding criminal convictions and drug activities. One of the questions was, "Have you ever sold, purchased or offered for sale any illegal drug?" Mr. Ripley circled the answer, "Yes." He indicated that he had possessed steroids "5 to 10 times," the last time being in 1994. In the space provided in the pre- application to explain any "yes" answers, Mr. Ripley wrote, "During my years in university [sic] I purchased and used anabolic steroids to assist my athletic pursuits while in school." Cpl. B. J. Lyons, the PCSO background investigator who oversaw Mr. Ripley's application, testified that the answers regarding steroids were a "concern," but not alone sufficient to stop the application process. As part of the pre-application process, Mr. Ripley attested that he had read the job duties and functions for the deputy sheriff's position and was "capable of performing the duties of the job as described with or without a reasonable accommodation." Nowhere in his pre-application or full application did Mr. Ripley indicate that he had a disability, an impairment of a major life function, or the need for any accommodation. Having met the criteria on the pre-application, albeit with one "concern," Mr. Ripley went on to complete the full application process, which included signing waivers and obtaining a physician's clearance to take a physical abilities test. On October 30, 2002, Mr. Ripley's physician certified that there was "no unreasonable danger of harm" in Mr. Ripley's undergoing the physical abilities test "with/without a reasonable accommodation." On November 25, 2002, Mr. Ripley was given a "Notice of Conditional Offer of Employment" by the PCSO. The conditional offer stated that, if Mr. Ripley satisfactorily completed psychological testing, a psychological interview, a drug test, and a medical examination, he would be eligible for appointment to a deputy sheriff's position by the sheriff. The conditional offer expressly stated that placement in the applicant pool does not assure that the sheriff would appoint the applicant to a deputy sheriff's position. On November 26, 2002, Mr. Ripley took the PCSO's physical abilities test, in which he went through a test course that included running 220 yards, climbing a wall, running over hurdles, crawling under obstacles, dragging a 150-pound dummy a distance of 50 feet, and simulated firing of a police weapon. The maximum acceptable time for completing the test course was six minutes and 30 seconds. Mr. Ripley completed the course in two minutes and 50 seconds, which Cpl. Lyons termed a very good time. Also on November 26, 2002, Mr. Ripley sat for a polygraph examination conducted by Allen Stein, an independent polygraph examiner under contract with the PCSO. Mr. Stein's report stated the following in relevant part: During the pretest interview, Mr. Ripley said he resigned from the Lake City Police Department following a discussion with the Chief of Police in which they agreed a change of scenery would be desirable for him. Mr. Ripley had been absent from work for about a nine month period because of three colon surgeries because of a colitis condition. Following his return to duty, he had an amnesia episode while on duty, which resulted in the meeting with the Chief. It was suggested to Mr. Ripley that the City Manager wanted him to be terminated. In an earlier instance, he fainted as a result of dehydration resulting from the removal of a large part of his large intestine. A blood test was done after he had fainted which disclosed prohibited substances in his system. He had neglected to tell his supervisor about the various controlled substances that he had to take to assist in weaning him from the narcotics that had been prescribed for him following the surgeries. In both cases mentioned above, internal affairs investigations were conducted that resulted in a written counseling and then, the requested resignation. He resigned in March 2002. Mr. Ripley said he has operated a motor vehicle not more than ten times after having consumed enough alcoholic beverages that if stopped, he might have been charged with driving under the influence. The last time was in June 2002. Mr. Ripley said that in 1988 through 1996, he took steroids to assist him in competing in bodybuilding and power weight lifting events. He consumed about two cycles per year. He estimated that he had spent about $800.00 to purchase steroids. Cpl. Lyons was concerned about several of the statements Mr. Ripley made to Mr. Stein during the pretest interview. He took the "change of scenery" in the conversation with the police chief to mean that Mr. Ripley should quit the Lake City Police Department and leave town. This conclusion was supported by the reference to the city manager's wanting Mr. Ripley terminated. Cpl. Lyons believed something was "not right" about Mr. Ripley's having an amnesia episode, but then meeting with the chief, rather than going for medical attention. Cpl. Lyons was concerned about the blood test that revealed the presence of prohibited substances in Mr. Ripley's system. Cpl. Lyons was concerned regarding Mr. Ripley's admission that he had operated a motor vehicle after consuming enough alcohol that he could have been charged with driving under the influence, particularly the admission that he had done so as recently as June 2002, which was after Mr. Ripley applied for employment with the PCSO. Finally, Cpl. Lyons noted that Mr. Ripley's statement that he took two annual cycles of steroids over a period of eight years, ending in 1996, conflicted with his statement in his pre-application that he had possessed steroids only "5 to 10 times," the last time being in 1994. On December 11, 2002, Mr. Ripley and seven other candidates sat for the PCSO's oral examination. Mr. Ripley scored 57 out of a possible 63 points, a passing score, but the lowest of the eight candidates who sat for the oral examination on that day. Cpl. Lyons was surprised at Mr. Ripley's low score because applicants who have prior law enforcement experience usually obtain higher scores on the oral examination than do inexperienced applicants. On or about November 20, 2002, Cpl. Lyons obtained from the Lake City Police Department an offense report regarding Mr. Ripley. On January 25, 2002, at around 4:00 p.m., a Lake City patrol car was dispatched "in reference to a disoriented person running around in the street in his underwear." While the officers in the patrol car were unsuccessfully searching the area to which they had been dispatched, they received a second call concerning the same person. The officers contacted the complainant, who told them she had seen a barefoot man, in long underwear and a shirt, walking down the middle of a residential street mumbling to himself and stumbling around. She saw the man fall several times and was worried he would be run over by a car. She and her son coaxed the man into sitting on their front porch until the police could arrive. The lead officer, Sgt. Marshall Sova, recognized the disoriented man as Mr. Ripley, who said he was working on a robbery case. Sgt. Sova walked Mr. Ripley to the patrol car and placed him in the back seat, told the other officer, Misty Gable, to call Columbia County EMS to the scene, then radioed his lieutenant to come to the scene. Sgt. Sova reported that Mr. Ripley was hallucinating, pointing to the empty yard next door, and telling Sgt. Sova, "There they are, go get them," believing he was seeing the men who "committed the robbery." Sgt. Sova sent Officer Gable to Mr. Ripley's residence, one street away from where he was apprehended, to make sure it was secured. Officer Gable drove to Mr. Ripley's house and found the front door standing wide open. She looked inside and saw "no fewer than two hand guns, two full gun magazines, four boxes of ammunition, two police radios, and the keys to the Lake City Police squad car that was parked in his driveway, along with household electronics such as a large TV, video game players and games, a cable box, etc., in plain view from the open front door." Officer Gable radioed a report to Sgt. Sova, who told her to wait there until he and their superior officer, Lt. Dubose, could come over to the house. Columbia County EMS arrived at the scene and carried Mr. Ripley on a stretcher to the rescue vehicle. The paramedics checked Mr. Ripley's blood sugar and found that it was low. Mr. Ripley was transported to the Lake City Medical Center. Lt. Dubose arrived and went with Sgt. Sova to Mr. Ripley's residence for the purpose of obtaining the Lake City Police Department property that Officer Gable reported was inside Mr. Ripley's open apartment. The house was in a state of complete disarray, with standing water in the bathroom. In addition to the Lake City Police Department property, the officers found several prescription drug bottles and body- building supplements. All of the prescription drug bottles were empty, including one that had been refilled with 30 pills two days prior to these events. The officers took possession of the police department property, secured Mr. Ripley's apartment, then returned to headquarters. At the hearing, Cpl. Lyons of the PCSO testified that this police report from the Lake City Police Department caused him great concern about Mr. Ripley's suitability for the position of deputy sheriff. However, nothing in the report caused him to suspect that Mr. Ripley was disabled. At the hearing, Mr. Ripley recounted his medical history and provided his version of events in Lake City. In June 2000, Mr. Ripley suffered a severe sprain of his right ankle while on duty. The medications prescribed for the pain in his ankle exacerbated a colitis condition for which Mr. Ripley was already taking medication. The aggravated colitis required three hospitalizations in the course of one month. In late August 2000, Mr. Ripley underwent surgery to remove his large intestine and rectum, then an ileoanal J-pouch anastomosis, the surgical construction of a fecal reservoir using the lower end of the small intestine. For the better part of a year after the surgery, Mr. Ripley was prescribed large doses of pain medications. He qualified for long-term disability for a period of four months and was sporadically off work for nine months. He returned to work full time in March 2001, then was back in the hospital during June 2001. At the end of July 2001, Mr. Ripley returned to work. His physicians were attempting to wean him from the opiates he was taking for pain. His physician wrote to the Lake City Police Department in support of Mr. Ripley's request for either light duty or night duty. The department placed him on night duty. Mr. Ripley testified that he struggled with his recovery for two years. He suffered from pouchitis, an inflammation of the ileal reservoir created by the reconstructive intestinal surgery. Mr. Ripley suffered from the flu in January 2002 and stated that he was in a state of dehydration when found wandering his neighborhood on January 25, 2002. On January 29, 2002, four days after the "underwear incident" described above, Mr. Ripley entered a substance abuse treatment program for his dependence on prescription medications at Shands at Vista, in Gainesville, Florida. He successfully completed the program on February 22, 2002. Mr. Ripley did not inform the PCSO of his participation in or completion of this program while he was an applicant for a deputy sheriff's position. The PCSO did not learn of Mr. Ripley's treatment until after he filed the amended charge of discrimination that initiated this proceeding. The incident of January 25, 2002, triggered an internal affairs investigation by the Lake City Police Department. At the conclusion of the investigation, several charges against Mr. Ripley were sustained, including conduct unbecoming a police officer, immoral conduct, possessing prescription drugs in a police station without notifying his supervisor, and violations of department policy on the use and secure possession of weapons. The Lake City Police Department internal investigation report form dated March 1, 2002, contains the following notation: "Actions were sustained; employee resigned prior to disciplinary action." At the hearing, Mr. Ripley's chief contentions were that the PCSO was ready and willing to hire him, that it was dissuaded from doing so entirely due to the Lake City Police Department's report of the January 25, 2002, incident, and that this incident was caused by his disability. The disability claimed by Mr. Ripley was prescription drug dependency, subsequently rehabilitated through his successful completion of the Shands substance abuse treatment program in February 2002. Accepting arguendo that Mr. Ripley's claimed disability meets the criteria of "handicap" for purposes of Subsection 760.10(1)(a), Florida Statutes, the evidence did not establish that the PCSO was ever made aware of this disability, much less based its decision not to hire Mr. Ripley on that disability. Cpl. Lyons, who was Mr. Ripley's main point of contact with the PCSO, was unaware of any of Mr. Ripley's medical records, except for the medical clearance form authorizing Mr. Ripley to take the physical abilities test. In their discussions, Mr. Ripley never mentioned to Cpl. Lyons that he had a drug dependence problem or any other disability, nor did he request any form of accommodation. Cpl. Lyons believed Mr. Ripley to be "very physically fit," as evidenced by his exceptionally good time in the physical abilities test and saw nothing that made it appear Mr. Ripley would need an accommodation. Cpl. Lyons testified that Mr. Ripley's medical condition was not considered because it could not be used as a factor in eliminating Mr. Ripley from consideration.4/ Cpl. Lyons brought Mr. Ripley's file to the attention of Lt. Dean LaChance, his superior in the PCSO's Human Resources Division. Cpl. Lyons told Lt. LaChance that one of the applicants had been seen "in his neighborhood running around in his underwear" and that Lt. LaChance might want to look at Mr. Ripley's file and make a hiring decision. Cpl. Lyons sent the file to Lt. LaChance, attaching a note that stated, "Prior [experience with] Lake City. Need to read his [polygraph report]. Also see the report from Lake City [Police Department] . . . Not the greatest pick so far." Lt. LaChance reviewed Mr. Ripley's file, including the pre-application and polygraph. Lt. LaChance recommended that Mr. Ripley's file be closed, meaning that Mr. Ripley should be removed from the pool of eligible applicants. Lt. LaChance based his recommendation on the facts that Mr. Ripley's oral examination scores were low and that "we had better applicants in the file," as well as on the "underwear incident." Lt. LaChance also noted the discrepancies regarding steroids between Mr. Ripley's polygraph examination and his pre- application. Lt. LaChance noted other problems with Mr. Ripley's polygraph: his statement that the city manager wanted him fired; the fact Mr. Ripley resigned during an open internal affairs investigation; Mr. Ripley's "change of scenery" language, which Lt. LaChance took to mean that Mr. Ripley was told to quit or be fired; and Mr. Ripley's admission that he had operated a motor vehicle at least ten times under the influence of alcohol, even while he was going through the PCSO's background investigation. Lt. LaChance never met Mr. Ripley and never spoke to him prior to the hearing in this matter. He had no knowledge that Mr. Ripley claimed a disability and saw nothing in Mr. Ripley's file to make him suspect that Mr. Ripley had a disability. He had no knowledge that Mr. Ripley had gone through a drug abuse treatment program. The only medical information available to Lt. LaChance was Mr. Ripley's polygraph statements regarding his prior surgeries. Based on Mr. Ripley's statements, Lt. LaChance considered Mr. Ripley's medical condition to have been temporary and "fixed" by his surgery. Mr. Ripley had done a "great job" on the physical abilities test, and Lt. LaChance did not consider him to be disabled in any way. Lt. LaChance testified that it is the PCSO's general practice not to hire people who have been terminated or have resigned under investigation from other law enforcement agencies. He stated that his agency has more than enough qualified applicants and has no need to hire an applicant with "the kind of baggage" that Mr. Ripley presented. Mr. Ripley believed that part of the "understanding" between him and the Lake City Police Department was that the internal investigation report of the January 25, 2002, incident would not be circulated to potential employers. This belief explains why Mr. Ripley apparently thought he could finesse the question of why he resigned with casual references to a "change of scenery," and why Mr. Ripley did not mention his prescription drug dependency and rehabilitation in his PCSO application. Based on the foregoing Findings of Fact, it is found that the PCSO had no knowledge of Mr. Ripley's claimed disability. No PCSO employee perceived Mr. Ripley as having a disability. Mr. Ripley's application file was closed based on factors unrelated to his alleged disability.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 18th day of March, 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 18th day of March, 2005.
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Did the Polk County School Board have just cause to justify its termination of Respondent's employment?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary and adult education in Polk County, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent Stephen Anderson has been employed in the Polk County School District for five years. Prior to his employment with the Polk County School District, Respondent taught school in the State of Massachusetts for 22 years. Respondent has a professional services contract of employment with the Polk County School District. At all times pertinent to this proceeding, Respondent was a GED classroom instructor and work study coordinator at Bill Duncan Opportunity Center (Duncan Center). During Respondent's tenure at Duncan Center, his classroom responsibilities ended at 11:00 a.m., after which he acted as work study coordinator until the end of his workday at 3:15 p.m. However, at times Respondent's coaching duties at other schools required that he leave Duncan Center before the end of the workday. On April 11, 1996, sometime between 12:00 noon and 1:00 p.m., Respondent left Duncan Center for the purpose of going to Lake Gibson High School (Lake Gibson) to sign award certificates for members of the Lake Gibson girls' basketball team that he coached. The award certificates were to have been presented at the banquet earlier that week, but the certificates were not delivered to the banquet for Respondent's signature as planned. Therefore, Respondent made arrangements to be at Lake Gibson between 1:30-1:45 p.m. in the afternoon of April 11, 1996, to sign the certificates. Throughout his tenure at Duncan Center, Respondent had routinely left Duncan Center early to attend to his coaching responsibilities at Lake Gibson and another school where he had coached basketball earlier. Greg Bondurant, principal of Duncan Center, was fully aware of Respondent's practice of leaving Duncan Center early to attend to his coaching duties, which included times before and after the basketball season at Lake Gibson, notwithstanding the testimony of Greg Bondurant regarding times before and after the basketball season to the contrary, which I find lacks credibility. Furthermore, Respondent advised his teacher's aide, John R. Edwards, that he was leaving early the day in question for the purpose of going to Lake Gibson. Although Respondent did not sign out on the afternoon of April 11, 1996, it appears from the record that signing out was not a procedure that either Respondent or other teachers at Duncan Center took seriously. In fact, Mr. Bondurant was aware that teachers at the Duncan Center were not signing out on a regular basis. Apparently, "signing out" was not a major concern at Duncan Center. Upon leaving Duncan Center, Respondent proceeded down Reynolds Road in the direction of Highway 92. Upon arriving at Highway 92, Respondent turned right (east) on Highway 92 intending to go to Wizard Golf Store to possibly purchase a golf club. Upon approaching Wizard Golf Store, Respondent noticed a "closed" sign in the window, and did not stop. Thereafter, Respondent proceeded east on Highway 92 to the next left turn, which is Saddle Creek Road, intending to go through to Combee Road, which would take him to Lake Gibson. However, at this point, Respondent developed an urgent need to urinate. Since sometime around June 1995, Respondent has suffered severe problems with his urinary tract, and has suffered from severe abdominal pains caused by an intense feeling of a need to urinate frequently. Respondent has difficulty in beginning the urine flow, as well as stopping the urine flow, which has resulted in Respondent urinating on himself on different occasions. At times, Respondent was required to stroke (milk) or shake his penis in order to start or stop the flow of urine or to drain the urine from his penis after urinating. Robert Bevis, M. D., specializes in internal medicine, and has treated Respondent for his urinary tract problems since February, 1991. Dr. Bevis believes that Respondent could be required to stroke the shaft of his penis to empty his urinary tract. Dr. Bevis has treated Respondent with a variety of drugs, which have not been successful, and believes that surgery may be necessary. Upon turning onto Saddle Creek Road, Respondent looked for a place to urinate. Although he saw the bait shop, Respondent did not attempt to go to the bait shop to urinate because it did not occur to him that the bait shop would have a public bathroom. Respondent did not see a portable public toilet across from the bait shop on Saddle Creek Road or anywhere else. While there was testimony of a portable public toilet being in the area four days after the incident, the portable public toilet had been removed prior to the hearing, and there was no evidence that the portable public toilet was present on April 11, 1996. Respondent proceeded on down Saddle Creek Road for approximately six tenths of a mile to an area of Saddle Creek Park that Respondent believed to be isolated, and would provide the necessary privacy. Respondent pulled into an area where he saw no cars or people. This area of the Saddle Creek Park is commonly referred to as the Point. Unbeknown to Respondent at that time, the Point is an area of the park known by law enforcement officers and others in the community to be frequented by homosexuals seeking to engage in lewd activity. Respondent exited his car and walked up a path with the intention of urinating. As Respondent walked up the path, he passed a male individual who was standing with his back toward Respondent just off the pathway, approximately 20 feet. Respondent did not talk to, or have any contact with, this individual, but proceeded on up the path pass this individual, following the path as it curved to the left, out of the individual's line of sight. Upon reaching this area, Respondent unzipped his pants, took out his penis, and, after some time, began to urinate. As Respondent looked to his left he noticed a male individual come around the corner and stop. Respondent did not recognize this individual as the individual he had seen earlier because he had not seen that individual's face. Respondent stared at this individual because he was shocked to see this individual, and uncertain as to why the individual was there. Respondent then did what he needed to do to stop the flow of urine, placed his penis in his pants and zipped his pants. At that point the individual had walked away from Respondent back down the path. As Respondent walked back down the path he noticed a vehicle pull up parallel to his vehicle. Respondent moved on down to the area where he saw the first individual. Although Respondent could see two individuals in conversation, one standing outside the vehicle and the other individual inside the vehicle, Respondent was partially secluded by a thicket. Not sure of what was going on, but still feeling the intense urge to urinate, Respondent began urinating while watching the two individuals over his right shoulder. After Respondent finished urinating, he did what he needed to do to drain his penis of urine and zipped his pants. At that point, the two individuals were approaching Respondent. The individuals identified themselves as undercover police officers and placed Respondent under arrest, charging him with two counts of exposing his sexual organs and two counts of lewdness. The charges were predicated on the officers' belief that Respondent was masturbating. The arrest occurred at approximately 1:30 p.m. Respondent was released later that day on his own personal recognizance. Respondent protested his innocence to the arresting officers, explaining to the officers his problem with urinating, but was told that he was in the wrong place at the wrong time, and that they were arresting everything that moved. Although the testimony of the police officers is not totally accepted, it is not found that their testimony was pure fabrication. Rather, it is found that, due to their mindset and expectations, the police officers misinterpreted much of the conduct they observed involving the Respondent on April 11, 1996. On that day, the police officers were patrolling Saddle Creek Park, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual) activities for which Saddle Creek Park, specifically the Point, had become notorious to law enforcement and to others. The police officers involved in this case expected users of park to know its reputation, and they expected to find homosexual men using the park for notorious purposes. As a result, knowing nothing about Respondent, they misinterpreted innocent behavior of the Respondent as evidence of criminal conduct. They attributed little or no importance to the behavior of Respondent that was evidence of his innocence of criminal charges. There is no evidence in the record of what became of Respondent in the criminal process after his arrest. The headlines of the newspaper articles appearing in the Lakeland Ledger and the Tampa Tribune concerning the undercover operation and subsequent arrests were: Corrections superintendent charged in sting and Warden arrested in sex sting, respectively. The Respondent's arrest is covered in each article at the end of the article on the follow-up page. Apparently, the Correction Superintendent's arrest was more newsworthy than Respondent's arrest. Greg Bondurant, Paul Wenz and James Lemanski, the principal and two teachers at Duncan Center, respectively, all concluded that Respondent's effectiveness as a teacher at Duncan Center had been seriously reduced or impaired by the notoriety of this incident. Their conclusions were reached on the basis of shock and disbelief, by students and teachers alike, that Respondent had been arrested; "jokes made and stuff about Saddle Creek Park, and stuff like that"; and that "everybody became the brunt of jokes." These witnesses considered this a normal reaction for students and teachers alike. Greg Bondurant testified that after a couple or three days "everything died down after that." Some members of Greg Bondurant's church questioned him about what was going on at Duncan Center. However, there was no direct testimony from students or members of the community, outside the school system, to support these witnesses' conclusion that Respondent's effectiveness as a teacher had been seriously reduced or impaired. Respondent has been married for 30 years and has one child 29 years of age. Respondent was an exemplary employee for 22 years in Massachusetts, and has been an exemplary employee for the past five years in Polk County. Respondent was the 1994-95 teacher of the year at Duncan Center. Respondent denies he is homosexual or bisexual, and claims he has never engaged in any homosexual behavior. The evidence supports those claims. Respondent's wife has never witnessed Respondent engage in any homosexual behavior. Many of Respondent's friends testified that Respondent is a man of high moral character, and none has ever witnessed Respondent engage in any immoral or illicit behavior. James Dean, principal at East Area Opportunity School in Polk County and past principal at Duncan Center during the first part of Respondent's tenure there, has had a personal and professional relationship with Respondent for five years. Dean considers Respondent to be a man of high moral character and given the opportunity would hire Respondent to teach at his school. There is no evidence in the record from any member of the community unrelated to Petitioner to support the Petitioner's conclusion that Respondent's effectiveness has been impaired or has been seriously reduced. On the other hand, several members of the community, some of them fellow teachers, believe that Respondent was an excellent teacher up to the incident and would continue to be an excellent teacher if reinstated. Furthermore, these members of the community believe that Respondent's effectiveness as a teacher in the community has not been impaired or seriously reduced, and if reinstated he would be an asset to the school system and to the community. From all accounts, Respondent is an excellent teacher. Taken together, the evidence is clear that on April 11, 1996, the Respondent entered Saddle Creek park for the express purpose of relieving himself because of an intense desire to urinate caused by a prostate problem. Respondent's manner of starting and stopping the urine flow and the clearing of his penis of urine after urinating was also necessary due to his prostate problem. Furthermore, there was no intent on the part of Respondent, while in Saddle Creek Park on April 11, 1996, to expose or exhibit his sexual organ in a vulgar or indecent manner. Likewise, the evidence is clear that Respondent's effectiveness as a teacher has not been seriously reduced or impaired as a result of the Respondent's arrest on April 11, 1996. Furthermore, the record will not support a finding that Respondent left his worksite early without authorization on April 11, 1996. Petitioner's evidence failed to prove the allegations filed against Respondent. The ultimate findings of fact are based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officers. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn if Respondent engaged in, or had a reputation for engaging in, the kind of conduct of which he was accused.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay. RECOMMENDED this 28th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Honorable John A. Stewart Superintendent of Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Donald H. Wilson, Jr., Esquire 150 East Davidson Street Post Office Box 1578 Bartow, Florida 33831-1578 Mark Herdman, Esquire 34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
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.
