The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent from his employment contract.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control and supervise the public schools within Manatee County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was employed by the School District. Mr. Gagnon has been in the education field for approximately 23 years, and has been with the School District since 2002. Mr. Gagnon served as an assistant principal at Lakewood Ranch High School and as principal at Palmetto High School, both of which are in Manatee County. Mr. Gagnon was the principal at MHS beginning with the 2007-2008 school year. Mr. Gagnon served as the MHS principal until he transitioned to the position of assistant superintendent for Curriculum and Instruction for the School District in January 2012. Mr. Gagnon served as the interim superintendent for approximately one month in September/October 2012 and then returned to the assistant superintendent position when another person was appointed interim superintendent. In 2005 the School District posted a position for a specialist in the OPS to investigate alleged School District employee misconduct. The then superintendent wanted to establish a standardized method of investigating employee misconduct. Ms. Horne interviewed for the position, and was appointed as the first OPS specialist. As there were no School District policies or rules in place when she started, Ms. Horne assisted in writing the School District’s OPS policies. Sections 39.201 and 39.202, Florida Statutes, are incorporated into the School District’s policies and procedures as Policy 5.2(1), Policies and Procedures Manual, School Board of Manatee County (2013), which provides: Mandatory Duty to Report Suspected Child Abuse. All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it. Employees or agents so reporting have immunity from liability if they report such cases in good faith. This includes suspected child abuse of a student by an employee. Ms. Horne provided the training on this policy and other policies to School District employees. As the OPS investigator, Ms. Horne was to “investigate alleged employee misconduct and other matters as assigned” to her by her supervisor. Ms. Horne never had the authority to determine whether or not someone had engaged in misconduct or to make any recommendations as to what may or may not have happened. Her role was to simply gather the information, prepare a report of her findings, and provide that report to her supervisor. In November 2012, Mr. Martin was the School District’s assistant superintendent for District Support, and Ms. Horne’s direct supervisor. During her eight-year tenure as the OPS specialist, Ms. Horne investigated over 800 cases of employee misconduct. The School District uses a progressive discipline model for its employees. Should an employee exhibit behaviors that could be considered inappropriate or misconduct, the School District has a step-by-step method of taking disciplinary action, from simply talking with the employee up to termination of employment. If it is an egregious action, such as sexual conduct with a student, immediate termination is an option. The discipline begins on-site by the site-based managers where the incident occurs. Those site-based managers could have that simple conversation, and if need be, it could progress to a verbal directive, a memorandum of conference, and/or a written reprimand. Site-based managers include principals, assistant principals, directors, and assistant directors.3/ In those instances where the disciplinary action could lead to days without pay or termination, actions that could only be taken by the School Board, OPS would open an investigation. During the first two weeks of November 2012, Mr. Rinder was approached by several MHS teachers regarding concerns for their students. When Mr. Rinder spoke with Mr. Sauer, MHS’s principal, about those concerns, Mr. Sauer asked Mr. Rinder to type up the list (Rinder’s List) and give it to Mr. Sauer. Mr. Sauer, in turn, forwarded Rinder’s List to the OPS. Rinder’s List: [1.] One staff member reported a phone call to a female student during class. The student was upset by the call and told the staff member that Mr. Frazier had asked her if “she had gotten her period and did she need him to go to the drug store for her.” [2.] One staff member reported that Mr. Frazier repeatedly called for a female student during class. When asked if it was important, Mr. Frazier said “yes”. [sic] When the staff member asked the student what the problem was, the answer was “My mom wanted to take me to lunch and he helped me do it”. [sic] [3.] Male student was failing a core class. He told the teacher that “Frazier told me that he will change the grade”. [sic] [4.] A female student was observed getting into Mr. Frazier’s vehicle after school hours and was transported. [5.] Female student told a staff member that she overheard students talking about several meetings in the park late at night with Mr. Frazier. She stated that Mr. Frazier placed and [sic] empty water bottle between her legs as she was walking down the sidewalk. [6.] Female student was observed sitting on Mr. Frazier’s lap eating cake off his fork. [7.] Female student reported to a staff member that Mr. Frazier made a comment to a student in the hall that he had put her on skype [sic] and she took a picture and has it saved on her cell phone. She is scared that he will retaliate if she tells. [8.] Female student told a staff member that Mr. Frazier had made comments to her at the Tiki Bar that she was old enough to be there and they could talk. When she refused to talk with him, she started having issues with Mr. Frazier at school. She transferred to LIFE program to get out. [9.] Female student was reported to a staff member by several students who stated that she was having a relationship with Mr. Frazier. She transferred schools. This conversation was overheard by two teachers in the hall. [10.] The Math Department this week was discussing Mr. Fraziers [sic] questionable activities. Upon receipt of Rinder’s List, Ms. Horne was directed to open an investigation into the allegations contained therein. The subject of the investigation was an MHS parent liaison4/ and assistant football coach named Roderick Frazier. In a very general sense, the allegations involved misconduct by a teacher. Rinder’s List initiated the Frazier investigation. However, Rinder’s List contains blatant hearsay which cannot form the basis for a finding of fact without corroboration. There was no testimony provided by any students mentioned in items 2, 3, 5 (first sentence), 7, 8, or 9 above; hence, it is impossible to verify what occurred. Item 10 merely indicates that an entire department at MHS discussed “questionable activities” by an individual, but it provides no specific activities. There was no credible, non-hearsay evidence in this record to substantiate any of these allegations (items 2, 3, 5 (first sentence), 7, 8, 9 or 10). On November 14, 2012, an email with an attached letter from then-Superintendent David Gayler, was sent to Mr. Sauer around 8:40 p.m., advising him that Mr. Frazier was to be placed on paid administrative leave (PAL) on Thursday, November 15. Mr. Sauer notified Mr. Frazier appropriately. The School Board’s policy regarding placing an employee on PAL is dependent upon whether there is a potential for harm to any student and/or the employee could incur a suspension or termination from employment. Due to an on-going investigation at a different school, Ms. Horne did not arrive at MHS to begin the investigation until the afternoon of Thursday, November 15. Ms. Horne first interviewed Mr. Rinder, as Rinder’s List did not contain any names of teachers or students who were allegedly involved. Upon obtaining the names of the teachers who had expressed concerns, Ms. Horne interviewed most of the teachers on November 15. By the time Ms. Horne completed her teacher interviews, the students had been dismissed from school and were no longer available. At some time, Mr. Rinder observed a female student getting into Mr. Frazier’s car after school (Rinder’s List, Item 4). Mr. Rinder was not alarmed by this sight, but merely thought it was Mr. Fazier’s son’s girlfriend getting a ride. There was no testimony that Mr. Rinder ever brought this information to Mr. Gagnon’s attention. Ms. Aragon brought two concerns about Mr. Frazier to Respondent’s attention: 1) she thought that girls were sitting too close to Mr. Frazier in golf carts at MHS; and 2) Mr. Frazier had called her classroom telephone to talk with a female student. Neither Ms. Aragon nor Mr. Gagnon were absolutely certain as to when these concerns were brought to Mr. Gagnon’s attention: Ms. Aragon thought they were brought to his attention during one conversation, and Mr. Gagnon thought there were two separate conversations approximately a year apart, based on the actions that he took to address them. Mr. Gagnon’s testimony is more credible. Upon being told of the golf cart issue, Respondent immediately went to the MHS courtyard and observed Mr. Frazier with a female student sitting in his golf cart. At the same time, Respondent observed two other assistant principals with students of the opposite sex sitting in their golf carts. Respondent addressed Mr. Frazier first, and then issued a directive to his discipline staff that no one was to allow a student to just sit in a golf cart. Respondent directed that if there was a legitimate reason to transport a student, that was fine, but students were no longer to just sit in the golf cart. With respect to the telephone incident (Rinder’s List Item 1), Mr. Frazier called Ms. Aragon’s classroom and bullied his way to speak with the female student. After the student hung up the phone with Mr. Frazier, she appeared to be upset. Ms. Aragon immediately questioned the student, and Ms. Aragon understood that Mr. Frazier had inquired about the student’s menstrual cycle. Ms. Aragon thought it was “inappropriate” for Mr. Frazier to be speaking with a female student about her menstrual cycle, but Ms. Aragon testified that she did not know if the conversation impacted the student’s day. Ms. Aragon was not privy to the actual conversation between the student and Mr. Frazier, and the student with whom the conversation was held did not testify. The actual telephone conversation is hearsay. Ms. Aragon sought guidance from the teacher’s union president as to what to do. When Ms. Aragon spoke with Mr. Gagnon about Mr. Frazier’s telephone call, Mr. Gagnon immediately turned the issue over to an assistant principal for investigation. Based on the report from the assistant principal, Mr. Gagnon was not concerned that anything inappropriate or sexual was happening.5/ At some point in time, Ms. Coates overheard two female students comment about Mr. Frazier. Although Ms. Coates asked the students to tell her directly the basis for their comment, the students declined. (Neither student testified at hearing.) Shortly thereafter, Ms. Coates told Respondent the students’ comment. Ms. Coates heard Mr. Gagnon respond that something was going around on Facebook. Mr. Gagnon did not remember Ms. Coates telling him of the students’ comment. However, Mr. Gagnon routinely reviewed the disciplinary records for the three parent liaisons and was satisfied that Mr. Frazier was not showing favoritism in his discipline to one group of students over another. It is not uncommon for students to perceive that a teacher is showing favoritism towards a student or group of students. At the conclusion of the teacher interviews on November 15, Ms. Horne understood that the allegations had occurred a year or two before they were reported in Rinder’s List. This thought process was reinforced when Ms. Horne met with some of the MHS administrators in Mr. Sauer’s office where they had a telephone conference with Mr. Martin. Following the telephone conference, Ms. Horne returned to the School District’s main office and again conferred with Mr. Martin for directions. On November 15 or 16, 2012, Ms. Horne had a brief conversation with Mr. Gagnon at the School Board building. Mr. Gagnon asked about the Frazier investigation. Ms. Horne responded that the only issues she was hearing had previously been addressed, and that Ms. Horne would be returning for other interviews. Additionally, Mr. Martin had a brief conversation with Mr. Gagnon about the Rinder List allegations. Mr. Gagnon maintained that the allegations were old and had been dealt with appropriately. Ms. Horne shared with Mr. Martin that the Rinder List allegations were old and had been dealt with previously. Based on this information, Mr. Martin, in his sole discretion, determined to remove Mr. Frazier from PAL on November 16, 2012, and return him to work. Ms. Horne was surprised by this, as her investigation was incomplete. Ms. Horne interviewed Mr. Frazier as well as one other teacher, on November 16, 2012. Although Ms. Horne had the name of an alleged victim, Mr. Martin directed her not to interview that student at that time. In January 2013, a former MHS female student, D.K., wrote a letter to MHS alleging that Mr. Frazier did various inappropriate acts towards her while she was a student at MHS during the 2010-2011 and 2011-2012 school years. In her letter, D.K. stated that she became close to Mr. Frazier during her two years at MHS. D.K. met Mr. Frazier at a park near her home, but during her second year at MHS (2011-2012), Mr. Frazier “started being weird with [her] and saying inappropriate things to” her. D.K. admitted that she frequently rode in Mr. Frazier’s golf cart around the school, and that Mr. Frazier put a water bottle (Rinder’s List Item 5, second sentence) in between her legs (between her knees and crotch) as they were sitting in the bleachers at the softball field and while sitting in a golf cart. D.K. came forward with the letter because she had heard of the Frazier investigation and that it was being closed. Several days after D.K.’s letter was received in OPS, Ms. Horne interviewed D.K., who was accompanied by her mother. Ms. Horne was unable to confirm D.K.’s credibility completely because Ms. Horne left OPS prior to the conclusion of the Frazier investigation. The most disturbing part of D.K.’s testimony came when D.K. admitted, and Ms. Peebles confirmed, that during the 2010- 2011 school year, Ms. Peebles walked into Mr. Frazier’s office unannounced and observed D.K. sitting on Mr. Frazier’s lap holding a piece of cake (Rinder’s List Item 6). Ms. Peebles immediately instructed D.K. to get off Mr. Frazier’s lap and to sit in a chair on the other side of his desk. Mr. Frazier appeared to be unfazed by Ms. Peebles entering his office unannounced and witnessing this scene. Mr. Frazier proceeded to handle the disciplinary matter that Ms. Peebles had brought to him. Ms. Peebles reported the observation to an assistant principal, Matthew Kane, but not to Respondent. Ms. Peebles did not believe there was abuse on-going, but thought it was “not appropriate” for Mr. Frazier to have a student sitting on his lap. D.K. testified that “after he [Mr. Frazier] got in trouble he started getting me [D.K.] in trouble for things that I had been getting away with the whole time I was there [at MHS].” D.K. did not provide a time-frame or what “trouble” Mr. Frazier had gotten her into while D.K. was at MHS, and no evidence was provided otherwise. Further, D.K. never told Mr. Gagnon of any issues involving Mr. Frazier. D.K. was enrolled at a different local high school when Mr. Frazier was placed on PAL. Ms. Peebles relayed another issue regarding Mr. Frazier; however, it involved hearsay and was not corroborated by the student who initially reported the issue to Ms. Peebles. The absence of direct, non-hearsay testimony precludes a finding of fact as to that issue. In late January 2013, Ms. Horne transferred to an assistant principal position at a school district elementary school. Both Ms. Horne and Mr. Martin confirmed that the Frazier investigation had not been completed when Ms. Horne left OPS. Ms. Horne had not submitted a written report to her supervisor which would have signaled the completion of the Frazier investigation. The specialist position in OPS remained vacant until July 2013 when Mr. Pumphrey assumed the position. Mr. Pumphrey confirmed that there “had been an ongoing investigation both at the School District level and law enforcement surrounding Rod Frazier.” In an effort to gain speed in his investigation, Mr. Pumphrey reviewed the Frazier investigation file and became aware that the School District “had stalled their investigation pending the outcome of the criminal investigation.” Mr. Pumphrey reviewed Mr. Frazier’s personnel file and determined there was “no documentation of any discipline to Mr. Frazier.” Additionally, Mr. Pumphrey pulled all the published information including media accounts and police reports, and reviewed them. As Mr. Martin had been instrumental in hiring Mr. Pumphrey, the two spoke several times “because this thing [the Frazier investigation] was all over the place.” Several days after re-starting the Frazier investigation, Mr. Pumphrey expressed to the superintendent his concern about the close proximity of Mr. Pumphrey’s office to that of Mr. Gagnon and requested that Mr. Gagnon6/ be placed on PAL. The superintendent did so. During the course of the Frazier investigation, Mr. Pumphrey considered that Mr. Gagnon’s actions or inactions during the course of the Frazier investigation constituted “administrative negligence and/or intentional misconduct.” Mr. Pumphrey broadened the Frazier investigation to determine whether district administrators “had prior knowledge of complaints by female students and faculty regarding inappropriate conduct involving Frazier and, if so, why the complaints were not timely addressed.” There is no credible, non-hearsay evidence in the record to substantiate that Mr. Gagnon failed to investigate or report inappropriate conduct by a faculty member. When apprised of questionable or suspect conduct, Mr. Gagnon took the steps necessary to inquire. The absence of direct, non-hearsay testimony precludes a finding that Mr. Gagnon acted in the fashion alleged in the administrative complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 30th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 June, 2014.
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, 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 3rd day of June, 2014.
The Issue The issue in the case is whether the Polk County School Board (Petitioner) has just cause for terminating the employment of Respondent, David McCall.
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner under a professional services contract as a classroom teacher at Lake Region High School, a unit of the Polk County Public School System. On Wednesday, October 3, 2007, a student entered the Respondent’s classroom approximately ten minutes after class had commenced. The student’s tardiness was apparently related to her participation as a donor in a blood drive occurring at the school on that date. At the time the student entered the classroom, the Respondent was engaged in administering a standard quiz, and the time allotted for the quiz was about to end. The Respondent directed the student to remain outside the classroom and take the quiz. The student advised the Respondent that she donated blood and, feeling dizzy, had hit her foot on a doorway. She told the Respondent that she injured her toe and requested that she be allowed to go to the school clinic. The Petitioner presented a statement allegedly written by the student asserting that her toe was bleeding at the time the Respondent observed the toe. The student did not testify, and the written statement is insufficient to establish that the toe was bleeding at the time she entered the classroom. The Respondent testified that he observed the toe and saw perhaps a minor abrasion but saw no evidence of serious injury. The Respondent declined to refer the student to the clinic and again instructed the student to remain outside the classroom and complete the quiz. The student remained outside the classroom and presumably began taking the quiz. Shortly thereafter, another teacher walking in the hallway observed the student sitting outside the Respondent’s classroom with a paper towel under her foot. The teacher observed the student shaking and blood on the towel and asked the student about the situation. The student advised the teacher of the circumstances, stating that she felt like she was going to “pass out.” The teacher, with the assistance of a third teacher, obtained a wheelchair, retrieved the student’s belongings from the Respondent’s classroom, and advised the Respondent that the student was being taken to the clinic. After the student was transported to the clinic, her mother was called. The mother came to the school and retrieved her daughter, observing that the toe was bloody and swollen. The mother subsequently took her daughter to a doctor and testified that the student was referred for x-rays of the injured toe. Later on October 3, 2007, the student’s mother contacted the school principal, Joel McGuire, to inquire as to the manner in which the matter had been handled by the Respondent. The principal advised the mother he would follow up on her inquiry. On Thursday morning, October 4, 2007, Principal McGuire sent an email to the Respondent and asked him to come to Principal McGuire’s office during a planning period or after 2:30 p.m. “to confirm some information” about the student. The Respondent did not respond to the email and did not comply with Principal McGuire’s request to meet at that time. After receiving no response from the Respondent, Principal McGuire left a copy of the email in the Respondent’s mailbox at approximately 2:30 p.m. on Thursday, October 4, 2007, with a handwritten note asking the Respondent to come to the principal’s office on the following Friday morning “before school.” The Respondent did not respond to the note left in the mailbox and did not appear at the principal’s office prior to the start of Friday classes. Based on the lack of response, Principal McGuire sent another email to the Respondent on Friday, October 5, 2007, and asked him to come to the principal’s office at 6:30 a.m. on Monday. The email advised that the meeting was “to discuss the situation which occurred on Wednesday, October 3rd” so that the principal could respond to the mother’s inquiry. Although the Respondent was routinely present on the school campus by 6:30 a.m. on school days, the Respondent replied to the principal and declined to meet at that time, stating that the “proposed meeting time is not within my contracted hours.” The principal thereafter emailed the Respondent and requested that he come to the principal’s office at 10:30 a.m. on Monday, October 8, 2007. The email stated as follows: Mother is really needing information concerning the situation which took place in your class. I do need to meet with you and provide a response to her. I believe 10:30 a.m. is during your planning period. Thanks for coming by my office. The principal received no response to this email and the October 8, 2007, meeting did not occur. The principal thereafter sent a letter to the Respondent dated October 12, 2007, which stated as follows: I am requesting a meeting with you Monday, October 15, 2007, at 8:00 a.m. I will provide a substitute in your classroom in order for you to meet with me. The meeting will be very brief. I need some information about [student], a student you had in 2nd period geometry, in order to inform her mother. This is the sixth request for a meeting. Failure to comply with my request will be deemed insubordination and will require additional actions. The Respondent attended the meeting, but refused to provide any information, stating, “I am not going to respond to you.” By letter dated October 22, 2007, the Respondent received a written reprimand for his “refusal to assist in the investigation of an incident involving [student] on October 3, 2007." The letter advised that the first step of progressive discipline, a verbal warning, was being omitted because of the “seriousness of your actions and the possible consequences.” In relevant part, the letter provided as follows: Attached to this letter is my memorandum setting forth the events and facts as I have best been able to determine. As indicated, you have been uncooperative in our effort to investigate the facts surrounding this incident. Most significantly, when we were finally able to meet in my office on October 15, 2007, you refused to discuss the circumstances surrounding [student’s] situation and you stated specifically, “I am not going to respond to you.” This situation involved an injured student and our school’s response to that incident. Your refusal to assist or participate in the investigation is contrary to your obligation as a teacher to respond suitably to issues of a student’s health and welfare, is adverse to the school’s obligation to address concerns of the parents, and is completely contrary to your obligations as an employee of the Polk County School Board. Please understand that this letter of reprimand is addressed solely to your refusal to participate, cooperate or assist in the investigation of this incident. Should the outcome of the investigation indicate that your conduct in dealing with the student was inappropriate, I am reserving the right to request further disciplinary action by the Superintendent. Please note that a suspension without pay is the next step in progressive discipline as set forth in the Collective Bargaining Agreement. In conclusion, the letter directed the Respondent to prepare a signed “full written report” of the incident, including “your recollections and observation of the events and your justification for your actions you took in response to this incident.” The letter directed the Respondent to deliver the report within five days of the Respondent’s receipt of the letter and, further, stated that “refusal to take such action and to cooperate in the investigation may have serious consequences regarding your employment.” The memorandum attached to the letter provided a chronology of events identifying all participants and specifically referencing the principal’s multiple attempts to obtain information from the Respondent. The Respondent failed to provide the written statement as required by the October 22, 2007, letter of reprimand and failed to otherwise provide information to the Petitioner. By letter dated November 15, 2007, from Principal McGuire to Superintendent Dr. Gail McKinzie, the principal requested that the superintendent issue a five-day suspension without pay to the Respondent for “gross insubordination.” The letter misidentified the date of the incident as October 4, 2007. By letter dated November 29, 2007, the superintendent suspended the Respondent without pay for five days. The letter, repeating the misidentification of the date of the incident, stated in relevant part as follows: On October 4, 2007, you denied a student’s request to go to the school clinic. It was determined that the student had a broken toe. Your administrator, Joel McGuire, has made six verbal requests and two written requests for information on this incident. The last request was made on October 22, 2007, in a formal letter of reprimand which stated “your refusal to take such action and to cooperate in this investigation may have serious consequence for your employment. This recommendation for a five day suspension without pay is provided for in Article IV section 4.4-1 of the Teacher Collective Bargaining Agreement and is a result of your continued insubordination and refusal to follow the requests of your immediate supervisor. Please be advised that future incidents of this nature may result in additional disciplinary action. The letter of suspension advised the Respondent that the suspension would be in effect from December 5 through 7, 10, and 11, 2007, and that he should report back to work on December 12, 2007. The Respondent served the suspension without pay. In a letter dated December 13, 2007 (“Subject: October 4, 2007, incident”), from Principal McGuire, the Respondent was advised as follows: I have made repeated verbal and written requests from you for your explanation of the events in which you participated on October 4, 2007, involving a student requiring medical attention. This is my final request to you for a written explanation of those events. You are herby directed to report to my office at 10:30 a.m. on Monday, December 17, 2007, and you are instructed to have with you at that time a written explanation of the events in question. You shall also be prepared to answer any questions regarding what occurred on that day and the actions you took. You should not have any classes at that time, but I will provide coverage for you if for any reason that is required. Please understand that this is a very serious matter, and you have previously received a five day disciplinary suspension. The next step in progressive discipline is termination, and insubordination can be just cause for termination. I hope that you will conduct yourself appropriately, if you wish to remain an employee of the Polk County School Board. On December 17, 2007, the Respondent appeared at the principal’s office at the appointed time, but asserted that he had not been involved in any incident on October 4, 2007, and declined to otherwise provide any information. Although the date of the incident, October 3, 2007, had been misidentified as October 4, 2007, in the referenced series of letters, there is no evidence that the Respondent was unaware of the specific event about which the information was being sought. It is reasonable to presume that the Respondent was fully aware of the matter being reviewed by Principal McGuire. In response to the December 17, 2007, meeting, Principal McGuire issued a letter dated December 18, 2007 (“Subject: October 3, 2007, incident”), essentially identical in most respects to the December 13, 2007, letter and correcting the referenced date. The letter scheduled another meeting for 10:30 a.m. on December 19, 2007. On December 19, 2007, the Respondent appeared at the principal’s office at the appointed time and declined to answer any questions, stating that he was invoking his rights under the Constitutions of the State of Florida and the United States of America. By letter to Superintendent McKinzie dated January 2, 2008, Principal McGuire recommended termination of the Respondent’s employment. Principal McGuire restated the chronology of the October 3, 2007, incident and wrote as follows: I have made repeated verbal and written requests of Mr. McCall to provide an explanation of the circumstances in order to include them in our investigation of the events. He refused to comply with each of those requests. He received a formal letter of reprimand and a five-day suspension without pay for his gross insubordination. Since his suspension, I have made written requests of Mr. McCall to provide an explanation of those events, and he has blatantly refused to do so. By letter also dated January 2, 2008, Superintendent McKinzie notified the Respondent that he was being suspended with pay and that she would recommend to the full school board that his employment be terminated. The letter set forth the grounds for the termination as follows: Since the incident on October 3, 2007, you have refused repeated verbal and written requests by the school administration to provide an explanation of the events which occurred on that date or to otherwise participate in the investigation of those events. As a result of your refusal to provide an explanation or participate in the investigation, you have received a formal written reprimand and a five-day suspension without pay. Since your suspension, you have again refused specific requests by your principal to provide an explanation of these events. Based on these facts, it is my opinion that you have intentionally violated the Principles of Professional Conduct of the Education in Florida by failing to make reasonable efforts to protect a student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety (Rule 6B-1.006 FAC). Further you have engaged in ongoing, gross insubordination by repeatedly refusing to take certain actions which are a necessary and essential function of your position as a School Board employee. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. Therefore, it is my conclusion that "just cause" exists for your termination as an employee of the Polk County School Board. The Respondent requested a formal administrative hearing to challenge the termination, and the Petitioner referred the matter to the Division of Administrative Hearings. Prior to the instant hearing, the Respondent made no effort to provide any information to the Petitioner regarding the events of October 3, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of David McCall. DONE AND ENTERED this 20th day of May, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2008. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831 David McCall 3036 Spirit Lake Drive Winter Haven, Florida 33880 Dr. Gail McKinzie, Superintendent Polk County School Board Post Office Box 391 Bartow, Florida 33831-0391 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's teaching certificate should be revoked, or otherwise disciplined, on grounds that he is guilty of engaging in grossly immoral conduct, as alleged.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: The COUNCIL alleges that, on or about April 3, 1979, PAGE engaged in a lewd, lascivious, immoral, and indecent act in the men's restroom of the St. Johns Marina, Jacksonville, Florida, by touching Officer Michael Legan in an unnatural manner; PAGE denies it. (Pre-trial Stipulation, Petition for Revocation, Testimony of Page.) The men's bathroom where the alleged incident took place is adjacent to the St. Johns Marina. The marina is adjacent to the St. Johns River, and across the street from the Alexander Breast Planetarium. A park area nearby is used by groups of children and other visitors to the planetarium. Prior to the time of the incident in question, the Jacksonville Sheriff's Office had received complaints from people at the planetarium, and nearby park visitors, concerning indecent exposure-type incidents occurring in the Marina's bathroom and surrounding area. (Testimony of Legan.) On April 3, 1979, because of this history of reported indecent exposure incidents, Officer Michael Legan, attached to the Morals Squad of the Jacksonville Sheriff's Office, had the Marina's men's bathroom under surveillance for possible homosexual or indecent exposure-type criminal violations. He was accompanied by his partner, Detective Sam Durden, who remained outside the bathroom. At approximately 3:30 or 4:00 p.m., in the afternoon, Officer Legan was wearing civilian clothes and standing inside the bathroom, alongside the wall directly across from a partition which separates the toilets from the urinals. At the time, he was trying to determine whether an unidentified individual using the toilet was there "for a legitimate purpose or whether or not he was attempting to expose himself." (Tr.20) 2/ Shortly thereafter, PAGE entered the bathroom and walked directly to the urinal closest to the door, located across from where Officer Legan was standing. At the same time, Officer Legan moved toward the door, and stopped alongside the wall almost directly behind PAGE. While standing at the urinal, PAGE made what appeared to be a rubbing motion with his hands in his genital area, and glanced over his shoulder in the direction of Officer Legan. This activity continued for about 30 seconds; then PAGE turned 90 degrees to his left, towards the toilet area and away from the bathroom door, held his penis in his hand and rubbed it with a masturbating-type motion. PAGE continued this activity for approximately 20 seconds, while he looked at Officer Legan, then looked down. While Officer Legan observed this activity at a distance of from seven to eight feet, no conversation took place. PAGE then replaced his penis in his pants, started to walk toward the door, and made a motion with his head which Officer Legan understood as a request to follow. In response to what he discerned as PAGE's nonverbal request, Officer Legan followed PAGE toward the door, with the intent to place him under arrest after exiting the bathroom, where Dective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, which separates an inner bathroom door from another bathroom door leading to the outside. As Officer Legan followed PAGE out of the inner bathroom door into the foyer area, PAGE stopped and said, "How are you doing?" Legan answered "Okay," and started to reach into his pocket for his badge. Simultaneously, PAGE grabbed and squeezed Legan in the groin area, and said, "It looks like you're okay." Officer Legan then identified himself as a police officer, placed PAGE under arrest, searched him, gave him the Miranda warnings, and took him to jail for booking. The findings indicated in paragraphs 4(a) through (c) above are, in the main, determined from the testimony of Officer Legan. Respondent PAGE denied, under oath, engaging in the activity described by Officer Legan. It is concluded that Officer Legan's testimony is more worthy of belief and should be accorded greater weight than the conflicting testimony of PAGE. Officer Legan testified with the detached, unbiased manner of a professional law enforcement officer; his narrative testimony was clear, positive, logical, and internally consistent. His prior testimony, by deposition, introduced into evidence by PAGE, is also consistent with and supports his testimony given at final hearing. No significant defects were shown in his capacity, ability, or opportunity to observe, remember, or recount the matters about which he testified. In comparison, PAGE is a teacher accused of grossly immoral conduct justifying suspension or revocation of his teacher's license. As the accused, he has an obvious bias and interest which affects his credibility. Officer Legan's lack of any discernible bias of interest, coupled with the failure to impeach him or discredit his testimony in any significant way, renders his testimony persuasive. (Testimony of PAGE, Legan; R.E. 3.) All Court and Sheriff's Office records pertaining to PAGE's arrest for the above-described conduct were expunged on August 28, 1979, by order of the County Court of Duval County, Florida. In order to qualify for such statutory expungent, the Court necessarily determined that PAGE had never been convicted of a criminal offense or municipal ordinance violation. The effect of expungent is to restore the accused, in the contemplation of the law, to the status he occupied before the arrest. (R.E. 1.) PAGE'S PERFORMANCE AS A TEACHER PAGE has been a competent and effective elementary school teacher in the Duval County School System since 1972. His area of particular expertise has been teaching disadvantaged children reading skills through structured, federally sponsored, reading programs. He has consistently been rated by his supervisors as a "satisfactory" teacher--the highest rating possible. Principals of the schools where he has taught have commended him for his knowledge and performance in teaching remedial reading, good rapport with students, and his ability to understand deficiencies of disadvantaged children and enhance their self-concept. Because of his skills, he was selected to operate the Hoffman Laboratory, a structured reading program for disadvantaged children, at Oceanway Elementary School, Jacksonville. Under his leadership, the Laboratory has been so effective that teachers from other counties have visited to observe and learn. (Testimony of Baker, Sandberg; R.E. 3,7.) PAGE'S CHARACTER PAGE, honorably discharged from the U.S. Marine Corps in 1960, has been an active and responsible ember of his community and the Baptist religion for many years. His church pastors know him as a moral, honest, and religious man, a person of flawless reputation and integrity. He has been married for 32 years, led a normal family life, and successfully raised three children. The charges against him are not in keeping with his wife's view of his character. (Testimony of Evelyn Page; R.E. 4,5.) The policy of the Duval County School Board is to ensure that teachers accused of sexual misconduct are not left in a position where they have contact with children. The Board perceives that such action, on its parts, is necessary in order to provide assurances to parents that their children will be safe. The ability of PAGE to effectively continue to teach at Oceanway Elementary School has been reduced, due to the expected reaction of parents and staff members to the charges against him. (Testimony of Gary Simmons, Sandberg.) To the extent that proposed findings of fact submitted by the parties have not been incorporated herein, they are rejected as being irrelevant to the decision reached, or unsupported by the evidence.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent's teacher's Certificate No. 137251, be SUSPENDED for two (2) years commencing upon entry of the Final Order in this case. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980.
The Issue The issue presented is whether or not the Respondent should be dismissed from her employment with the Dade County School Board. Petitioner called Mrs. Rose Ann Collum, Keith William Reilly (a minor), Anthony Rossi (a minor), Mrs. Carol Zappi, Robert Staelen, and Desmond Patrick Gray and had admitted Exhibits 1 and 2. Respondent testified on her own behalf. The Pre-Trial Stipulation was admitted as Hearing Officer's Exhibit 1. No transcript was provided and the parties' failure to file proposed Findings of Fact and Conclusions of Law within the time stipulated therefor is deemed a waiver of that right.
Findings Of Fact At all times pertinent hereto, Respondent was an employee of the School Board of Dade County under a continuing contract of employment as an elementary school teacher at Madie Ives Elementary Community School in Miami, Florida. She has taught there successfully since 1966 or 1967. Beginning on or about September 1, 1983 and continuing through and including May of 1984, Respondent engaged in a course of conduct with the students assigned to her which included paddling, and on multiple occasions during this period she administered this paddling, which is in the nature of corporal punishment, to various students (more than 20) in her class. The type of paddling involved was described variously by the two students who testified live at formal hearing as "did not hurt," "just an attention getter," "not bad," "only a little sting," "only when I was bad," and "I was never injured or hurt." Parents were never contacted in advance of the paddlings which seem to have had a spontaneous quality. These paddlings occurred always in the Respondent's 5th Grade classroom in front of the class at the side of Respondent's desk, and a thin narrow wooden paddle was used. The paddle was applied to the child's buttocks through his/her clothing. Paddlings never occurred in the principal's office or in the presence of any other adult. Respondent made no attempt to hide what was going on, but she admitted that some students would excitedly post "look-outs" at the classroom door, so it appears that there was a belief, at least on the children's part, that the paddlings were contrary to the School Board's or principal's stated policies. These paddlings occurred on an almost daily basis. Some children received a stroke once a week or every other day. It seldom occurred to the same child two days in a row. Keith William Reilly, now 12 years old, described the 1983-84 year's punishment for fighting as 4 strokes and for talking as less. Anthony Rossi, also now 12 years old, testified he was paddled 8 or 9 times in the 1983-84 school year and no one else was paddled more often than he. Most students got no more than two strokes on a single occasion. There is no evidence of physical or emotional harm to these students. The majority of parents contacted by School Board Investigator Robert Staelen indicated that if they had been contacted before the paddling incidents they would have or might have given permission to paddle. The two mothers who testified live corroborated this as to their own children. At least one set of parents, Mr. and Mrs. Zappi, objected to not being noti- fied before their daughter was paddled. They experienced diffi- culty getting the child to return to school after she related to them the paddling incident or incidents. There is no evidence of paddling of any child under psychological or medical treatment. During Conferences for the Record, conducted by Dr. Desmond Patrick Gray, Executive Director, Director of Personnel Control, Division of Management for the School Board of Dade County, after the School Board became aware of the paddling incidents, Respondent acknowledged that she was familiar with School Board Rule 6GX13-5D-1.O7. Normally, Dr. Gray would have recommended that Respondent be given a 10 working days' suspen- sion upon the facts of the paddlings as he understood them, but thereafter, believing that Respondent had been paddling for two school years and had been previously reprimanded for similar incidents, he recommended dismissal. Indeed, on January 29, 1982, Respondent had been formally reprimanded (P-2) by her then-principal, Robert D. Conk, for four apparently unrelated "events," the only pertinent one of which is phrased: "(1) You are frequently out of your room and students were left unsupervised. Upon your return, absences were reprimanded by your students who had misbehaved during your spanking them with a ruler or paddle." Respondent acknowledges that she received this reprimand, but states that it slipped her mind in her discussions with Dr. Gray because it was of a minor nature and the emphasis was not directed against paddling or corporal punishment, because Dr. Conk told her to forget the reprimand as an unimportant formality, and because Dr. Conk frequently sent students to her for discipline, including paddling. On or about August 22, 1984, Respondent was suspended from employment with the Dade County School Board upon grounds of incompetency, gross insubordination, and misconduct in office.
Recommendation That the School Board of Dade County enter a final order limiting the suspension of Respondent to a total of 90 working days, applying that period to the time she has already been suspended and reinstating her thereafter with any appropriate back pay and benefits. DONE and ORDERED this 22nd day of March, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1985. COPIES FURNISHED: Thomas H. Robertson, Esquire McCormick Bldg., 3rd Floor 111 S.W. Third St. Miami, Florida 33130 William DuFresne, Esquire One Biscayne Tower, Suite 1782 Two South Biscayne Blvd. Miami, Florida 33131 Phyllis O. Douglas Esquire Dade County School Board 1410 N. E. Second Ave. Miami, Florida 33132 Dr. Leonard Britton, Superintendent Dade County Public Schools 1410 N.E. Second Ave. Miami, Florida 33132 =================================================================
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of August, 1995.
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
