The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Teacher Karyn Cena (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a first grade teacher employed by the Petitioner to work at Tillman Elementary School (Tillman) pursuant to a professional services contract. On May 11, 2010, the Tillman first grade students were gathered in an auditorium to rehearse for a musical program to be presented in celebration of Memorial Day. The students had been rehearsing for several days prior to May 11, 2010. As might be expected, some first grade students required occasional redirection. Such redirection was generally communicated by a teacher delivering a "stern look" to the non-complying student. If the correction was not successful, a non-complying student was directed to go to the back of the room and sit on a bench that essentially served as a "time out" area. At one point in the program, the students were standing, singing, and holding up their arms, pretending to waive American flags. The flags had not yet been distributed to the students. During this portion of the rehearsal on May 11, 2010, the Respondent apparently thought that one of the students ("S.M.") was playing and not pretending to wave the non-existent flag appropriately. The Respondent grabbed the student by the arm and quickly walked the student to the back of the room, where the Respondent placed the student forcefully on the time out bench. The student did not resist the Respondent in any manner. There was no credible evidence that the Respondent provided any redirection to the student prior to her physical interaction with the student. There was no evidence that the student was unable to comply with a verbal directive delivered by the Respondent or any other teacher. There was no evidence that the student was acting out or posed any threat whatsoever to himself or any other student, or to the Respondent or any other school employee. There was no evidence that any force or physical contact was necessary whatsoever to correct the student's behavior or to direct the student to the time out area. At the hearing, the Respondent was described by witnesses as appearing "angry" during the incident. Although the Respondent denied that she was angry with the child, the Respondent's interaction with the student was clearly inappropriate under the circumstances, and it is not unreasonable to attribute her behavior to anger. Observers of the incident testified that the student appeared to be embarrassed by the incident, sitting with his head bowed after being placed on the bench. Some teachers testified that they felt personal embarrassment for the student.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Karyn Cena. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 1st day of March, 2011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Richard Stephens is a tenured instructional employee of the Leon County School Board, and has been a science teacher at Nims Middle School for seven years. On October 31, 1980, an incident occurred on the Nims Middle School premises during the lunch hour. A female student, Loretta Brown, called a male student, Johnny Bryant, an offensive name inside the school cafeteria. As she was standing on the outside of the double doors near the back entrance to the cafeteria, Johnny Bryant jumped out of his seat at the lunch table, ran outside and either jumped on Miss Brown's back or pushed her. Miss Brown flipped Bryant over, he landed on the cement sidewalk, got up and they began to fight. As respondent Stephens was leaving the cafeteria with his students, he noticed that a male student (Bryant) had jumped up from his chair and run out the door. As respondent walked out the door, he saw a male and a female student fighting. Student Bryant had student Brown pinned up against a railing, was holding her by the collar with his left hand and was violently swinging at her with his fisted right hand. The students were hitting each other about the face and the stomach. When the respondent initially encountered the two fighting students, he told them to stop fighting. They continued to fight. Being unable to verbally stop the altercation or to get between the students, and feeling that serious damage to the students could result, respondent reached under student Bryant's left arm and around his chest and tried to grasp Bryant's swinging right hand. Respondent was attempting to pull the students apart, but Bryant continued to hold on to Brown's collar. When respondent grabbed Bryant, Bryant gave no indication of control and respondent felt that Bryant needed further restraint. Respondent was eventually able to get Bryant's right arm down by his side. Bryant twice attempted to elbow respondent in the groin area. In order to avoid this attack, respondent turned his body. When he did so, it appeared that Bryant would get away from him. Respondent then lost his balance, and having made the decision to fall to the ground rather than to let Bryant go, both respondent and Bryant fell to the concrete walkway. When this occurred, respondent put Bryant's arm behind his back and squatted over Bryant's back with his knees on the ground. While on the ground, Bryant continued to kick his feet, move his head up and down and yell. Respondent told him on several occasions that he would allow Bryant to get up when Bryant calmed down. When two other teachers, Richard White and Gerald Chandler, came to the scene, Bryant was still struggling with respondent on the ground. Mr. White helped respondent and Bryant up and White and respondent continued to hold on to Bryant's arms. When Mr. Humphries, the Assistant Principal for Administration, came, Bryant was not calmed down and was continuing to try to get away. Mr. Humphries shook Bryant by the arm and told him to stop. At that time, Bryant did calm down and the students were taken to Mr. Humphries' office. Throughout the incident, respondent was of the opinion that if he let Bryant go, Bryant would have injured him or someone else. The two fighting students testified that they would have continued fighting if respondent had not stopped them. Bryant admitted that while he was on the ground with respondent, he was still mad, was yelling and that after respondent let him get up, he was still attempting to get free. Another teacher who witnessed a part of the incident stated that Bryant was not in control and that it was difficult to determine what Bryant would do if he were released. Other witnesses who observed portions of the incident testified that respondent had Bryant under control, was holding his arm in a "hammerlock" or "chicken wing" position and that Bryant was complaining that respondent was hurting his arm. When Assistant Principal Humphries investigated the incident, Bryant complained of bumping his knee, but made no remark concerning his arm. During the preplanning period prior to the 1980-81 school year, teachers at Nims Middle School were not given specific instructions or guidelines as to how to break up a fight between two or more students. Subsequent to the October 31, 1980, incident described herein, teachers were instructed that in cases of student fightings, they may use whatever force is necessary to break up the fight and that they have a right to defend themselves and protect other students. Generally, the amount of force to be used will be a judgment call on the part of the teacher dependent upon the specific situation. On November 30, 1979, a letter written by Devurn H. Glenn, the former Principal of Nims Middle School, concerning respondent's actions when stopping a fight between two students on November 8, 1979, was placed in respondent's personnel file. This letter states that ". . . while you were carrying out your duty in stopping the fight, the amount of force used by you was in excess of the minimum necessary to bring the fight to a conclusion. In light of the above finding, I instruct you to use more restraint in dealing with similar situations in the future."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Notice of Charges filed against the respondent Richard Stephens be DISMISSED. Respectfully submitted and entered this 6th day of May, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1981. COPIES FURNISHED: Charles Johnson 2757 West Pensacola Street Tallahassee, Florida 32304 Pamela L. Cooper Staff Counsel Florida Teaching Profession-NEA 213 South Adams Street Tallahassee, Florida 32301 Charles Couch, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32312
The Issue The primary issue is whether Respondent committed the acts as alleged. The factual allegations were that the Respondent had made obscene, unprofessional and inappropriate remarks of a sexual nature to a female student; that Respondent filed or caused to be filed a lawsuit against the complainant in this cause; that Respondent had the complainant in this cause turn around in front of the Respondent and a group of male students in the class and made comments concerning the fact she was a female; and lastly, that the Respondent failed to discipline a student who had allegedly grabbed the complainant by the breast in Respondent's class. The acts are alleged to be contrary to Section 231.36(4), and Rules 6B-4.09 and 1.06, Florida Administrative Code.
Findings Of Fact Jamie Antonovich is a female student at Countryside High School, Pinellas County, Florida. She will be in the twelfth grade during the 1984-85 school year. Jamie Antonovich was a student at Countryside High School in the ninth grade where she was in the Respondent's manufacturing class. At that time she was 14 years of age. The manufacturing class was the only class which Antonovich had with the Respondent. At the commencement of the manufacturing class sessions, the Respondent, noting that the roll for his class reflected that Jamie Antonovich was a male, called Antonovich to the front of the room and had her turn around in front of the students in the class. Respondent asked the male students "Does that look like a male to you?" The Respondent does not dispute the fact that he filed a lawsuit against Antonovich, however, no evidence was presented as to the nature of this suit. In April 1982, the Respondent did not punish the student Vernon Goins for grabbing Jamie Antonovich's breast while Goins and Antonovich were engaged in horseplay in class. The Respondent was not a witness to the incident and evidence existed that Antonovich had initiated the physical horseplay with Goins. Antonovich testified that in the same month the Respondent asked her sexually explicit questions and made sexually explicit comments to her. The Respondent denies making any sexually explicit comments to Antonovich or asking her sexually explicit questions. Neither Antonovich nor the Respondent are disinterested witnesses in this proceeding. Both witnesses are equally credible.
Recommendation Having found that the allegations of the administrative complaint, were not proven, it is therefore RECOMMENDED: That the administrative complaint against the respondent be dismissed. DONE and ORDERED this 11th day of February, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1985. COPIES FURNISHED: Usher L. Brown, Esquire 1960 E. Druid Road P. O. Box 6374 Clearwater, Florida 33518 Robert F. McKee, Esquire 401 South Albany Avenue Tampa, Florida 33606 Ralph D. Turlington, Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Scott N. Rose, Superintendent School Board of Pinellas County, Florida 1960 E. Druid Road P. O. Box 6374 Clearwater, Florida 33518
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 2000, in Tallahassee, Florida. DANIEL MANRY 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 28th day of September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Respondent, who has no prior disciplinary history, holds Florida Educator's Certificate 709850, covering the area of mathematics, which is valid through June 30, 2014. The Events The incident that gives rise to this proceeding occurred during the morning of April 8, 2011, at Dillard High School ("Dillard"), where Respondent has taught mathematics since 2004. At that time, Respondent was lecturing to his Algebra I honors class, which comprised approximately 15 students. During the lecture, one of the male students, 15-year- old D.P., took out his cell phone and viewed it, contrary to one of Respondent's classroom rules. Respondent immediately directed D.P. to put the phone away, and the student complied; a few moments later, however, D.P. again took out his phone, which resulted in the same reaction from Respondent. For reasons known only to D.P., he took out his phone a third time——conduct that prompted Respondent to confiscate the item. Later, during the same class period, D.P. inquired of Respondent as to when his phone would be returned. Respondent replied that the phone could be retrieved at the end of the day from Mr. Levinsky, one of Dillard's assistant principals. None too happy with this turn of events, D.P. stewed for several minutes, at which point he got up from his table and approached the front of the room, where Respondent was seated behind his desk. Suspecting that D.P. might attempt to recover the phone (which lay on Respondent's desk), Respondent picked it up. At that point, and in an audacious move, D.P. grabbed Respondent's cell phone off the desk and stated, in an angry tone, that he would return Respondent's phone when Respondent relinquished possession of his (D.P.'s). Understandably disinclined to negotiate, Respondent calmly directed D.P. to return his property. D.P. refused. Respondent again asked, to no avail, that D.P. place the phone on the desk. After a third request, which, like the others, went entirely unheeded, Respondent stood up, walked around his desk, positioned himself near D.P., and instructed D.P.——for the fourth time——to put down the phone. D.P. complied, only to pick up the phone once again just seconds later. (While doing so, D.P. remarked that he was not going to return Respondent's "mother-fucking phone.") It is at this point that the witness' accounts diverge: D.P. and student S.H. contend that Respondent reached out with one hand and, in an unprovoked act of violence, grabbed D.P. by the throat and pushed him backwards, which resulted in D.P. falling over several desks that had been placed together; students A.A., R.B., and A.P. claim that Respondent, without provocation, slammed D.P. onto the desks after taking hold of the student's throat; finally, Respondent asserts——as corroborated by student T.F.——that D.P. moved toward him in a threatening manner and that he (Respondent) simply defended himself5/ by extending his arm, which made contact with D.P.'s upper chest or neck area. Respondent and T.F. further testified that, as a result of the defensive contact, D.P. moved backward and either tripped or fell over the desks. Before the undersigned resolves the question of how D.P. wound up on the floor, a brief rehearsal of the relevant subsequent events is in order. Moments after the physical encounter, Respondent informed D.P., who was uninjured, that he intended to escort him to one of Dillard's administrators. Enraged, D.P. removed his shirt and followed Respondent into the hallway; as D.P. did so, he directed several vulgar threats toward Respondent, such as, "I'm going to fuck you up" and "I'm going to kill you." Moments later, Respondent encountered one of Dillard's security guards, Noel Buhagiar, from whom Respondent requested assistance. Mr. Buhagiar proceeded to restrain D.P., at which point Respondent made his way to school administration. Once in the front office, Respondent provided a brief description to Mr. Levinsky (as noted previously, an assistant principal) concerning his incident with D.P. Mr. Levinsky instructed Respondent to return to class and issue D.P. a referral. While en route to his classroom, Respondent walked by D.P., who, still restrained, repeated his earlier crude threats. From what can be gleaned from the record, D.P.'s behavior ultimately earned him a five-day suspension from school. Shortly after the incident, Respondent was questioned by Edward Jackson, a school resource officer assigned to Dillard. During the interview, Respondent explained that D.P. had approached him in a "fighter's stance" and that, as a result of this aggressive behavior, he feared for his safety and used an open hand (which made contact with D.P.'s neck) to ward D.P. away. Subsequently, Officer Jackson conducted an interview of D.P. in the presence of Mr. Levinsky and the student's father, during which D.P. provided a description of the incident that largely coincided with Respondent's version of events. These statements were credibly recounted during the final hearing by Officer Jackson, who testified: The child told me, in front of his father, and A.P. [Levinsky], that there was a conversation about a cell phone. He went to get his cell phone back, in an aggressive manner, and that's when [Respondent], fearing for his safety, extended his arms out, and I guess in such force, that he caused the student to fall over some chairs. I then asked, well, Mr. [Levinsky] asked the student, did at any time, did [Respondent] use his hand to choke, choke you. And D.P. answered, to the question, indicating that [Respondent] did not use his hands to choke him. And that was said in front of his father, and in front of Mr. Levinsky, so, there was no choke at all. Final Hearing Transcript, p. 173 (emphasis added). Upon the conclusion of his investigation, Officer Jackson charged D.P. with misdemeanor assault,6/ at which time the matter was forwarded to the State Attorney's Office.7/ Ultimate Findings It is determined, as a matter of ultimate fact, that Petitioner has failed to adduce clear and convincing evidence of the Amended Administrative Complaint's principal allegation—— namely, that Respondent grabbed D.P. in a "choking manner and pushed him onto [a] desk." In so finding, the undersigned rejects the testimony of Petitioner's witnesses on this issue, which, for several reasons, is less persuasive than that of Respondent and T.F. First, had Respondent committed the act alleged, it is reasonable to expect that D.P. would have suffered some form of harm, particularly since Respondent, a football coach, outweighed D.P. by at least 608/ pounds. Yet, and as D.P. conceded during the final hearing, he sustained no marks, bruises, or injuries of any kind.9/ In addition, D.P.'s present description of the event is highly dubious in light of Officer Jackson's credible testimony, which establishes D.P.'s admission during the police interview that he (D.P.) had moved toward Respondent aggressively and that Respondent had merely extended his arm for protection. Finally, D.P.'s wholly outrageous conduct, both before and after the incident——taking Respondent's property and refusing to return it, removing his shirt, and threatening to "kill" Respondent——is far more suggestive of his culpability as the aggressor. Owing to the undersigned's crediting of Respondent's final-hearing testimony, it necessarily follows that Respondent's report of the incident to law enforcement, in which he claimed self-defense, was in no manner false or dishonest.
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 dismissing the Amended Administrative Complaint. DONE AND ENTERED this 30th day of May, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 May, 2013.
The Issue The issues for determination in this proceeding are whether Respondent should be terminated from his employment with the Broward County School Board and whether Respondent's teaching certificate should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Background Respondent holds Florida Teaching Certificate 595579 in science and elementary education. Respondent's teaching certificate is valid through June 30, 1992. Respondent has filed an application for renewal. Respondent has held a professional service contract with the Broward County School Board (the "School Board") since September 11, 1987. Respondent began teaching in the Broward County school system in 1987. He taught at Seminole Elementary School. His mid-year evaluation indicated he needed some improvement in the preparation of lesson plans. His final evaluation indicated that Respondent had improved his lesson plans and had good control of his class. For the 1988-1989 school year, Respondent was employed as a fourth grade teacher at Banyan Elementary School. His mid-year evaluation indicated a need for improvement in lesson plans. His final evaluation, however, was satisfactory. Respondent continued teaching at Banyan Elementary School until December, 1989. From December, 1989, until he was suspended on January 16, 1992, Respondent taught at Rogers Middle School. Respondent's initial evaluation at Rogers Middle School indicated the need for some improvement, but his final evaluation for the 1989-1990 school year was satisfactory. At the end of the 1989-1990 school year, Mr. Sterling Dupont replaced Mr. Greg Clark as the principal of Rogers Middle School. Ms. Ellen Etling and Mr. Mike Newman, two of the three assistant principals, were also new members of the administration at Rogers Middle School. Mr. Dupont assigned Respondent to a self-contained drop out prevention class during the Summer of 1990. A class is self-contained when its students remain with the same teacher for the entire day. The drop out prevention class required a teacher certified in elementary education so that the students' academic needs could be individualized. Mr. Dupont wanted a male teacher in the class because of the students' inability to perform in a school setting and behavioral problems. Respondent is approximately 5 feet 7 inches tall and weighs approximately 112 pounds. Mr. Dupont did not consider other factors in applicable School Board guidelines for assignment of teachers to a disciplinary drop out prevention class. Mr. Dupont did not consider Respondent's: desire and ability to work with problem students; expertise in behavior management techniques; desire and ability to identify and solve underlying causes of student behavior rather than merely modify behavior; ability and expertise in diagnosing difficulties opposed to motivational achievement; ability to utilize school and community resources to benefit students; and ability to utilize a variety of instructional approaches to meet individual needs and learning styles of students. Mr. Dupont did not ask Respondent if he wanted to teach the drop out prevention class and did not otherwise confer with Respondent prior to making the assignment. Respondent was informed of his assignment in August, 1990, in accordance with customary practice for all class assignments. Criteria for placement in the drop out prevention class included excessive absences, being held back a grade or being older than other students, failing to perform at the appropriate grade level, and behavior difficulties. While a majority of the students were not placed in the class due to disruptive behavior, most of the students demonstrated disruptive behavior. The class was officially categorized as a drop out prevention class but was also a very disruptive class. Many students in the class came from single parent homes, disadvantaged socio-economic environments, and exhibited low self-esteem. One of the objectives of the class was to raise the students' self-esteem and grade level performance. The class was also intended to ensure that the students made a successful transition to the middle school setting. The Broward County school system has eliminated corporal punishment as a form of discipline. Teachers are not to become physically involved with students in order to discipline or control them. The use of force is appropriate only to prevent harm or injury to a teacher or student. Teachers may not use physical means to control students, punish their behavior, or maintain order in the classroom. Respondent violated the policy against corporal punishment. During the 1990-1991 school year and the 1991-1992 school year, Respondent engaged in inappropriate physical contact with students as a means of discipline or control. Respondent used excessive force to control students, yelled at students, faculty, and administrative staff, violated rules of the State Board of Education, and engaged in misconduct. Respondent's misconduct was so serious that it impaired his effectiveness in the school system. See paragraphs 21-44, infra. In most instances, the students involved in the events at issue in this proceeding were engaged in inappropriate behavior which warranted correction, discipline, and punishment. In addition, the relationship between Respondent and the administrative staff at Rogers Middle School was strained by Respondent's dissatisfaction with administrative support and his lack of success in obtaining a transfer. However, the underlying problems between Respondent and the administration and the disruptive behavior of Respondent's students did not justify Respondent's misconduct and violation of applicable rules. The School Board complied with the requirements in Florida Administrative Code Rule 6B-4.008 for fair dismissal procedures. Respondent received an unsatisfactory evaluation for the 1990-1991 school year. On January 9, 1991, Ms. Etling issued an evaluation that Respondent needed improvement in behavior management, lesson design, and oral speech. Ms. Etling advised Respondent verbally and in writing that he would be given the opportunity to improve his performance by observing other teachers and attending workshops. On April 22, 1991, Mr. Dupont issued an evaluation that Respondent needed to improve in behavior management, classroom atmosphere, and lesson design. Mr. Dupont advised Respondent to observe other drop out prevention teachers, attend workshops, and review articles and tapes on positive attitudes. The administration arranged for Respondent to visit drop out prevention classes at other middle schools and offered Respondent the opportunity to attend workshops. Respondent attended some drop out prevention classes at other middle schools. Mr. Dupont made every reasonable effort to assist Respondent in obtaining a transfer to another school, but Respondent was unable to obtain a transfer. The School Board investigated a complaint regarding Respondent's conduct at school. On March 13, 1991, the Professional Standards Committee found probable cause to support the complaint. The Committee recommended that Respondent receive a letter of reprimand, be referred to Professional Practices Services, and be suspended for a period of time. In lieu of suspension, the School Board and Respondent entered into a Memorandum of Understanding. Pursuant to the agreement of the parties, Respondent received a letter of reprimand on May 3, 1991, sanctioning him for verbal abuse and battery against his students. The letter of reprimand was issued by Mr. Ronald Wright, Director of Professional Standards for the School Board. Respondent was referred to Professional Practices Services, required to attend in-service programs, required to implement those programs in his classroom, and required to participate in an employee assistance program. Respondent was assigned to teach seventh grade science for the 1991- 1992 school year. Many of the students in his seventh grade class also demonstrated behavior problems. Some of the students had been in the drop out prevention class during the previous school year. Respondent was placed on administrative leave effective January 17, 1992. He was suspended with pay on March 11, 1992, and suspended without pay on April 7, 1992. Reduced Effectiveness And Rule Violations In December, 1990, Respondent used excessive force to restrain a female student who was involved in a fight with a smaller male student. Quanika Murray was beating Ladarian Griffin with her fist. After Quanika failed to respond to Respondent's verbal commands, Respondent put both of his arms around Quanika in a "bear hug." Quanika hit Respondent in the ribs with her elbow. Respondent threw Quanika to the ground and pinned her there by holding both of her arms behind her back. When an administrator came to the scene in approximately 60 seconds, Respondent released Quanika Murray. She lunged at Ladarian Griffin again, and Respondent threw Quanika against the wall and pinned her there until the administrator took her away. On December 12, 1990, Respondent used excessive physical force to break up a verbal confrontation between two students and precipitated a physical confrontation between one of the students and Respondent. William Boyd and Tanika Boyd were arguing in the hall. Respondent told the students to go to class. William left but Tanika became verbally abusive and confrontational toward Respondent. Respondent pushed Tanika toward her class. Tanika hit Respondent. When another teacher approached, Respondent and Tanika backed away from each other. Tanika backed into the teacher and fell to the ground. The teacher pinned Tanika to the ground by holding both of her arms behind her. Respondent approached the two and inadvertently kicked sand in Tanika's face. On February 25, 1991, Respondent used unnecessary and excessive physical force to control and discipline a student. School policy prohibited students from being in designated areas without a pass. The policy was intended to give teachers time to prepare for class before school started each morning. Respondent was monitoring a gate to one of the designated areas. Quincy Wilkins attempted to enter the designated area without a pass. When Respondent told Quincy not to proceed without a pass, Quincy became loud, verbally abusive, and pushed Respondent. Respondent grabbed Quincy's arm, put it behind the student's back, and pushed Quincy against the wall. The hold was painful, and Quincy broke free. Respondent took the student to the front office, and charged Quincy with attempting to fight Respondent. On March 20, 1991, Respondent was verbally abusive toward a student, used unnecessary physical force to control and discipline the student, and engaged in unprofessional conduct during an IOWA testing procedure in the school cafeteria. Respondent was acting as one of the monitors for the test. He reprimanded a student for failing to follow instructions by yelling at the student, throwing the student's books on the floor, grabbing the student by the arm, and seating the student at a table closer to the front of the room. The incident created a major disturbance and caused some of the students to miss directions for taking the test. On April 15, 1991, Respondent used excessive physical force to control a student who was not threatening another teacher. Alex Hernandez had been involved in an altercation with another student. Another teacher broke up the fight and reprimanded Alex. Alex was a good student, and the teacher felt that a verbal warning was sufficient under the circumstances. While the teacher was speaking with Alex, Respondent approached Alex from behind, grabbed him by the arms, and threw him against the lockers. Respondent led Alex to the front office with both arms behind the student's back. Respondent charged Alex with trying to hit another teacher. The teacher informed the front office at a later time that Alex had not threatened him or tried to hit him. Respondent yelled at students over minuscule matters. On September 6, 1991, Respondent yelled at a student for chewing gum. Respondent's conduct prompted a complaint by the student's parents and required a conference with the parents to resolve a matter that would have been trivial in the absence of Respondent's conduct. On September 13, 1991, Respondent yelled at students over minuscule matters and called them stupid, arrogant, and rude. An administrator was required to intervene in Respondent's class. On September 16, 1991, Respondent denied a female student's request to use the bathroom. About 15 minutes after class started, a student with menstrual problems requested permission to use the bathroom. The student returned to her seat and approximately five minutes later began leaking blood onto her clothing. The student left the room and sought the assistance of an administrator. On September 20, 1991, Respondent engaged in a confrontation with the assistant principal in the presence of approximately 200 students. Respondent's anger, over the behavior of another student, was misdirected at the assistant principal. Respondent screamed and pointed his finger in the assistant principal's face. On September 30, 1991, Respondent used unnecessary and excessive physical force on a student and filed criminal charges against the student. Ladarian Griffin refused to comply with Respondent's request to behave in class. Respondent properly disciplined Ladarian by placing Ladarian in a separate chair at the front of the class. Ladarian persisted in his disruptive behavior. Respondent called the front office to have someone cover Respondent's class while Respondent ushered Ladarian to the front office. No coverage was provided. When the class was over, Respondent let all of his students leave except Ladarian and blocked Ladarian's exit through the classroom door. Ladarian attempted to run through Respondent. Respondent physically subdued Ladarian and took him to the front office. Respondent requested that the principal file charges against Ladarian with the public resource officer. When the principal refused, Respondent filed charges against Ladarian with the Fort Lauderdale Police Department. Respondent later requested that the charges be dropped. On October 4, 1991, the parents of two students telephoned the school administration to complain about Respondent yelling at their children during a class. The yelling interfered with the students' school work. On October 10, 1991, Respondent improperly accused a student of committing a felony against him. When the bell rang to end the sixth hour class, Respondent refused to allow his students to leave until the students returned their books. Respondent stood at the door to the classroom until each student placed a book on his or her desk. When Respondent turned to answer a knock at the door, Anthony Maclemore ran into Respondent with his head, shoved Respondent to the side, and ran out the door. Respondent mistakenly thought the student was Lashaun Johnson. Respondent wrote a referral for Lashaun and asked the principal to have Lashaun arrested. Mr. Dupont refused. Respondent filed a report and a complaint for prosecution against Lashaun with the local police department. Respondent told Lashaun's guardian that the police were going to arrest Lashaun that evening. The following day Lashaun and Lashaun's guardian participated in a conference with Ms. Etling and Respondent. Respondent realized his mistake and apologized. The mistaken identity caused substantial distress to Lashaun and Lashaun's guardian. Anthony Maclemore was suspended for three days. On October 15, 1991, Respondent yelled at Ms. Etling during a discussion on an educational matter. This incident occurred in the presence of numerous students. On November 13, 1991, Respondent issued a semester grade of "F" to 72 of his 160 students. During a conference with the parents of one of the students who received an "F", Respondent engaged in a tirade against the students' behavior and the failure of the administration to assist him in correcting that behavior. During a conference with the parent of another student, Respondent alluded to the student's bad behavior as a basis for the poor grade but was unable to present one disciplinary referral for that student. Between November 14 and November 21, 1991, several students or their parents complained to the administration of Respondent's verbal abuse and mistreatment of students. Respondent repeatedly yelled at students and disparaged them for their lack of academic effort. On November 21, 1991, Respondent took a folder away from Alex Holmes and told Alex he could get the folder back from Ms. Etling at the end of the day. Alex was disrupting the fifth period class by banging the folder on his desk. The folder contained materials Alex needed for another class. At the end of the class, Alex attempted to retrieve the folder himself, and Respondent attempted to prevent Alex from retrieving his folder before the end of the day. Alex hit Respondent. Respondent attempted to restrain Alex by placing his arms around Alex and pulling Alex's shirt over his head. Before Alex was restrained by other students, Alex hit Respondent in the head, forehead, face, and chest. Alex also used a bone from a skeleton that had been knocked over during the fight to hit Respondent on his leg and leave puncture wounds. Respondent filed criminal charges against Alex. Alex was arrested, prosecuted, and sentenced to one day house arrest. Respondent was absent from work until December 20, 1991, due to injuries sustained from the incident with Alex Holmes. From December 20, 1991, through January 13, 1992, Respondent was involved in several confrontations with students and administrative staff in which Respondent yelled at students and staff. On January 16, 1992, Mr. Dupont informed Respondent that Respondent was being placed on administrative leave. Mr. Dupont instructed Respondent to return to his classroom and remove his personal belongings. Respondent was escorted to the classroom by the school's resource officer. Respondent threw his personal belongings on the floor of the classroom. Documents were discarded and tossed about the classroom leaving it in complete disarray. The school resource officer was instructed by Mr. Dupont not to arrest Respondent. A police officer was called in to escort Respondent from the school campus. Respondent used a school cart to transport his personal belongings to his automobile. Respondent pushed the cart over prior to leaving the school campus. Respondent left his classroom in disarray. The classroom was cleaned by the cleaning service that night and used the next day for another class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the School Board enter a Final Order finding Respondent guilty of misconduct in office and terminating Respondent from his employment with the School Board. It is recommended that The Educational Practices Commission enter a Final Order finding Respondent guilty of engaging in conduct which seriously reduced Respondent's effectiveness as an employee of the School Board and otherwise violated applicable rules of the State Board of Education. It is further recommended that the Final Order of the Educational Practices Commission suspend Respondent's teaching certificate for one year from the date Respondent was first suspended without pay and place Respondent on probation for two years after the expiration of his suspension. Respondent's probation should be subject to such terms and conditions as may be determined by the Educational Practices Commission to be reasonable and necessary. DONE AND ENTERED this 9th day of August, 1993, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 9th day of August, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2388 and 92-3425 Proposed findings of Petitioner, Virgil L. Morgan. 1.-2. Accepted in substance 4.-5. Accepted in substance 7.-8. Accepted in substance 10.-13. Accepted in substance 18. Accepted in substance 3.,6.9. Rejected as not supported by the weight of evidence 14.-17. Rejected as not supported by the weight of evidence 19.-21. Rejected as not supported by the weight of evidence Proposed findings of Petitioner, Betty Castor. 1.-16. Accepted in substance 17.-21. Rejected as not supported by the weight of evidence Accepted in substance Rejected as not alleged in the administrative complaint 24.-25. Accepted in substance 26.-27. Rejected as not alleged in the administrative complaint Accepted in substance Rejected as not supported by the weight of evidence 30.-32. Rejected as not alleged in the administrative complaint Rejected as not supported by the weight of evidence Rejected as not alleged in the administrative complaint 35.-36. Accepted in substance 37.-40. Rejected as not alleged in the administrative complaint 41.-46. Accepted in substance 47.-50. Accepted in substance 51.-52. Rejected as not supported by the weight of evidence 53.-68. Accepted in substance Respondent's Proposed Findings of Fact Accepted in substance Rejected in part as irrelevant and immaterial 2.-13. Accepted in substance 14. Accepted in part and rejected in part as not supported by the weight of evidence 15.-16. Accepted in substance Accepted in part and rejected in part as not supported by the weight of evidence Accepted in substance Accepted in specifics but rejected as to the generalization for the reasons stated in findings 21-44 Accepted in substance Rejected as contrary to the weight of evidence 22.-25. Accepted in substance 26. Accepted in part and rejected in part as contrary to the weight of evidence 27.-33. Accepted in substance 34. Accepted in part and rejected in part as contrary to the weight of evidence 35.-38. Accepted in substance 39. Rejected as contrary to the weight of evidence 40.-55. Accepted in substance COPIES FURNISHED: Charles T. Whitelock, Esquire 1512 East Broward Boulevard Suite 300 Ft. Lauderdale, Florida 33301 Margaret E. O'Sullivan, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Ft. Lauderdale, Florida 33312
The Issue The issue in this case is whether a district school board is entitled to dismiss a teacher for just cause based principally upon the allegation that he failed to prevent or stop two students from engaging in oral sex in his classroom.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Ismael Delgado ("Delgado") had been employed as a teacher in the Miami-Dade County Public School System for approximately 12 years. At all times relevant to this case, Williams was assigned to Booker T. Washington Senior High School, where he taught students with disabilities. The alleged events giving rise to this case allegedly occurred on December 6, 2004. The School Board alleges that on that date, during Delgado's fourth-period class, a female student named R. B. fellated a male student named D. B., while Delgado busied himself on the computer, paying no attention to the brazen carnality on display in his presence. The School Board charges that at about 11:15 a.m., a young man named K. M.——who was not a student of Delgado's——chanced to enter Delgado's locked classroom (somehow without attracting Delgado's attention) to check up on R. B. at precisely the moment she happened to be orally stimulating D. B.'s penis. K. M. was purportedly shocked to see this behavior——too shocked, evidently, to mention anything about it to Delgado, who allegedly remained glued to his computer, oblivious. K. M. later reported the alleged incident to another teacher, investigations ensued, and Delgado ended up being accused effectively of causing the students' sexual misconduct, for which the School Board now wants to fire him. Delgado consistently has maintained——and testified at hearing——that nothing extraordinary occurred in his classroom on December 6, 2004. He claims that he neither saw nor heard R. B. and D. B. engage in any sexual activity; indeed, Delgado insists that such behavior could not possibly have taken place in his presence. The undersigned fact-finder believes Delgado's testimony in this regard, which is more credible and persuasive than the evidence to the contrary, and finds, on the record as a whole, that the evidence is insufficient to establish that R. B. and D. B. engaged in oral sex in Delgado's presence, as charged. Because Delgado witnessed nothing of the sort alleged, it is difficult to make affirmative findings concerning what, if anything unusual, occurred in Delgado's classroom on December 6, 2004. Compounding this difficulty, the students who testified were poor witnesses. The School Board called four purported eyewitnesses to the alleged sexual act: R. B. and D. B., the alleged participants; K. M., the student who serendipitously caught the two flagrante delicto; and A. S., another student in Delgado's class. Each one individually came across as an unreliable witness. None seemed to possess (or was able to articulate) a clear and precise memory of the remarkable alleged events, yet each recounted details that struck the undersigned as being implausible at best. Moreover, taken together, their stories are inconsistent and, in material respects, irreconcilable. In support of these general observations, the undersigned will add the following particular findings, to underscore the care with which the evidence has been weighed. As mentioned, the students who testified gave conflicting accounts about what occurred. The points in conflict are not mere minor details, as the School Board argues, but rather involve material facts, such as when the alleged sexual act took place and what Delgado was doing at that time. The details are critical because it is not enough for the School Board to prove that R. B. and D. B. engaged in oral sex on December 6, 2004. In addition, the School Board alleged and must prove that the sex act took place in Delgado's classroom, while he was present; that Delgado knew or should have known what was going on; and that Delgado failed to take reasonable steps to prevent or stop the students from having oral sex. The following table presents a summary of the eyewitness testimony regarding six basic questions raised at hearing: R. B. D. B. A. S. K. M. When did act occur? In the morning, right before, and continuing after, the bell rang. In the middle of class. It was at the end of class, when the bell rings. Class was over. Before lunch; the bell rang at 11:50 a.m., so between 11 a.m. and 11:30 a.m., but witness is unsure. Before the bell rang. Between 11 a.m. and 11:15 a.m. Before 12:15 p.m. K. M. came after the class was over. Where did At R. B.'s desk, in the At the front of At the At a desk. act occur? front of the class. the room. teacher's desk in the back. (A. S. had to turn around to see.) Where was Delgado? Before the bell rang, at his desk, in the back of the room. After the bell, he was in hallway. At the board, on one side of the classroom, facing away from the students. At the board. Behind the computer. What was Delgado doing? Before the bell, looking at "perfume" on the computer; he didn't see the act. After the bell, Delgado was in the hallway, watching students. Writing on the board with a marker; he didn't know that students were having sex. Not looking at the computer. Writing a science problem (or something) on the board. He didn't see what was happening. Busy looking at the computer. He didn't see any sexual activities. R. B. D. B. A. S. K. M. What did other students do? No one said anything. Students were standing up to shield R. B. and D. B., so Delgado couldn't see the act. Students were not standing up to block Delgado's view. They were playing cards or something. Were other Yes, K. W. & S. J. Yes. T. H. did Doesn't Didn't see that. students Their pants were down something remember; having sex at their ankles. They (unclear). didn't see too? stood by the wall, Also, K. W. that. having regular sex. "jacked" S. J. Students told hem to while they were stop. Delgado couldn’t sitting down at see the couple, but one of the heard the students and teacher's desks. told S. to get off K. No one said They ignored Delgado and continued. anything. Although many discrepancies are obvious, focus on the question of Delgado's whereabouts. Two students placed Delgado behind his computer at the relevant moment. Two others recalled that he was writing on the board. The School Board insists that Delgado was engrossed in his computer; it became invested in this theory during the investigative phase when an examination of the cookies on the hard drive of Delgado's classroom computer turned up electronic evidence that the Yahoo website might have been opened at 11:37 a.m.2 If Delgado were at the computer, however, then both D. B. and A. S. gave unreliable testimony on this significant point.3 Conversely, if D. B. and A. S. were believed, then the reliability of the accounts of R. B. and K. M. would be brought into question. The inconsistencies ultimately undermine the credibility of each of the student witnesses. Apart from the testimonial inconsistencies, none of the students, considered individually, impressed the undersigned as being a trustworthy witness. R. B.'s testimony was vague and childlike, offering little on which the fact-finder could get any traction. Her story, in a nutshell, is that D. B. and some other students goaded her into performing oral sex on D. B., to which she reluctantly consented in the vain hope that compliance would put an end to persistent prodding. R. B. also testified that while she was sucking on D. B.'s penis, two other students (S. J. and K. W., a male and female) were standing by the wall, their pants down at their ankles, having regular sex. This latter is beyond belief and suggests to the undersigned that R. B. has difficulty distinguishing fantasy from fact. That being the case, the undersigned considers her testimony unreliable and has discounted it accordingly. D. B.'s version of the alleged event differs from R. B.'s in one immediately apparent respect: as D. B. tells it, he was practically the victim, R. B. the aggressor who pulled down his pants and commenced sucking on his penis against his wishes. This is unlikely——almost absurd, the undersigned thinks——but D. B.'s testimony in this regard is notable insofar as it exposes a desire (also evident, incidentally, in R. B.'s testimony) to shift the blame——for whatever happened——to someone else. Like R. B., D. B. testified that other students also engaged in sexual activity that morning in Delgado's classroom. In particular, D. B. asserted that K. W. had "jacked" S. J. (i.e. masturbated his penis) while the couple had been sitting down at one of the teacher's desks. The undersigned believes that D. B.'s testimony about K. W. and S. J. is most likely a fabrication.4 Having given testimony that is probably untrue, D. B.'s credibility is suspect and his testimony as a whole must be discounted. A. S. testified that on the morning in question, he turned around and saw R. B. and D. B. at the teacher's desk in the back of room, R. B.'s mouth on D. B.'s penis. Apparently witnessing two classmates openly engaging in a sexual act was not a remarkable event for A. S., for he claims to have looked away and said nothing to the teacher (who was, according to A. S., writing a problem on the board at the time). The undersigned considers this to be implausible. He can scarcely believe that a student in A. S.'s supposed position would react in the blasé manner that A. S. described. The testimony as a whole is not credible. K. M.'s testimony is full of improbabilities. To begin, the undersigned is skeptical that K. M. just happened to be running an errand for his teacher in the middle of fourth period, allowing him to detour to Delgado's classroom to check up on R. B.——whom, he said, he treated "like a sister"——at the very moment she was performing fellatio on D. B. This is too contrived to be believable. Second, the undersigned does not believe that K. M. could have entered Delgado's classroom—— which, it is undisputed, was locked while class was in session—— without Delgado knowing about it, which is what K. M. claims occurred. Third, the undersigned rejects as incredible K. M.'s testimony that he stood watching R. B. suck on D. B.'s penis for a considerable period of time (several minutes), unobserved by Delgado, without saying anything to the teacher. Fourth, the undersigned disbelieves K. M.'s testimony that he slipped out of the secure classroom unnoticed by Delgado. Finally, K. M. testified at hearing with some certainty that he had reported the incident the next day, after carefully considering whether to do so. Yet, the contemporaneous written record reflects that he reported the matter within hours after its alleged occurrence. Standing alone, this latter would be a relatively minor discrepancy. But viewed in the light of other facially improbable details, this discrepancy is more troubling. All things considered, the undersigned harbors genuine doubt regarding K. M.'s reliability as a witness. The School Board offered the unsworn written statements of eight students, including the four who testified at hearing. These are hearsay and hence can be used, if at all, only to supplement or explain other admissible evidence.5 To give a flavor of the nature and quality of the evidence presented in support of the charges against Delgado, the undersigned will reproduce the statements of the non-testifying students below.6 S. J.7 gave a statement dated December 8, 2004, wherein he recounted:8 it happen when [R. B.] was siting between [D. B.] legs and when I went to get my paper from the printer and I turn around I seen [R. B.] sucking [D. B.] penis I was not the only one seen them [K. M.] seen them also this happen 2 minutes before the bell rang that how the other person which is [K. M.] seen them when he walk into the room and seen them thats how everything started. I was not involved with them. J. signed another statement, dated December 14, 2004, in which he wrote: When the problem happen the teacher was right in front of them but he told her to stop but she wouldnt. He told her plenty of times to go down stairs to see Ms. Thomas but she wouldnt. but when they were doing it in the corner in he see them crowed around he gets up to see what's going on thats the only time he gets up to see. the problem doesn't occur now scense she not in the class anymore. K. W.'s9 December 7, 2004, statement provides as follows: when she came in she started to play with [nickname deleted] and he said to leave him and still cap playing with and he got up side on the other side of the classroom and teacher her to stop she cap on playing with him and I when to sleep after that I does not know that they had sex or not. T. H. gave two written statements. The first, dated December 7, 2004, states: I was seating down on the char in I sha [D. B.] in [R. B.] [R. B.] was sukin [D. B.] penis two times. H.'s second statement is dated December 10, 2004. Therein he wrote: Mr. Dilgado trys to stop hus from having six bet we keep on going in he call ower house bet we cap on going. N. H. provided two statements, neither of which is dated. In one he wrote: [D. B.] in [R. B.] was having sex in the classroom. I was go to the computer lab. In the other, N. H. added: I feel I Mr. Delgado did not see [R. B.] in [D. B.] have sex in the class. These written statements do not explain or supplement the admissible evidence; to the contrary, if accepted they would create additional inconsistencies. Thus, the undersigned has not based any findings of fact on their contents. The undersigned has taken note, however, that out of 15-17 students in Delgado's fourth-period class, fewer than half (seven, to be exact) testified at hearing and/or signed a written statement about the alleged incident that was produced at hearing. This causes the undersigned to wonder what, if anything, the other 8- 10 students in the class witnessed on December 6, 2004. Given the paucity of persuasive evidence, the undersigned is better able to find what was not proved to have happened, than to find what likely happened in Delgado's classroom on December 6, 2004, if anything out of the ordinary. To repeat the key finding above, the School Board failed to prove that R. B. and D. B. engaged in oral sex in Delgado's classroom while he was present. While these students probably did not engage in oral sex, the undersigned believes that there is a slightly better than even chance, and thus he finds, that D. B. briefly exposed his penis in Delgado's classroom after the bell had rung and class had been dismissed, when Delgado was outside of the room monitoring the hallway, which is what he was supposed to be doing at the time.10 The undersigned thinks, based on the evidence presented, that it is reasonably possible (the probability being between, roughly, 25 percent and 35 percent) that R. B. might have placed her mouth on D. B.'s penis, but he cannot make this finding because he is not persuaded that this likely occurred. What is likely, and what the undersigned finds, is that D. B.'s exhibition was a type of taunting, teasing, or sexually harassing behavior directed at R. B. It is found that K. M. likely did enter Delgado's classroom, not during the class period as K. M. claimed, but after fourth period had ended, when Delgado was properly in the hallway and the door to his room was unlocked. It is found that, more likely than not, K. M. then learned about D. B.'s harassment of R. B. It is possible that the incident was already being exaggerated in discussions about what had happened. At any rate, by the time K. M. reported the incident, the facts had become distorted. There is no persuasive evidence that Delgado saw or knew about, or reasonably should have seen or known about, D. B.'s misbehavior, which occurred while Delgado was properly monitoring the hallway between classes. There is no persuasive evidence that Delgado reasonably should have foreseen D. B.'s misconduct or that he reasonably could have stopped or prevented it.11 There is no persuasive evidence that Delgado was in any way the cause of, or responsible for, D. B.'s bad behavior. In sum, the undersigned determines as a matter of ultimate fact that, to the extent anything unusual occurred on December 6, 2004, in Delgado's classroom, it was student misbehavior that took place outside the teacher's presence and beyond the reach of his senses. Delgado neither knew nor should have known that anything untoward was occurring. The student or students who engaged in the misbehavior should have been punished, not the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Delgado of all charges brought against him in this proceeding; (b) providing that Delgado be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Delgado back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 2nd day of March, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 2nd day of March, 2006.
The Issue Whether Respondent violated Pinellas County School Board policies related to sexual harassment, inappropriate sexual conduct with students, and inappropriate relationships with students, and if so, whether the violations constitute just cause for her dismissal as a teacher.
Findings Of Fact Respondent, Dorothy Simon (Respondent), has been employed as a teacher by the Pinellas County School Board (School Board) since 1980. Her entire teaching career in the Pinellas County School District has been spent at the Pinellas Technical Education Center (PTEC). Pursuant to her employment, Respondent was issued a professional services contract. During the 1995-96 school year, Respondent taught an electronics technology course at PTEC in which approximately twenty-six (26) to thirty (30) students were enrolled. The course lasted one year, and upon completion of the course work, the students received a certificate. Except for one seventeen year old who was enrolled in the course, all of the students in Respondent's class were between the ages of twenty (20) and forty-eight (48) years old. On or about March 1996, a male student named Thomas Mitchell, who was approximately forty (40) years of age, enrolled in the electronics technology course taught by Respondent. Mitchell, who was not married, held himself out as an ordained minister and told Respondent that he wanted to be called "Reverend Mitchell". Consequently, Respondent as well as students in the class referred to and addressed Thomas Mitchell as Reverend Mitchell. On or about July 15, 1996, Mr. Mitchell gave the Respondent a letter in which Mr. Mitchell expressed a physical and emotional attraction to her and discussed starting a relationship with the Respondent. Prior to July 19, 1996, while on school premises, Respondent approached Mr. Mitchell and asked him if he would accompany her and her thirteen year old daughter to the Summer Olympics in Atlanta, Georgia, and act as their bodyguard during their stay. On or about July 19, 20 and 21, 1996, Mr. Mitchell accompanied Respondent and her daughter to the Summer Olympics in Atlanta. Mr. Mitchell drove the Respondent's car to Atlanta. While in Atlanta, Mr. Mitchell stayed with Respondent and her daughter in a hotel room which Respondent had reserved and paid for a year in advance. Respondent paid for Mr. Mitchell's meals and gave him $50.00 spending money. Mitchell later return the $50.00 to Respondent. After class, on or about July 22, 1996, Respondent drove several students to a nearby bus stop and Mr. Mitchell to Workforce, a center near PTEC where he tutored children. While Respondent was driving Mr. Mitchell to Workforce, she asked him if he would house-sit for her while she and her daughter were on vacation for two weeks. The Respondent offered to pay Mr. Mitchell $100.00 each week, and in return he was to feed her pets, clean her pool and live in her house while she was vacationing. Mr. Mitchell accepted the Respondent's offer. After class, on July 25, 1996, the last day of school before the summer break, Respondent drove several students to the bus stop and gave Mr. Mitchell a ride to his mother's apartment where he lived. Both the bus stop and Mr. Mitchell's mother's apartment were in the vicinity of PTEC. Respondent had given Mitchell a ride home on one other occasion and often gave other students rides to various places when they so requested. Shortly after Respondent dropped Mr. Mitchell off at his mother's apartment, while driving home, Respondent was involved in an automobile accident in which Respondent's vehicle struck a teen-age girl. After police and paramedics arrived at the scene of the accident, Respondent remained on the scene. However, about one hour after their arrival, the police who were investigating the accident advised Respondent to go home. Respondent was quite shaken, and did not feel that she was in any condition to drive herself home. Rather than driving herself home, Respondent went to Mr. Mitchell's residence, which was nearby, and asked him to drive her home. Mr. Mitchell complied with Respondent's request. On the way to Respondent's house, Mitchell and Respondent made two stops. The first stop was at a bank where the Respondent made a cash withdrawal for the $200.00 that she was going to give Mr. Mitchell for house-sitting. The second stop was at a liquor store where Mr. Mitchell, at the Respondent's request, went inside and purchased a bottle of vodka. Mr. Mitchell then drove Respondent home and when they arrived, Respondent had one drink of orange juice and vodka. Respondent then went into her swimming pool to calm herself and was shortly thereafter joined by Mr. Mitchell. While both were in the pool, Respondent asked Mr. Mitchell to hug her because she wanted to be comforted. Mr. Mitchell then hugged Respondent and the two engaged in sexual intercourse. On or about July 27, 1996, Respondent and her daughter drove to Mr. Mitchell's residence and picked him up. Mr. Mitchell accompanied Respondent and her daughter to a swim meet in which the daughter was participating. After the swim meet, Mr. Mitchell drove the Respondent and her daughter to the airport for their departure on a two-week vacation. Mr. Mitchell returned to Respondent's home and house- sat for Respondent for two weeks while she was away on vacation, pursuant to their previously made agreement. As promised, Respondent paid Mr. Mitchell $100.00 per week for house-sitting. While on vacation, Respondent received one phone call from Mr. Mitchell in which he requested an additional $100.00. Respondent wired Mr. Mitchell the $100.00. When Respondent returned from vacation, she found that Mr. Mitchell had trashed and vandalized her house. She later determined that Mitchell had run up an exorbitant phone bill and had stolen approximately $2,300 from her by making unauthorized cash withdrawals on a credit card that had been mailed to her home while she was away. When school began at PTEC in August 1996, Mr. Mitchell was still enrolled as a student in Respondent's electronics technology course. At that time Mr. Mitchell had approximately two weeks of course work remaining to be completed in order to receive a certificate of completion. Upon returning to PTEC after the summer break, Respondent went to see Dr. Warren Laux, Director at PTEC, concerning Mr. Mitchell. Respondent was afraid of Mr. Mitchell, and requested that he be removed from her class because she did not want to come in contact with him. Respondent explained that Mr. Mitchell house-sat for her during a two-week vacation and left the house a mess, stole money from her and ran up an exorbitant phone bill during his stay. Because she had notified police of these incidents involving Mr. Mitchell, the Respondent told Dr. Laux that the situation created a conflict for her if Mr. Mitchell remained in her class. During their discussion, Dr. Laux asked Respondent if there had been any sexual relationship between herself and Mr. Mitchell. The Respondent stated that she had sex with Mr. Mitchell on one occasion. However, Respondent did not give details of the time, place, or circumstances surrounding that encounter. Dr. Laux explained to Respondent that for the moment it appeared that Mr. Mitchell had done nothing which violated the Student Code of Conduct and, accordingly, there was no valid reason to remove him from her class. During August 1996, Respondent told some students in her class that the person who had house-sat for her when she was away on vacation had trashed her house. However, Respondent did not identify Mr. Mitchell as that person. During August 1996, while in her classroom, Respondent told Mr. Mitchell that she would rather scratch his eyes out than have him in her class. At the time this comment was made by Respondent, there were students in the classroom, but on the other side of the room. Respondent's comments to Mr. Mitchell were not made loudly enough for other students to hear. The School Board's Office of Professional Standards conducted an investigation regarding the allegations that the Respondent had been involved with a student. As a part of this investigation, Respondent was interviewed on three occasions: August 28, 1996; September 3, 1996; and mid-September 1996. During each interview, Respondent admitted that on one occasion she had engaged in sexual intercourse with one of her students, Thomas Mitchell. Respondent's conduct impaired her effectiveness as a teacher. Respondent failed to maintain a professional relationship with her student Thomas Mitchell and used her position to enter into a personal relationship with him. Once that relationship deteriorated, as admitted by Respondent, it was impossible for her to work with that student, and her effectiveness was significantly impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be dismissed from her position as a teacher with the Pinellas County School Board.DONE and ENTERED this 4th day of April, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1997. COPIES FURNISHED: Keith B. Martin Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Ms. Dorothy Simon 6315 Eight Avenue North St. Petersburg, Florida 33710
The Issue The issue in this case is whether the Education Practices Commission should revoke or otherwise discipline the Respondent’s educator certificate for allegedly making disparaging or embarrassing comments to and about students in his classroom, including calling them idiots or dumb.
Findings Of Fact The Respondent has a bachelor’s degree in astrophysics and a master’s degree in physics from the University of Central Florida. He has worked for Disney World’s education programs and at the Orlando Science Center. When he decided to go into teaching, he got a temporary certificate in February 2013. He started teaching at East River High School in Orange County in April 2013, as an end-of-the-year replacement. When he completed his master’s degree, the certificate was made permanent, and he holds Florida Educator Certificate 1191412 in the area of physics, valid through June 30, 2019. He was hired as a full- time science teacher at East River in the fall of 2013. In September 2013, a student complained that the Respondent insulted the school band and some of its members. The Respondent wrote a letter in response to the charge in which he denied any knowledge of what he might have said to insult any student or disparage any extracurricular activity of any student and absolutely denied any intent to insult or disparage the band or any band member. He also made an impassioned statement of his deep concern for his students and of the many ways in which he had been supporting the extracurricular activities of his students. The only other evidence on the subject was in the form of hearsay statements written by students who did not testify. Some of the students wrote that they never heard the alleged insults and disparagements. The evidence was insufficient to support a finding that there were any insults or disparagements. The September 2013 band complaint was found by the school administration to be unconfirmed. Nonetheless, the Respondent was given a letter of guidance, also called a directive to: exercise good judgment when engaging in discussions with students; use positive, encouraging comments to motivate and inspire students; take appropriate measures in discussions with students, so as not to expose a student to unnecessary embarrassment or disparagement; and protect all students from conditions harmful to learning and mental and/or physical harm. A letter of guidance or directive is not disciplinary in nature. In January 2014, a female student complained that the Respondent made her feel uncomfortable by standing close to her and by staring at her chest. The only evidence on the subject was in the form of hearsay statements written by students who did not testify. The evidence was insufficient to support a finding of fact in this case. Nonetheless, the January 2014 complaint was found by the school administration to be confirmed, and the Respondent was given another letter of guidance or directive to: consider in advance how to respond to various situations involving students and always maintain respectful distance so as not to invade personal space of individual students; and exercise care and professional judgment when engaging with students so that others would not perceive or misinterpret his behavior as inappropriate. No other incidents came to the attention of the school’s administration until May 27, 2014. Meanwhile, the Respondent’s performance as a teacher for 2013/2014 was evaluated by the school’s administration to be highly effective. On May 27, 2014, a student named Tanner Hearn complained to the school’s administration that the Respondent had been unfair, mistreated him, made negative comments about him, and called him names. The Tanner Hearn complaint was triggered by events beginning at the end of April or early May of 2014. Tanner wanted to raise a grade he got on one of his assignments. His mother, who is a teacher, suggested that Tanner ask the Respondent if he could redo the assignment. The Respondent refused because the assignment was 2-3 weeks late. After the refusal, Tanner told his mother that the Respondent had allowed other students to redo assignments to raise their grades. Tanner’s mother advised Tanner to ask again. The Respondent again refused. After the second refusal, now believing the Respondent was treating her son unfairly, Tanner’s mother advised him to e-mail the Respondent, which he did three times. Each communication with the Respondent was more demanding than the last. Finally, Tanner’s mother e-mailed the Respondent to support her son and strongly suggested that the Respondent let Tanner redo the assignment rather than make them set up a parent- teacher meeting with guidance and the school’s administration. The Respondent defended himself and refused to budge. The Respondent testified that his policy on redoing assignments evolved during the school year. Earlier in the year, he allowed student assignments to be reopened after the due date. Later, he settled on a policy that requests to redo an assignment had to be made before the due date. He testified that Tanner knew the policy and acknowledged it during a discussion they had earlier in the school year when Tanner was considering dropping physics. In late May 2014, when Tanner and his friends were at his house discussing the Respondent’s perceived unfairness towards him, the discussion turned to negative comments and name- calling by the Respondent directed towards Tanner previously during the school year. Tanner’s mother overheard the discussion. She thought the negative comments and name-calling were inappropriate and evidence of the Respondent’s unfairness towards her son. Mrs. Hearn called East River’s assistant principal, whom she knew personally, to complain and demand that something be done. This triggered an investigation by the school. As part of the investigation, the school’s administration interviewed numerous students to see if they ever heard the Respondent call any student derogatory names or embarrass or disparage them. Some students answered in the affirmative and reported what they remembered hearing. Others answered in the negative. Rachel Johnson, one of the students who reported hearing the Respondent call Tanner names, also stated that the Respondent embarrassed her by insulting her religion in the course of a discussion about a film he showed in class. The school’s administration investigated this new charge as well. Several students gave statements saying no improper commentary occurred. No other student statements corroborated the new charge. In her statement to the school’s administration, Rachel Johnson also complained that the Respondent gave exams early, contrary to school policy. No other student statements or testimony supported this charge. The school concluded its investigations in late August 2014. The school’s administration found that the Tanner Hearn and Rachel Johnson charges were confirmed by the investigation. The Respondent was given another letter of guidance or directive, this time accompanied by a reprimand, for failure to follow the approved exam schedule, improper use of video, and negative comments made to students. The Respondent testified that he disputed the reprimand and it was withdrawn, but there was no other evidence that it was withdrawn. In December 2014, Rachel Johnson gave another statement, which included a charge that the Respondent called her a dumb blonde and a stereotypical female. No witness statements corroborated this charge. Rachel Johnson testified in support of the charge. There was no other testimony or evidence in support of the charge. Only a few of the students who gave written statements testified at the hearing. Several testified that on occasion the Respondent would call certain students names like idiot, jackass, and stupid. They testified that the Respondent seemed to do this mostly to the three football players in the class, especially Tanner Hearn. There also was testimony that the Respondent would sometimes ask for a volunteer to answer a question but say something like, “anyone but Tanner since he won’t know the answer.” The context of these kinds of comments by the Respondent was not clear from the evidence. Probably, some were made out of anger or frustration after Tanner disrupted the class or acted out. Some were made jokingly as part of banter back and forth. The impact of these kinds of comments by the Respondent on Tanner and the other students also was not clear from the evidence. No student complained about them at the time they were made. Often, Tanner would appear to shrug them off and say something like, “ha, ha, very funny.” Tanner testified that, however he may have responded at the time, he was affected by the comments, and they made him less likely to participate in class. Some of the students testified that the comments were not made in a joking manner and that they were embarrassed for Tanner and sometimes said to him something like, “I can’t believe he said that to you.” Rachel Johnson testified in support of her anti- religion and dumb blonde charges. There was no other testimony in support of those charges. The Respondent denied them. After the investigations began in May 2014, Tanner’s demeanor and attitude towards school changed markedly. Before the investigations, he was a good if not a model student. He had a positive and enthusiastic attitude about school earlier in the year, especially during football season. During the investigations, he seemed to some to be quieter and less enthusiastic. In his mother’s words, the controversy of the investigations put a damper on the last few weeks of the school year. The precise reason for Tanner’s change of attitude towards school during the investigations is not clear. He and his mother agreed that he was not confrontational, and he did not want his mother to complain to the school. In addition, Tanner soon found himself the subject of another investigation. When the Respondent started hearing rumors that Tanner was telling other students he was going to get the Respondent fired, the Respondent told the school’s administration and asked for an investigation. Tanner testified that he asked the school’s administration what he should do at that point that he was advised to stop talking about the investigations. These developments may have been factors in Tanner’s change of demeanor at the end of the school year. The Respondent testified that he was not guilty of any of the charges. East River’s assistant principal testified that the Respondent admitted to her during the investigation that he called Tanner Hearn an “idjiout” (a variation of the word idiot). The Respondent testified that he did not remember making that admission. The evidence was clear and convincing that the Respondent called Tanner and other students names like idiot, jackass, or stupid on occasion during the course of the 2013/2014 school year. Sometimes this was done out of anger or frustration after Tanner disrupted the class or acted out. Sometimes the words were spoken loud enough to be overheard. Sometimes, it was done in a joking manner, as part of banter back and forth. The evidence was not clear and convincing that the Respondent reasonably knew or should have known that the student involved would be embarrassed or humiliated. None of the other charges against the Respondent were proven by clear and convincing evidence. The Respondent continued teaching at East River during the 2014/2015 school year. The school’s administration evaluated the Respondent’s performance as a teacher for the 2014/2015 school year to be effective. The Respondent did not return to teaching after the 2014/2015 school year because the investigations and their outcomes took a toll on him and he felt burnt out on teaching.
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 the Administrative Complaint. DONE AND ENTERED this 15th day of December, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 15th day of December, 2016. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Melissa C. Mihok, Esquire Melissa C. Mihok, P.A. Suite 445 201 East Pine Street Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
