The Issue The issues to be determined in this proceeding are whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (e), as alleged in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent holds Florida Educator's Certificate 1011542, covering the areas of Elementary Education and Social Science. Her certificate is valid through June 30, 2018. At all times relevant to these proceedings, Respondent taught sixth-grade social studies at Bob Graham Education Center (Bob Graham) in the Miami-Dade County School District (the School District). Respondent was employed by the School District for approximately eight years. This case involves events that happened while a substitute teacher was in charge of Respondent's class, and Respondent's reaction to those events upon her return to school. Respondent was absent from school on Tuesday, November 26, 2013, and left lesson plans for the substitute teacher handling her classes. The substitute teacher assigned to her classroom was a young male teacher. The substitute teacher gave the students an assignment to complete, and told them that once all of the students in the class completed their work, they could have free time. During the free time, students engaged in a variety of activities typical of sixth graders. Some played games on the computers in the room, some watched prank videos played by the substitute, some danced, some sat or stood on desks, some wrote on the smart board, and some played with the cheerleading pom poms stored in the room. At least one student used her phone to take pictures and gave her phone to another student to take a picture of girls standing on the desks. Apparently one of the girls, who did not testify, posted one or more of the pictures on social media. The social media posts were seen by Respondent. The students who testified recognized that their behavior that day was not in keeping with the strict behavioral standards maintained at Bob Graham. One student described the prank videos as not appropriate for school, and another acknowledged that use of cell phones during the day was prohibited. No one maintained that it would be appropriate to stand on a desk. As affirmed by one student, the substitute lost control of the classroom. When Respondent returned to school the following day, she became aware of what had happened in her classroom that Tuesday. The more credible evidence supports the conclusion that she saw the pictures posted on social media. While Respondent claimed that her room was in disarray when she returned, each of the students who testified denied that they left the room in that condition. Only three students testified, C.C., S.G., and N.C., and these students were all students in Respondent's second period class. It is possible that the room was in disarray based on the behavior of students in other class periods. Respondent was unhappy with the condition of her room and with the reported behavior of her students during her absence. N.C. testified that on Wednesday morning, before the second period class, word had circulated around school that Ms. Rosa knew what they had done in class the day before, so the students believed that they were going to get in trouble. When class began, Ms. Rosa told the students that she was upset with their behavior from the day before. Descriptions from the students varied, one describing her as acting like she was happy they were all going to get in trouble, and threatening them all with detentions or in-school suspensions, while another student described her as yelling at the class as a whole, but not yelling at individual students. Whether she actually raised her voice at them or whether the students were reacting to the message she was delivering is not clear. In any event, the more persuasive evidence indicates that Respondent called each child's name and asked what they had done the day before. After hearing from each student, she had some of the students line up and go to the principal's office. How many students actually went to the office is also unclear: the description ranged from all but three to only a few. At the office, the students met with Assistant Principal Jesus Mesa, who apparently issued in-school suspensions to some and detentions to others.1/ These were students who had never been in significant trouble before. Getting an in-school suspension meant that they would not be permitted to participate in clubs or remain in the National Junior Honor Society. It appeared that this consequence of the punishment they received is what upset the students the most. There were reports that Ms. Rosa used the words "stupid," and "ratched," as well as "shit" while she was talking to the students. N.C. testified that she told the class as a whole that they were stupid for thinking she would not find out what happened. There was no testimony that she described any one student as stupid. All three students testified that she used the term "ratched," although one of them acknowledged that his written statement to that effect was based upon what others told him, as opposed to hearing the term himself. None of the students knew what the term meant, other than it had a negative connotation, and none identified the context in which the word was used. The principal, Yecenia Martinez-Lopez, described the term as meaning someone was "low class" or trash. Urbandictionary.com, referred to by Ms. Rosa in Respondent's Exhibit 1, defines the word as being slang for "wretched." With respect to the use of the word "shit," C.C. did not testify that the word was used. S.G. stated that he had heard Respondent use the term, but did not testify that she used it on the day in question, and said it had never been directed toward him. He did not identify when or to whom the word was used. Similarly, N.C. testified that Respondent had used the term, but also did not give any context for its use and her written statements did not reference the term. N.C. claimed that she just remembered the use of the term while reading her statements during the hearing. Given that the incident occurred more than four years before her testimony, this claim is not plausible or persuasive. No student testified that they were embarrassed or humiliated by Respondent's behavior that day. One student described Respondent's behavior as "rude and unacceptable," and another indicated that she was scared about explaining to her parents the possibility that she would not be able to participate in clubs. The more persuasive testimony was that students felt the punishment they received (ironically, from Mr. Mesa as opposed to Respondent) was out of proportion for what happened, and were concerned with the effect an in-school suspension would have on their ability to participate in extracurricular activities. Several students went home and complained to their parents about what happened that day. Whether they were complaining about Ms. Rosa's treatment of them, about the punishment they received, or about being reported to the front office is not clear. Likewise, the reaction of the various parents is also somewhat unclear. N.C. testified that she knew the parents were talking amongst themselves, and that the parents thought that there should be consequences for the students' behavior, but that an in-school suspension was a whole other step. From N.C.'s view, the parents' concern went from concern about the level of punishment to a complaint about Ms. Rosa. What any of the parents actually thought or said remains a mystery, because no parent testified at hearing. However, on Monday, December 2, 2013, following the Thanksgiving weekend, approximately 20 parents of students in Respondent's class went to the school and met with the principal, Ms. Martinez-Lopez, demanding that their students be removed from Ms. Rosa's class. As a result of their complaints, which are identified only by hearsay in this proceeding, the punishment for some, if not all, of the students affected was downgraded to a detention. Ms. Martinez-Lopez contacted the School District's north region office to report the incident. Ms. Martinez-Lopez was directed that the matter should be handled as an administrative review, meaning she should investigate it as opposed to having it investigated by the School District, and forward her findings to the School District. Ms. Martinez-Lopez collected statements from the students in Respondent's class and prepared a report of her findings. As a result of her investigation, Respondent was issued a reprimand, and moved from teaching sixth grade to teaching second grade. No other discipline was imposed. There are two sets of statements related to this incident: one set collected by Ms. Martinez-Lopez from December 4, 2013, through December 11, 2013, and a second set collected by the Department of Education on October 10, 2014. There was no evidence presented regarding the method Ms. Martinez-Lopez used to collect the first set of statements. With respect to the second set of statements, S.G. testified that multiple students were in the same room filling out the statement at the same time. N.C. testified that she, C.C., and S.G. were called out of their English class and went to the office together, but were not in the room together when they made the statements, and did not talk to each other about what was happening. S.G.'s description of the events was the more credible of the two. Respondent is no longer teaching in the School District. She took a leave of absence after the 2013-2014 school year, and then left the School District to take a position with United Teachers of Dade. She denies that she used profanity toward the students in her class, and contends that the events as described by the students did not happen. She does acknowledge asking each student what they had done the day before and having many of the students go to the principal's office.2/ Respondent was clearly upset by the events that took place in her classroom and expressed her displeasure to her students. There is persuasive evidence that she told them in no uncertain terms that there would be punishment imposed for their behavior. There is not clear convincing evidence that Respondent embarrassed, mocked, and disparaged students, or directed profanity toward them. Likewise, it was not demonstrated by clear and convincing evidence that Respondent's conduct reduced her effectiveness as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of March, 2018.
The Issue Whether Respondent violated sections 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(2)(a)1. and 6A-10.081(2)(c)1., as alleged in the Administrative Complaint; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Based on the evidence, testimony, and stipulated facts, the following Findings of Fact are made. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Upon a finding of probable cause, Petitioner is then responsible for filing a formal complaint and prosecuting the complaint pursuant to chapter 120, if the educator disputes the allegations in the complaint. Respondent holds Florida Educator Certificate No. 834897, covering the areas of elementary education, English for Speakers of Other Languages (“ESOL”), and varying exceptionalities, which is valid through June 30, 2023. At the time of the allegations in the Administrative Complaint, Respondent was employed as an exceptional student education (“ESE”) teacher at Wyomina Park Elementary School (“WPES”) in the Marion County School District (“MCSD”). Ms. Miller has served as an elementary education teacher since the 2000-01 school year. Thus, she has a 20-year career with MCSD. From 2008 to 2018, Respondent taught third, fourth, and fifth grades at Reddick Collier Elementary (“Reddick Collier”’). Since she holds certification in ESE, she also taught ESE inclusion students in her general education classrooms. However, she has never taught a classroom of only ESE students. In 2018, Respondent’s value-added model (commonly referred to as VAM) scores rendered her ineligible to continue teaching at Reddick Collier because it was one of the District’s lowest performing schools. As a result, she was involuntarily transferred to WPES. Ms. Baxley testified that Respondent was initially assigned to teach students with academic issues, not behavioral issues. The initial assignment was consistent with her experience and previous work with ESE inclusion students. Respondent had maintained certification in ESE so that she could better serve academically low-performing ESE students in a general education inclusion environment. While Respondent had training in an inclusion environment, she did not have training or certification in Treatment and Education of Autistic and Communication Handicapped Children (“TEACCH”) or Crisis Prevention Intervention de-escalation techniques for use with students with behavioral issues. Ms. Baxley believed that Respondent had been trained to work with children with behavioral issues. After the initial assignment, students were reassigned between Ms. Miller and Patricia Poag. Respondent became responsible for only students with behavioral issues. Some of the students assigned to Respondent had extensive behavioral issues to the extent they required medication treatment. Respondent’s new assignment was a kindergarten through second grade self-contained ESE class of 12 to 13 students. Generally, a self- contained ESE classroom is a group environment with students who have special needs. Respondent’s students required increased supervision, structure, visuals, and very specific direct instruction. Respondent, Ms. Davis, and Ms. Poag testified that the classroom assignment was very “challenging, overwhelming, and distressing.” The new classroom structure included six or seven more students than previously assigned. Respondent had one paraprofessional to assist with supervision of the students. Respondent requested additional staff support, but never received it. In addition to learning to navigate the struggles with the student’s behavioral issues, Respondent was struggling with paperwork. Respondent made the effort to get help with completing necessary documents and learning how to complete IEP’s and behavior plans. She had no experience in completing these documents, or in working with “severe maladaptive behaviors” before being assigned to WPES. Allegations Involving Classroom Management As an ESE instructor, Ms. Miller’s primary responsibility was to ensure compliance with services or accommodations required for ESE students assigned to her classroom. Gina Gazzaniga is the MCSD ESE specialist. Her primary responsibility is to ensure compliance with services/accommodations required for all ESE students. Ms. Gazzaniga visited Respondent’s classroom. While in Respondent’s classroom, Ms. Gazzaniga observed students run on tables, throw items, and elope from the classroom unsupervised. Ms. Gazzaniga testified that while students were engaged in this conduct, Respondent did not intervene. Ms. Gazzaniga also testified that when students eloped from the classroom, they would typically go to the Guidance office or the Dean’s office. Ms. Gazzaniga had the Behavior Team (behavior tech, behavior specialist and analyst, and school academic coaches) assist with structure and behavior/classroom management strategies in Respondent’s classroom. The team implemented procedures to help prevent students from eloping. However, Respondent would change the practices the behavior team implemented. Respondent testified that some of the practices put into place were not effective. For example, when tables were lowered, the students increased their jumping from table to table. In addition, the assistance button was not within the reach of the teachers in the classroom. Ms. Gazzaniga’s overall assessment was that she saw “limited improvement, or refusal to follow taught strategies.” Other members of the WPES administration expressed concerns about Respondent’s classroom management. While visiting Respondent’s classroom, Ms. Baxley, along with Kendra Hamby, saw student W.H. pulling the hair of M.D. W.H., a male student, dragged M.D., a female student, by her hair as she screamed. Ms. Baxley testified that she heard Respondent say “stop.” Ms. Baxley then approached the students and removed W.H.’s hand from M.D. so that he would “stop pulling M.D. around like a caveman on the floor.” Ms. Baxley testified that Respondent did not intervene to help M.D., but rather “she just stood there.” Ms. Hamby testified that “Ms. Miller was standing there, not intervening, not saying or doing anything. So that was extremely concerning.” On another occasion, while in Respondent’s classroom, Ms. Baxley saw students hitting each other with containers. Ms. Baxley testified that Respondent did nothing to intervene. Respondent testified that she approached the students and instructed them to return the containers. Jennifer Foster was a paraprofessional assigned to Respondent’s classroom. On one occasion two students were running around the room, fighting, and chasing each other. Ms. Foster tried to “get in the middle to separate them and they both ran behind the big solid wooden table.” When Ms. Foster went in front of the table in an effort to separate them, the two students picked up the table and tossed it over on the side. Ms. Foster was able to move one foot out of the way, but the table landed on her other foot. Ms. Foster testified “I eventually got up and hobbled over to push the panic button and asked for assistance.” Her foot was injured as a result of the incident involving the students. Ms. Foster indicated that Respondent did not assist her. Allegations Involving Failure to Supervise Students In addition to concerns about classroom management, the Administrative Complaint alleged Respondent failed to supervise students. One of those incidents involved K.C. K.C. was one of Respondent’s kindergarten students. He is an ESE student with a medical condition. On September 6, 2018, a teacher informed Assistant Principal Troy Sanford that Respondent’s student, K.C., was found standing at the exit door of a hallway that opens to the playground. Mr. Sanford saw K.C. approaching the exit doors to the playground alone at 11:24 a.m. K.C. stood there alone until 11:29 a.m., at which time the teacher spoke to K.C. After consulting with another teacher, Ms. Hawthorne, about where K.C. belonged, the teacher took him to Respondent’s classroom. Respondent denied allowing K.C. to stand alone in the hallway for several minutes. She testified that while standing at her classroom door, awaiting the arrival of students coming from the restroom, K.C. began to walk from Ms. Davis toward her. This was customary for her students if children needed additional time in the restroom. As K.C. got close to Respondent, L.G.R. began climbing on the top shelf of a bookcase in the classroom. Since their routine was for the students to come into the classroom, she assumed K.C. would follow the customary practice and enter the classroom. Respondent testified that she made a judgment call to turn her attention to L.G.R. to ensure his safety and prevent harm to him. Instead of entering the classroom, K.C. walked down the hallway. Based on the totality of the circumstances, Respondent’s actions were reasonable. A second incident involved a different student. Two first-grade teachers, Nancy P. Neal and Ireina Hawthorne, were outside on the playground with their students. When recess was over, they were gathering their students and doing a head count to go back inside to their classrooms when they noticed there was “an extra child” in line. The student did not belong in their classroom. The student was nonverbal so they could not determine to which classroom he belonged. Ms. Hawthorne assumed that he belonged in Respondent’s class and took the student to Respondent’s classroom. When Ms. Hawthorne took the student to Respondent’s classroom, Respondent “ushered him into the classroom.” Respondent testified that she was in the hallway, counting her students before going to her classroom. She explained that she had a substitute paraprofessional, Ms. Foster, who did not know all of her students. In addition, this was the first time she had Ms. Foster serve as a substitute. To help remedy the issue regarding the student left outside, Respondent asked her assigned paraprofessional not to take breaks or lunch during recess. Whether Respondent was in her classroom (as stated by Ms. Hawthorne) or in the hallway, the student was left outside without her supervision, which could be harmful to the student’s safety. A third incident related to supervision involved student L.G.R. On October 19, 2019, L.G.R. entered Ms. Gazzaniga’s office and hid under a table. The evidence offered at hearing demonstrated that when the student eloped from the classroom, Respondent immediately followed the student into the guidance office. However, she did not see the L.G.R., so she continued to search for him. A minute or so later, Ms. Gazzaniga saw Respondent walk down the hallway towards the main office. Respondent later learned the student was in the guidance office at the time she initially searched that location. However, Ms. Gazzaniga did not alert Respondent that L.G.R. was in her office. Ms. Gazzaniga testified that she “kept an eye on him while he was there.” After a short time, Ms. Gazzaniga went over to L.G.R. and spoke to him. He came from under the table and went to the doorway of the office. At the same time, Respondent was walking back down the hallway and saw L.G.R. and took him back to her classroom. The credible evidence demonstrates that Respondent made reasonable efforts to locate the student by searching for him immediately after his elopement from the room. DP-3 Assessment On September 10, 2018, Ms. Scott gave Respondent a Developmental Profile Third Edition (“DP-3”) to complete for student A.M.S. Students who are developmentally delayed must have a DP-3 completed for re-evaluation to determine what ESE services need to be continued. A DP-3 is an assessment tool used to evaluate nonverbal or low achieving students that have not reached the cognitive level to take an IQ test. MCSD uses the DP-3 to assess the student’s level of achievement. The DP-3 assesses five areas of development, including the child’s cognitive functioning, physical development, communication skills, social, emotional, and adaptive skills. The assessment is completed by completing a series of questions on whether a student can or cannot perform a particular task. Respondent returned the DP-3 to Ms. Scott on September 25, 2018. Respondent circled items indicating a “yes” response. During the hearing, however, Respondent acknowledged the student would not be capable of performing the tasks. In addition, Ms. Scott did not believe A.M.S. could perform the skills for which Respondent answered yes. Based on the evidence offered at hearing, some of the responses Respondent provided on the DP-3 were inaccurate. Performance Assessments Throughout her career, Respondent had been assessed as progressing or effective related to instructional practice as an educator. For the 2018 informal classroom teacher instructional assessment performed by Ms. Baxley, Ms. Cino, and Mr. Sanford, Ms. Miller was assessed as unsatisfactory in multiple areas.1 However, in the areas of criticism, it was also noted that Ms. Miller was engaged in instruction of students. Interestingly, she was criticized for a child wandering to her desk, and then, criticized for leaving the group of students she was working with to redirect the wandering student. In another instance, the observers were critical of a Positive Behavioral Interventions Support plan but Ms. Miller was never trained in the area of behavioral management. For the 2019 informal classroom teacher evaluation, Ms. Miller was assessed effective in each category, including areas where she was assessed unsatisfactory in 2018. Disciplinary Action at WPES For the first time in her career, Respondent received disciplinary action while working at WPES. On or about September 10, 2018, Respondent was issued an oral reprimand for purported failure to supervise the students assigned to her. On or about September 26, 2018, Respondent was issued a written reprimand for misconduct for purported falsification of documents. On or about October 26, 2018, Respondent was issued a written reprimand for alleged failure to supervise a student assigned to her. On or about November 26, 2018, Respondent was issued Step One progressive discipline for substandard performance due to behavioral concerns in her classroom and failure to report grades. On or about December 11, 2018, Respondent was issued a Step Two verbal reprimand regarding substandard performance. 1 In 2018, Ms. Miller was assessed unsatisfactory in the following areas: 2b. establishing a culture for learning, managing student behavior; 3b. using questioning and discussion techniques; and 3c. engaging students in learning. On or about December 18, 2018, Respondent was issued a Step Three progressive discipline written reprimand regarding substandard performance. Respondent’s educator certificate has no prior discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that: Respondent violated the statues and rules as referenced above; Respondent be placed on probation for a period of two years, with conditions to be determined by the Education Practices Commission. DONE AND ENTERED this 31st day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2021. Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Lisa M. Forbess Interim Executive Director Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint issued February 17, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Education is the state agency responsible for investigating complaints against teachers holding Florida educator certificates for violations of Section 1012.795, Florida Statutes, and, in those cases in which probable cause is found, the Commissioner is responsible for filing a formal complaint and prosecuting a person holding a Florida educator certificate. § 1012.796, Fla. Stat. Pursuant to Section 1012.795(1), Florida Statutes, the Education Practices Commission ("EPC") is the entity responsible for imposing discipline for any of the violations set forth in that statute. Mr. Sorensen holds Florida Educator Certificate No. 807290. In 1998, Mr. Sorensen was hired by the Broward County public school system as an exceptional student education teacher and coach, and, from 1998 to the times material to this proceeding, he taught and coached various sports teams at McArthur High School ("McArthur"). From 1992 until his employment as a teacher, Mr. Sorensen was employed by the Broward County public school system as an assistant coach, a teacher's aide, and a substitute teacher. Mr. Sorensen was a very popular teacher and coach with the students at McArthur. Mr. Sorensen was removed from the classroom in the spring of 2001, and he has not worked with children since that time. Mr. Sorensen resigned his position with the Broward County School Board in 2005. Mr. Sorensen married in April 2002, and he currently resides with his wife and two children in Ocala, Florida. Mr. Sorensen has not been the subject of any prior disciplinary action or complaint by a student or fellow teacher. R.J. began attending McArthur in the 1999-2000 school year as a freshman. During the 2000-2001 school year, R.J. was in the 10th grade. R.J. turned 16 years of age during the three months material to this proceeding. Until the events that are the subject of this proceeding, Mr. Sorensen did not know R.J., although he knew of her from having seen her around school. R.J. knew Mr. Sorensen from seeing him at school, and she eventually introduced herself to him. On the evening of March 1, 2001, R.J. and Officer Tomas Hernandez had a conversation at South Broward High School. R.J. was attending night classes to make up some high school credits, and Officer Hernandez was working on his off-duty hours as a security guard at the school. Officer Hernandez's normal assignment was as a school resource officer at McArthur. During the conversation, R.J. mentioned to Officer Hernandez that he needed to watch one of the teachers at McArthur. Officer Hernandez pressed R.J. to identify the teacher, and she told him it was "Coach" Sorensen. According to Officer Hernandez's report, R.J. told him that Mr. Sorensen had pictures of naked female McArthur students on his school laptop computer; that he had shown these photographs to her; and that, while she was chatting with Mr. Sorensen by computer, he told her that he had a place at the beach, and she "felt" he wanted her to go there with him.4 Officer Hernandez reported the information to the Hollywood Police Department early the next morning, March 2, 2001, and he was told to transport R.J. from McArthur to the police station for an interview. Officer Hernandez then contacted R.J.'s father and her sister.5 R.J. was taken out of her first-period class shortly after school started. Officer Hernandez took her by car to the Hollywood police station, where she was interviewed by Detectives Navarro and Horne. At this time, R.J. gave a sworn statement regarding her contacts with Mr. Sorensen. Investigations of the charges R.J. made against Mr. Sorensen were conducted concurrently by the Hollywood Police Department and the Broward County School Board. As a result of the investigation by the Hollywood Police Department, Mr. Sorensen was arrested and charged with lewd and lascivious conduct with a child, which is a felony. He pled nolo contendere to a lesser charge of contributing to the delinquency of a minor, a misdemeanor. Adjudication was withheld, and Mr. Sorensen was placed on probation for one year, which he successfully completed.6 Information about the accusations R.J. had made about Mr. Sorensen found its way to the media, and R.J. was pursued by reporters at school and at her home. R.J. felt that the students at McArthur were hostile towards her, and she claimed to have received threats from fellow students, both in person and on the Internet, in which she was told to drop the charges against Mr. Sorensen. R.J. spoke with Beverly James, the principal at McArthur, about her fears for her safety. Ms. James apparently did not allay her concerns, and R.J. moved to her sister's home and transferred to South Broward High School. R.J. quit school a few months later because she felt that the students and some of the teachers at South Broward High School "looked at [her] wrong" and were "cold" towards her.7 Photographs At or about the end of January or the beginning of February 2001, a member of McArthur's yearbook staff showed Mr. Sorensen the layout for the photographs of the wrestling team. Mr. Sorensen noticed that the photographs included several students who had been members of the wrestling team but who had quit the team after the photographs were taken for the yearbook. Mr. Sorensen felt it was unfair to include students in the yearbook photographs who were not, at the time, members of the team. Mr. Sorensen decided to provide the yearbook staff with some photographs of the then-current wresting team from his own collection to substitute in the yearbook for the out-dated photographs. Mr. Sorensen forgot to go through his photographs at home to choose the ones he wanted to give to the yearbook staff. He remembered one morning as he was getting ready to leave for school, and he grabbed a packet containing his personal photographs and tossed the packet into his duffle bag.8 Mr. Sorensen kept supplies for his wrestling team, such as tape and ointment, in the duffle bag. Mr. Sorensen put the duffle bag into his truck. At some point, while Mr. Sorensen was driving several members of his wrestling team to practice, two male students who were seniors at McArthur, opened the duffle bag, discovered the packet of photographs, and began looking through them. The students came across a photograph of a nude female and several other pictures of females who were semi-nude or wearing thong bikinis. When Mr. Sorensen noticed the two students looking at these photographs, he told them to put the photographs back in the duffle bag. Mr. Sorensen did not take the photographs from the students because he was driving at the time, but the students put the photographs back into the duffle bag. After practice, Mr. Sorensen went to McArthur and dropped off his duffle bag in his classroom. At some point, Mr. Sorensen took the packet of photographs out of the duffle bag and put them in the bottom left-hand drawer of the desk in his classroom. Mr. Sorensen later looked through some of the photographs and chose several photographs of the wrestling team that he wanted to include in the yearbook. R.J. often went into Mr. Sorensen's classroom during the school day, sometimes to see her friend, M., who was in Mr. Sorensen's special education class. R.J. regularly checked her e-mail on Mr. Sorensen's school computer and hung around his desk. At some point in the two weeks prior to her conversation with Officer Hernandez, R.J. went through the photographs in Mr. Sorensen's desk drawer. She saw two photographs of nude or semi-nude females, several photographs of females in thong bikinis, and a photograph of a McArthur student named Mandy, whom R.J. knew from school. Except for Mandy, R.J. did not know the identity of the females in these photographs. Contrary to her statements to Officer Hernandez and Detectives Navarro and Horne, R.J. did not see any photographs of nude or partially nude women on Mr. Sorensen's classroom computer or on his school laptop computer. After R.J. gave her statement to Detectives Navarro and Horne, a number of school and local police investigators, together with Ms. James, McArthur's principal, went to Mr. Sorensen's classroom and asked if they could look through his desk. Several photographs of nude, semi-nude, and scantily- clad females were found among the photographs in Mr. Sorensen's desk drawer. The investigators also confiscated Mr. Sorensen's computer, and it was sent to an Apple Computer technician located outside of Florida, who recovered one photograph of a partially nude woman from the computer's hard drive.9 About a week before Mr. Sorensen's desk was searched, Mandy, who was a 12th grade student at McArthur, gave Mr. Sorensen a photograph of herself wearing tight clothing and standing in a provocative pose; the student had written her name and telephone numbers on the back. Mr. Sorensen put the photograph in his desk drawer, with the other photographs. The photograph of Mandy was among those discovered in the search of Mr. Sorensen's desk drawer. In addition to the photographs he kept in his desk drawer, Mr. Sorensen had numerous photographs on the top of his desk, under glass or plastic, including photographs of ex- girlfriends, of females in both regular and bikini bathing suits, and of members of the various sports teams he coached. These photographs were visible to anyone who came into his classroom and had been on his desk for quite a long time. None of the photographs on the top of the desk were considered to be inappropriate by McArthur's principal. Even if Mr. Sorensen did not realize when he put the packet of photographs into his duffle bag that photographs of a nude and several scantily-clad females were among the other photographs he took from his house, it is reasonable to infer that he knew that these pictures were among the ones he put into his desk drawer because he knew that two members of his wrestling team had gone through the photographs in the duffle bag and had looked at these photographs. In addition, Mr. Sorensen had himself gone through a number of the photographs after he put them in the desk drawer. In placing and leaving these photographs for over a month in his classroom desk where they were accessible to students, Mr. Sorensen created conditions that were potentially harmful to learning and to the mental health of any student who might happen to see the photographs in his desk. This conduct also exposed students to unnecessary embarrassment if a student were to come across the inappropriate photographs in Mr. Sorensen's desk. The evidence presented by the Commissioner is, however, not sufficient to establish clearly and convincingly that Mr. Sorensen showed the photographs to any students.10 Inappropriate communications of a sexual nature Mr. Sorensen maintained an Internet access account with America Online ("AOL"), and he had a screen-name he used for instant messaging feature on the Internet. One feature of AOL instant messaging is a "buddy list" in which a person can list the screen-names of other AOL instant-messaging users; when a person logs onto the Internet, all users who have that person's screen-name on their "buddy lists" are alerted that the person is online. Mr. Sorensen gave his AOL instant-messaging screen- name to numerous students at McArthur, including students in his class and members of the various teams he coached, so they could contact him about school work and schedules. If he was on the "buddy list" of any of these individuals, they would be alerted whenever he logged onto the Internet through AOL, and they could send him instant messages. Mr. Sorensen logged onto AOL to check his e-mail every night, and he would regularly receive instant messages from McArthur students. For the most part, these messages had no substance but consisted primarily of students and Mr. Sorensen asking each other what was going on. Mr. Sorensen and R.J. exchanged instant messages on an average of every other day for about four months prior to March 1, 2001.11 On most occasions, their exchanges consisted of short discussions of events at school. On several occasions, R.J. and Mr. Sorensen discussed R.J.'s boyfriend, and R.J. confided in Mr. Sorensen that she was pregnant and intended to get an abortion.12 R.J. did not report any inappropriate sexual communications from Mr. Sorensen until her conversation with Officer Hernandez, even though, on more than one occasion, Officer Flasher observed R.J. instant messaging Mr. Sorensen on the computer owned by Officer Flasher and questioned her about e-mailing a teacher.13 In considering and weighing the evidence submitted in this case relating to Mr. Sorensen's alleged inappropriate sexual communications with R.J., the undersigned has been mindful that, as discussed further in the Conclusions of Law below, the Commissioner bears the burden in this case of proving by clear and convincing evidence the factual bases for the statutory and rule violations alleged in the Administrative Complaint. The Commissioner presented evidence to the effect that Mr. Sorensen engaged in the sexual misconduct described in the Administrative Complaint, but the totality of the evidence presented by the Commissioner is not sufficiently persuasive to constitute clear and convincing evidence that Mr. Sorensen committed the acts of sexual misconduct alleged in the Administrative Complaint.14
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: Dismissing Counts 1, 2, 6 and 7 of the Administrative Complaint; Finding Dana Sorensen guilty of having violated Section 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and (e); and 2. Placing Mr. Sorensen on probation for a term of two years and under such conditions as the Education Practices Commission shall deem appropriate. DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2006.
The Issue Whether Respondent, Stephen Lauster (Mr. Lauster or Respondent), violated section 1012.795(1)(g) and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1. and (2)(a)5.; and, if so, what disciplinary penalty should be imposed.
Findings Of Fact Respondent is a teacher in the School District and has been since 1990. He holds Florida Educator’s Certificate 664969, covering the areas of educational leadership and music, which is valid through June 30, 2021. The Commissioner is the head of the state agency, the Florida Department of Education. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. During the period relevant to the allegations in the Amended Administrative Complaint, Respondent was employed as a music teacher at the Middle School in the School District. Respondent’s annual professional evaluations for the relevant periods show scores considered “effective” and “highly effective.” Despite this, Respondent has an extensive disciplinary history with the School District, which is set forth below. On or about March 17, 2006, Respondent received a letter of reprimand from his then-principal, Frank Zencuch. On or about March 27, 2009, Respondent received a warning of unsatisfactory behavior from Principal Zencuch. On or about April 2, 2009, Respondent submitted a rebuttal to the March 27, 2009, written warning. On or about May 13, 2009, a Grievance Procedure Level II hearing was held to determine whether the letter of reprimand should be removed from Respondent’s personnel file. The grievance was denied by a School District representative and the letter of reprimand remained in Respondent’s file. On or about December 12, 2013, Respondent’s then-principal, Margaret Jackson, completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about February 7, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning insubordination. On or about April 24, 2014, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about March 30, 2018, Principal Jackson completed a conference summary regarding Respondent, concerning his language/conduct toward students. On or about April 5, 2018, Respondent submitted a rebuttal to the March 30, 2018, conference summary. The Bus Incident on May 28, 2018 On May 28, 2018, Respondent was on his way home from school and was driving behind a school bus, which had left the Middle School ahead of him. Respondent was driving a large sports utility vehicle which allowed him to see into the rear window of the bus he followed. Respondent noticed students on the bus leaving their seats and moving around. Respondent contacted the School District’s transportation center to report the actions of the students on the bus. Respondent testified that after making his complaint to the transportation center, he saw no change in the actions of the students on the bus, who continued to leave their seats. Respondent continued to follow the bus until it made its first stop in a private gated community. Student M.O. lived in the gated community and got off at this stop to go home. At the time of the incident, M.O. was eleven years old. Her mother, K.O., waited in the community parking lot to pick M.O. up from school. When the bus stopped, Respondent pulled his car alongside the bus, exited his vehicle, and hurriedly approached the bus. M.O. disembarked the bus and walked towards her mother’s car. Respondent stood in front of the opened door of the bus and began to yell at the bus driver. Respondent then beckoned M.O. back to the bus. Respondent angrily yelled at M.O., telling her that the next day, “you come to the band room straight to the band office. If I have to come and find you it’ll be worse than what you are going to already get.” Seeing this transpire, K.O. approached Respondent to inquire about what was happening and why he was yelling at her daughter. K.O. asked Respondent who he was. Respondent told K.O. that the bus and M.O. were “in violation” and that M.O. was required to report to him in the morning. Respondent then continued to yell at the bus driver. He demanded the driver send another student to him—a student he claimed he witnessed standing in the bus’s aisles while it was being driven. K.O. touched Respondent’s arm from behind, to gain his attention. Respondent yelled at K.O. that she should not touch him. They engaged in a verbal exchange that was transcribed by a court reporter during K.O.’s. deposition: Respondent: Get your hands off me. Don’t ever touch me. I am doing what I’m supposed to do. K.O.: (Unintelligible.) Respondent: Lady, it’s fixing to get a lot worse. K.O.: What did you say to me? Respondent: I said, “Lady, it’s going to get worse.” Respondent scolded the bus driver for what he considered to be the driver’s inaction. He threatened all of the students on the bus with a “referral.” K.O. remained at the bus stop until the bus left. M.O. was upset and embarrassed by the incident. She did not know Respondent personally; she only knew that he was the school’s band director. The other students witnessed Respondent yelling at M.O. and K.O., which added to M.O.’s embarrassment. Later that evening, when K.O. arrived at home, she emailed Edward Laudise, the assistant principal of the Middle School, regarding the incident. The next day, Respondent reported to the Middle School, where he was told by Principal Jackson that he was not allowed to have any contact with M.O. On or about July 31, 2018, the School District’s Director of Human Resources recommended that Respondent be terminated based on the bus incident. The School District’s Superintendent joined in the recommendation for termination. However, on or about August 21, 2018, the School District suspended Respondent for a period of five days, without pay, instead. Thereafter, Respondent was the subject of several other disciplinary actions, unrelated to the bus incident. On or about August 27, 2018, Principal Jackson completed a conference summary regarding Respondent’s language/conduct toward students, co-workers, and parents, and his poor attendance and tardiness. On or about May 7, 2019, Principal Jackson held a meeting with Respondent to discuss allegations that Respondent told students, among other things, that “they would be the first generation of young people to die before their parents,” and that they “sound like they have stage 4 cancer.” On or about May 28, 2019, Respondent received a letter of reprimand and recommendation for a four-day suspension from the School District Director of Human Resources. On or about May 29, 2019, Respondent received a letter of reprimand and four-day suspension from the School District Superintendent. In September 2019, Respondent entered into a settlement agreement with the School District, through which the four-day suspension was reduced to two days. The P.E. Incident on January 30, 2020 A.H. and L.H. are students who attend the Middle School. On the date of the hearing, which was held approximately six months after the incident, A.H. and L.H. were 13 years old. On or about January 30, 2020, A.H. and L.H. were participating in physical education (PE) class. Melea Morgan was the PE teacher. A.H. and L.H. left PE class to go to the restroom. There is conflicting testimony as to the amount of time A.H. and L.H. spent in the bathroom, but the amount of time is irrelevant. After leaving the restroom, the students walked towards a water fountain. Respondent contacted Ms. Morgan to let her know that A.H. and L.H. were in the bathroom for a long time. He asked if she approved of him going to get them and Ms. Morgan agreed. Respondent approached A.H. and L.H. as they walked towards the water fountain. Respondent admonished A.H. and L.H. for being in the bathroom for an extended amount of time. He told them that they should be participating more in PE class and that he would be referring them to in-school suspension (ISS). Both A.H. and L.H. distinctly and explicitly recalled the events that took place that day. A.H. credibly testified about her interactions with Respondent, stating: And then Mr. Lauster – and then I started telling Mr. Lauster, so we will participate more, can we please not go to ISS. And he said, well, you’re on the soccer team, you shouldn’t be hanging out with a loser. She’s a do-nothing. You can’t -- you shouldn’t be hanging. And then I was just, like, we will participate more and I’m sorry. He was like, I expect more from you because you’re on the soccer team. And I was just -- and L said nothing. And I was just, I will do more. And then he just kept calling L a loser. A.H. distinctly recalled that Respondent referred to L.H. as a “do- nothing” and a “loser.” L.H.’s testimony was the same. She recalled that Respondent referred to her as both a “loser” and a “do-nothing” and that he asked A.H. why she was hanging out with “this loser,” referring to L.H. Respondent threatened to send A.H. and L.H. to ISS, but then told them he would give them another chance. The School District initiated an investigation into the matter. On or about March 6, 2020, Respondent received a letter of termination from the School District’s Superintendent. On or about April 22, 2020, Respondent entered into a settlement agreement with the School District. Pursuant to the terms of the settlement agreement, the School District did not terminate Respondent. Rather, the settlement agreement operated as a “last chance agreement,” which provided for an automatic termination should any future infractions occur. Respondent was neither apologetic nor remorseful for how he handled A.H. and L.H. Instead, in testimony that was wholly unconvincing, he maintained that he did not call L.H. a “do-nothing” or a “loser,” but, rather, that he told the students that they “made a loser decision” and “chose to be do-nothings in the bathroom.” At only 12 or 13 years old at the time of the incident, L.H. was impressionable. By all accounts, she is a very shy girl. L.H.’s mother testified that L.H. struggles with anxiety and that in the past she has felt like she is a loser and does not have friends. She was “shook up” by Respondent’s comments. Similarly, Respondent was unremorseful and unapologetic about his actions during the bus incident. Respondent attempted to justify his behavior towards M.O., her mother, and the bus driver. He testified that he needed to stop the bus because he saw inappropriate activity on the bus that could have been dangerous to everyone onboard. Respondent is correct that the students on the bus were engaging in inappropriate behavior—they were getting in and out of their seats, walking in the aisles, and playfully fighting with each other. However, Respondent handled it poorly. Principal Jackson testified that the appropriate reaction would have been for Respondent to contact the School District’s transportation department (which he did) and then report the inappropriate behavior to school administration the next day. He should not have approached the bus or condemned the students or the bus driver. Respondent was clearly angry when he spoke to M.O. He lost his composure. Worse still, he directed his anger to K.O. Ultimate Findings of Fact The undersigned finds that Petitioner proved by clear and convincing evidence that Respondent inappropriately yelled at and intimidated M.O. who had changed seats on the bus while it was moving. Respondent also became confrontational with M.O.’s mother and threatened the remaining students on the bus with referrals, regardless of whether they were misbehaving or not. Petitioner also proved by clear and convincing evidence that Respondent told L.H., in front of A.H., that she was a “loser” and a “do nothing.” The undersigned finds that based on the findings of fact above, Respondent’s conduct during the bus incident and the PE incident have been proven by clear and convincing evidence and that Respondent, through his actions, violated the statutes and rules as alleged in the Amended Administrative Complaint. None of the other factual allegations contained in the Amended Administrative Complaint were proven by clear and convincing evidence.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission finding that Respondent, Stephen Lauster, violated section 1012.795(1)(j) by violating rule 6A-10.081(2)(a)1. and (2)(a)5.; and as sanctions for such violations, suspending his educator’s certificate for one year from the date of the Final Order. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 3rd day of November, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Lisa M. Forbess, Interim Executive Director Department of Education Education Practices Commission Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Nicholas Anthony Caggia, Esquire Johnson and Caggia Law Group 510 Vonderburg Drive, Suite 303 Brandon, Florida 33511 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Petitioner is a Caucasian male born December 30, 1952. At present he is 54 years old. Petitioner holds a bachelor's degree in criminology from Florida State University, which he obtained in 1976. He also holds a juris doctorate from Florida Coastal School of Law, obtained in December 1999. In between these two degrees, Petitioner's employment history, included with his application for employment with the School District, indicates that in 1976 he worked at Graham's Dairy farm; from 1979-1980, he worked in telephone communications doing telephone installation, repair, and telephone cable splicing for an unknown employer; and in 1981 he worked for GTE of Florida performing telephone installation and repair. In 1985 Petitioner was the operations manager for Ocala Mack Sales, handling small claims and tag and title work. In 1989, he returned to the telephone industry, splicing cable. There is no indication of the time frame or duration of each job. No credible explanation was given for the significant gaps in his work history, or the reasons for leaving the various jobs listed. Beginning in 1993, Petitioner substituted for a three- month period at Fort King Middle School in Ocala, Florida. This three-month period is the only experience in the education field that Petitioner possesses. That same year, Petitioner began taking additional classes at the community college level part time in an effort to go to medical school. He also stayed home caring for his children. When he was unsuccessful in getting admitted to medical school, he turned his efforts to law school. Beginning in 2001, after graduating from law school and passing the bar exam, Petitioner worked as an attorney for the Department of Children and Families. In April 2004, he resigned in lieu of termination.1/ After an eight-month period of unemployment, he was hired in November 2004 as a corrections officer with the Florida Department of Corrections, and remains in that position today. In 2004, Petitioner began applying for teaching positions in Marion County. To that end, he has applied for and received Statements of Status of Eligibility from the Florida Department of Education indicating that he is eligible for a temporary certificate in the areas of chemistry and biology, grades 6-12, for the period June 22, 2004, through June 22, 2007. The job description for a teaching position in the School District indicates that a candidate must have a bachelor's degree from an accredited institution and be certified by the State of Florida or have district vocational certification. School District Policy 6.10 requires that all personnel be appointed as prescribed by Florida Statutes and applicable rules of the School Board and the State Board of Education. The job description also lists the following in terms of required knowledge, skills and abilities: Knowledge of child growth and development, especially of characteristics of children in the age group assigned. Knowledge of prescribed curriculum. Knowledge of current educational research. Basic understanding and knowledge of use of current technology. Knowledge of learning styles and skill in using varied teaching methods to address student learning styles. Skill in oral and written communication with students, parents, and others. Ability to plan and implement activities for maximum effectiveness. Ability to effectively assess levels of student achievement, analyze test results, and prescribe actions for improvement. Ability to maintain appropriate student supervision so that students have a safe and orderly environment in which to learn. Ability to work effectively with peers, administrators, and others. Certification by the Department of Education in the subject matter to be taught is generally required. The School District may waive certification in a particular area only when there is a critical need for teachers in that area and there are no certified teachers available. Even in that instance, the School District usually looks for a closely related certification area. For example, when trying to fill special education positions, the School District will look first for applicants certified in reading if no one certified in special education is available. In addition to certification for individual subject areas, a teacher may obtain what is referred to as a middle grades integrated certification. Someone with this certification is preferred over other applicants in a middle school setting, because they can teach science, social studies, language arts and math, giving principals more flexibility in filling positions that might include teaching in more than one area. Petitioner does not hold a middle grades integrated certification. Petitioner has applied for 32 science teaching positions, two biology positions and one chemistry position in the School District. In addition to these 35 science-related positions, Petitioner has applied for 47 additional teaching positions in the reading and exceptional education, areas for which he understands there is a critical need, and in criminology and legal systems, areas where he believes he has practical experience. Because he is not certified in these areas, they would be considered out-of-field. Petitioner could only be considered for those positions in the event that there was no qualified and appropriately certified candidate available. He has also applied for approximately 50 other positions for which he is not certified. Petitioner has received five interviews for positions within the Marion County School District. He has received no offers of employment. The School District fills vacancies for teachers in several different ways. A person already working as a teacher in the School District may request a transfer, for example, to a different subject area for which they are qualified or to a different school. Under the teachers' collective bargaining agreement with the School District, that teacher is automatically considered as the preferred candidate for any vacancy consistent with their request, unless the principal at the hiring school presents a compelling reason why they should not be hired. Under these circumstances, no vacancy would be advertised. The School District also encourages applicants to participate at an annual district-wide Job Fair. At that Job Fair, principals at different levels (high school, middle school, elementary school) are available to conduct interviews. Candidates do not necessarily interview for particular positions; they interview with whatever principals are available. Finally, applicants may be called to interview with principals for openings at individual schools, should there not be a qualified applicant requesting a transfer or under "conditional contract" with the District. Conditional contracts will be discussed in more detail below. During interviews at the Job Fair, principals use standardized interview questions that have been approved by the School District. The standardized interview questions have eight categories of questions based upon qualities one would expect to find in a teacher: 1) likes kids; 2) dependable; 3) content knowledge; 4) ability to manage; 5) motivation; 6) positive attitude; 7) team player; and 8) communication. The interviewer selects a question from each category to ask the applicant, and awards one to three points per question, based on whether the answer exceeds expectations, meets expectations or does not meet expectations. The highest total score an applicant can receive based on his or her answers to these questions is 24. Principals may only choose from the questions provided. They may clarify a question should an applicant ask them to, but they may not ask other questions. If the principal is favorably impressed by an applicant and has a vacancy at his or her school in the area for which the applicant is certified, the principal may offer that applicant a position at the interview. If they have no such position available but think the candidate would be a good hire for the School District, they may offer what is referred to as a conditional contract. A conditional contract does not entitle the applicant to a job. However, as vacancies arise within the School District, if there are individuals with conditional contracts that are qualified for the vacancies, those individuals are referred to the hiring principal for consideration. The hiring principal chooses from among those candidates with conditional contracts, and if there is only one such candidate, he or she would, absent extraordinary circumstances, get the job. Petitioner participated in the School District's Job Fair in June 2006. He was interviewed by Lisa Krysalka, the principal at Belleview Middle School. When Petitioner appeared for his interview at the Job Fair, he was not wearing a suit and did not bring a resume. Ms. Krysalka's notes reflect that he did tell her he had served as a substitute 10 years before. Based on his answers to the standardized questions, Ms. Krysalka gave Petitioner an overall score of nine. She ranked his answers as not meeting expectations for eight out of nine questions. Her scoring was reasonable in light of the answers he gave. For example, when asked to describe his classroom management plan, Petitioner indicated that he had no plan because he did not have problems with discipline. When Petitioner was asked how he would get his students excited about entering the classroom, he stated that most kids are excited already, and he would have a plan (although unspecified) and stick to it. Other answers he gave were either not responsive to the questions asked or did not relate to a school setting or to work with children. Ms. Krysalka felt some of Petitioner's responses were unrealistic and showed that he was unprepared to teach middle school in today's climate. Ms. Krysalka's assessment is reasonable. Petitioner's answers to these standardized questions do not demonstrate that he possessed the knowledge, skills and abilities required to perform as a teacher in the Marion County School District. Petitioner interviewed at individual schools outside the purview of the Job Fair. None of those interviews resulted in offers for a teaching position. While Petitioner testified that he has applied for dozens of positions, he presented evidence regarding only seven of those positions. The qualifications for the successful candidates for the positions are listed below. Petitioner admitted at hearing that he had no personal knowledge as to the qualifications of any of these candidates. He simply felt that, given the number of positions for which he applied, the only reasonable explanation for his not getting a teaching position was his age. Matthew Bates was born in 1981, and is younger than Petitioner. He has a B.A. in history and is working on his master's degree in educational leadership. He has passed the M/J Integrated Certification exam. Bates was originally hired in September 2005 at Dunellen Middle School for a "split" position, teaching both seventh grade science and language arts. Mr. Bates requested and was granted a transfer within the School District under the collective bargaining agreement to fill a vacant seventh grade science position at the same school. Consistent with the School District's collective bargaining agreement, no other candidate was considered or interviewed. Petitioner has not established that he is equally qualified or more qualified than Mr. Bates for the position sought. Ronald Long was born in February 1981, and is younger than Petitioner. Mr. Long was selected for a science position at Forest High School. He holds a B.S. degree in biology; served as a substitute teacher for the School District during the 2003-2004 school year, and was an assistant and junior varsity basketball coach at Trinity Catholic High School during that time. Mr. Long's resume also indicates that he has worked with the Boy Scouts and several basketball teams at both the high school and college level. Based on his interview and experience, Milford Lankford, the principal at Forest High School, believed Long to be the better qualified candidate. Petitioner was interviewed for the position at Forest High School. At the time of his interview, Mr. Lankford was filling two positions in the science department. The first position was filled by Mr. Downs, who was 63 years old at the time he was hired. However, based on his interview, Mr. Lankford did not feel that Petitioner had the skills necessary to be successful in the classroom. His impression was confirmed after Petitioner interviewed with his assistant principal, Ms. Bounds. Mr. Lankford had eliminated Petitioner from consideration by the time he offered the second position to Mr. Long. In any event, his determination that Mr. Long was better qualified for the position is reasonable. David Mahfood, was born in 1983 and is younger than Petitioner. He was selected for a physics position at one of the high schools in the School District. The position required that the applicant be highly qualified in and certified to teach physics, and Mr. Mahfood met those qualifications. Petitioner is not certified in physics, as required for this position. Bret Mills, born in 1982, is also younger than Petitioner. He has a middle grades integrated certification. Mr. Mills holds a B.S. in animal biology and while his resume does not reflect any teaching experience, it does reflect experience working with children in church and little league, as well as working as a literacy program leader while at the University of Florida. Mr. Mills' certification was preferable for the position being advertised. Petitioner did not establish that he was equally or more qualified than the successful candidate for this position. Michael Orloff was hired for a seventh grade science position at West Port Middle School. Mr. Orloff was born in 1958, and is four years younger than Petitioner. He has a B.S. in marketing with a minor in chemistry. He was interviewed by Greg Dudley, the principal of West Port Middle School during the Job Fair. Based upon a favorable interview, he was offered a position at that school in accordance with School District policy. There is no evidence that Mr. Dudley even knew of Toms' application at the time that he offered Mr. Orloff the job. Mr. Richard Williams was born in 1971, and is younger than Petitioner. He was offered a position teaching science at Howard Middle School. Mr. Williams holds a B.S. degree in biology and a master's degree in environmental management. He also has experience as a resource teacher with Eckerd's Youth Alternatives and served in the Peace Corps as a forestry extension agent. Mr. Williams originally worked beginning in September 2005 as a substitute teacher at Howard Middle School. He participated in the 2006 Job Fair and interviewed with the incoming principal at Howard Middle School. Based on his outstanding scores on the Job Fair Interview, he was offered a job immediately. Petitioner was not a candidate brought to the attention of the hiring principal at the time of the Job Fair. As previously indicated, Petitioner's interview scores at the same Job Fair were not impressive. Unlike Petitioner, Mr. Williams' degrees and experience are in fields related to the area he was hired to teach. Mr. Williams was the more qualified candidate for the position for which he was hired. Finally, Kristen Wood was born in 1982 and is younger than Petitioner. She was hired to teach agriculture and biology. Ms. Wood graduated from the University of Florida with a major in agricultural education and had a teaching internship in agriculture. She was also certified to teach in both biology and agriculture, and had significant experience with the Florida Future Farmers of America Association. Petitioner is not certified in agriculture and had less experience related to education. Ms. Wood was the more qualified applicant for the position sought.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint and denying Respondent's request for attorney's fees and costs. DONE AND ENTERED this 17th day of August, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 August, 2007.
